Rights under question

Has our law been strengthened or weakened by the Supreme Court's decision in Cadder and its sequel, the emergency bill? A heady mix of legal and political issues have been bound up in the vigorous public debate since the decision was announced on 26 October.

On the one hand, the Scottish Government believes it has had to rush into change, having had its hand forced by a court composed mainly of non-Scots, one which is exercising an influence well beyond what was intended when the devolution settlement was drawn up. And given the consistent prior views of the Scottish judiciary, now overruled by the decision, there may be those who fear that the distinctiveness of the Scottish system is in danger of being lost in the face of developing European human rights jurisprudence.

Against that are ranged the voices of those who have argued for some years that the law on the rights of suspects in police detention pre-Cadder has increasingly looked at odds with developments in other countries subject to the European Convention on Human Rights. The decision having gone as they predicted, concern has turned to whether the haste to try and prevent further prejudice to current and future prosecutions might result in further detriment to human rights even as some weaknesses in the law were being corrected.

Emergency times?

The Scottish Government was in no doubt that it had to act. "We did not choose this situation, but we are required to address it", Justice Secretary Kenny MacAskill told the Parliament in moving the adoption of the emergency procedure for what is now the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010.

Challenged by Liberal Democrat spokesman Robert Brown to state why there was such urgency if the Lord Advocate's interim guidelines were being followed by the police, Mr MacAskill maintained that "at present we face the possibility of detention being struck down. In fact we could find ourselves in the position of not having the power to detain, full stop".

Although Labour and Conservative spokespersons voiced reservations about legislating in haste, it was only the Liberal Democrats and the two Green MSPs who voted against the measure going through without the normal consultation procedures.

In taking this stand they were reflecting the views of Professor Alan Miller, chairman of the Scottish Human Rights Commission, who wrote to MSPs: "Interim steps which are already in place provide an adequate basis on which to launch a broad based consultation so that the practical implications of the decision are properly understood before a response is adopted. This should take into account experience so far in implementing the Lord Advocate's interim guidance as well as experience elsewhere in Europe...

"The Commission is concerned by a number of elements of the [bill]... Not only does the timetable present no reasonable prospect for a considered response, but the proposed extension of the six hour time limit for detention on reasonable suspicion to 12 and then possibly 24 hours at the discretion of the police seems a disproportionate response to a decision which was based on the need to recognise the vulnerability of those questioned in police detention."

Familiar complaint

Challenged to say whether, for example, the Scottish Human Rights Commission and the Glasgow Bar Association had been consulted, MacAskill insisted that ministers had cast their net widely to ensure that courts, prosecution, police and defence all had their views taken into account. Consultation with the profession has, however, been limited by comparison with some agencies, and the barely healed wounds surrounding the introduction of the interim guidelines, which began to be implemented before their existence was even revealed to the profession, have reopened as far as defence lawyers are concerned.

"The Government plainly rushed to change the law without proper consultation", commented Bill McVicar, convener of the Society's Criminal Law Committee. He added: "The Crown and the Government seem to be obsessed with the view that they are acting for the victims of crime. Whatever happened to the public interest? There is no public interest in innocent people being convicted, yet the proposed changes and the actual changes raise the spectre of that very thing."

John McGovern, President of the Glasgow Bar Association (GBA), took a similar view: "The 'emergency' Act was again imposed without any consultation with the profession, other than on extension provisions. So having given reassurance to the Law Society that there would be no repeat of the interim guidelines failure to consult, the authorities at the same time were drafting a bill over a period of months without speaking to the profession.

"I think everyone has to take stock now. The Act changes the working practices of criminal lawyers, but was drafted, presented, debated and passed without those lawyers having been spoken to in a meaningful way.

That, to me, highlights the point that the GBA realised a long time ago, and which Robert Brown MSP recognised in the debate on the bill: that there is now a pattern emerging of Government legislation which is designed to undermine the defence and offer a support to the prosecution."

Under the guidelines

The majority view at least appears to be that once the difficulties relating to the Solicitors' Code of Conduct had been resolved, and some concession made on legal aid, the interim guidelines were "working reasonably well", as McVicar said of his area (Dumfries). "Most of the calls have been dealt with by telephone", he observed, a point also made by fellow committee member Peter Lockhart in Ayr. "While initially there were problems regarding whether these interviews were private, that matter seems to have been resolved after the police arranged for a dedicated phone line, where suspects could have a private call with their solicitor", Lockhart notes.

He added: "We have had excellent co-operation with the police, particularly after I contacted the local divisional commander and fiscal. Certainly, good communication between local faculty, police and fiscal, is a worthwhile exercise."

A different view was taken by the GBA's Gerry Sweeney. "I do not regard telephone consultations with a client under detention as an acceptable, or even secure, form of communication in those circumstances; and I shall not give legal advice pertinent to a case under those conditions", he stated. "The Lord Advocate's guidelines are not Convention compliant, and my position was made clear by fax to all divisional commanders in the Glasgow area following their publication."

