Threat, or opportunity?

The potential impact of the awaited decision of the Supreme Court in Cadder v HM Advocate has been greeted with some alarm in the Scottish legal world, as well as in the wider media.

The Cadder appeal was prompted by the decision in 2008 of the European Court of Human Rights in Salduz v Turkey, Application no 36391/02, where the court held that in order for the article 6 right to a fair trial to remain practical and effective, access to a lawyer should be provided from the moment of the first interrogation of a suspect by the police, unless it can be shown that there are compelling reasons to restrict this right. The court also noted that such compelling reasons would only exceptionally justify denial of access to a lawyer, and that even where such denial is justified, this restriction must not unduly restrict the article 6 rights of the accused. The decision in Salduz has been consistently followed in subsequent cases before the court, thereby confirming the general principle that the interviewing of suspects by the police in the absence of a lawyer constitutes a violation of article 6 of the Convention – the “Salduz principle”.

Open to interpretation?

The application of Salduz in Scotland was most recently considered by the High Court in McLean v HM Advocate [2009] HCJAC 97. The High Court considered that Salduz was open to interpretation, and that the key factor in determining whether there was a violation of article 6 was whether the prosecution’s reliance on a statement made by the accused in the absence of a lawyer would irretrievably prejudice the rights of the defence. In considering whether a trial had been conducted fairly, the court considered that the particular circumstances of the case must be examined as well as the guarantees put in place under the relevant jurisdiction to ensure a fair trial. The High Court concluded that there were sufficient safeguards in place in the Scottish legal system to ensure a fair trial for the accused in such a situation.

Other European jurisdictions have interpreted Salduz differently, and the majority of member states in the European Union provide for access to a lawyer during police interview. The only other jurisdictions which do not are Belgium, France, Ireland and the Netherlands. In each of these countries (with the exception of Ireland), steps have been taken either by the judiciary or by the legislature to amend their procedures for police interviews in order to comply with Salduz.

In England & Wales, those held in police custody have had the right to consult with a lawyer at any time since 1984, under s 58(1) of the Police and Criminal Evidence Act 1984. The position in other common law jurisdictions is similar. In Canada and New Zealand, anyone arrested or detained has the right to instruct a lawyer without delay. In Australia (with the exception of one Territory), suspects have the right to communicate with a lawyer before being questioned by the police. In the United States of America, suspects have had the right to legal counsel during police questioning since Miranda v Arizona in 1966. Although there are variations in the right of access to a lawyer during police questioning, Scotland appears increasingly alone in denying such access during detention.

Recognising concerns

The Committee for the Prevention of Torture (as established by the European Convention for the Prevention of Torture), following visits to Scotland in 1994 and 2003, noted in both reports that persons detained by the police had no right to access a lawyer and recommended that anyone taken into police custody should be allowed such access. This is therefore a problem that was highlighted some time ago, long before the decision in Salduz.

In McLean, the court commented at para 7 that the rules regarding interrogation of suspects by police “have been in place for nearly 30 years without serious concern in Scotland that the interests of suspected persons are being prejudiced”. It is clear that this is no longer the case. Indeed, the Lord Advocate recently issued guidelines detailing the steps which must be taken to provide a suspect with access to a solicitor before or during police interview pending the decision in Cadder.

It is time for Scotland to join the majority of European and common law jurisdictions in providing access to a lawyer from the moment a suspect is taken into police custody. The law must continue to adapt in order to meet the ever precarious balance between the public interest and the rights of individuals. Such adaptation is an essential part of our legal system and should be seen as an opportunity, rather than a threat.

• Sarah Smith, Scottish Human Rights Law Group