According to Sweeney, "It is simply not being appreciated at the moment that Salduz, and by extension Cadder, is about far more than the delivery of strictly legal advice in relation to a police interview." The duty of the lawyer, he added, is to have regard to the full circumstances of the detained person in addition to their legal requirements, articles 3, 5 and 7 of the Convention being relevant as well as article 6.

"As such, the lawyer requires full, and perhaps repeated, access to the client to effect holistic enquiry and assistance at a time of acute vulnerability, stress and uncertainty - a situation greatly heightened if the client has a history of mental or other health issues, or is 'vulnerable' in any other regard."

In short, the lawyer requires to visit with his client, and perhaps intervene or communicate with other necessary persons, for the access right to be 'practical and effective'.

Inside the Act

Against that background, what is in the emergency Act?

Section 1 amends the detention provisions in ss 14 and 15 of the Criminal Procedure (Scotland) Act 1995 so that anyone detained under s 14, or who attends voluntarily for questioning by police, or is arrested but not charged and is detained for questioning, has, in addition to the existing right to have a solicitor informed of their situation, the right to a private consultation with a solicitor before and during any questioning by the police. Consultation is "by such means as may be appropriate in the circumstances", including by phone. In exceptional circumstances - the addition of this phrase was the only amendment to the bill accepted by the Government - exercise of the new right may be delayed so far as necessary in the interest of the investigation or to prevent further offences or apprehend others.

Section 2 confers a power on ministers to make regulations permitting advice and assistance to be made available to detained clients without reference to the financial limits.

More controversial is s 3, which extends the standard period of detention from six hours to 12, and permits an officer of the rank of inspector or above (and who has not been involved in the investigation) to authorise a further 12 hours in indictable cases, if satisfied that this is necessary to secure or preserve evidence and that the investigation is being conducted diligently and expeditiously. Parliamentary attempts to restrict the time limits and to require any extension to be authorised judicially were unsuccessful, although the detained person or their solicitor does have the right to make representations to the reviewing officer.

Section 4 confirms that the foregoing provisions take effect where any detention begins on or after the commencement day (30 October 2010, being the day after royal assent: s 9).

But the Act does not stop there. Section 5 provides that any application for extension of time to appeal (not confined to Cadder-related cases) must contain a statement of reasons for the lateness, and be intimated to the Crown, which may request an opportunity to make representations. Section 6 enacts a three-week time limit for the lodging of a bill of suspension or advocation, extendable at the discretion of the High Court, subject to similar provisions for intimation and opposition. And s 7 imposes on the Scottish Criminal Cases Review Commission (SCCRC) the duty, in applying the "interests of justice" test to a proposed reference to the High Court, to have regard to "the need for finality and certainty in the determination of criminal proceedings"; and confers on the High Court a new power to reject a reference if it considers this test is not met.

Ensuring finality

Apart from some discussion of s 7, these latter provisions did not receive much attention in the Parliament, though the point was made that they make the bill much wider in scope than previous emergency measures. It is understood that the Crown views them as necessary in order to achieve the principle of finality which featured strongly in the Cadder opinions (and was the reason given by Lords Hope and Rodger for not allowing closed cases to be reargued, subject to SCCRC intervention).

Many solicitors are unpersuaded. In a submission to MSPs (available at www.journalonline.co.uk/forum, open forum page), remarkably full given the short time to prepare it ahead of the debate, the GBA argued that no need had been demonstrated for emergency treatment of the time limit provisions, particularly having regard to the acceptance of the principle of acquiescence by the Judicial Committee of the Privy Council in Ruddy v Griffiths 2006 SCCR 151.

"This case was and remains sufficient to deal with any arguments about attacks on convictions which come far too late", the GBA maintained.

It is worth noting also Lord Rodger's obiter view in Cadder that any proceedings would be subject to the one year time limit introduced to the Scotland Act last year, to cap the number of cases seeking damages in cases based on slopping out in prison and the like.

In an extended critique of s 7, the GBA pointed out that the Sutherland Committee, which recommended the setting up of the SCCRC, stressed the need for a single broad ground of appeal to allow flexibility in the consideration of appeals, and the Commission's role as a body independent both from the courts and from the political process - one "which can take a different, less formal and broader approach, to alleged miscarriages of justice".

Pointing out that the Supreme Court had deliberately refrained from providing any guidance to the Commission as to how it might consider any applications resulting from the Cadder decision, an approach which reflected the "respect and sensitivity to the work of the Commission" shown by the High Court, the GBA submitted: "The justices considered that it would be improper to influence what [the SCCRC] did with those cases. Why - given the care and sensitivity to enshrine the Commission's independence in statute - would this Government seek to influence its role in this way?

"The court too recognises the statutory exception to the finality principle - why does it have to be reminded of that?"

Legal aid questions

McGovern and Sweeney of the GBA add that the current level of legal aid provision does not yet make the suspect's article 6(3)(c) right to their lawyer of choice "practical and effective". Sweeney claims: "It is an engineered target that the existing level of legal aid funding, and the definition of unsocial hours, legislates heavily against the attendance of the chosen lawyer upon his detained client."

In McGovern's view, "to make the legal aid provisions affecting police station visits, post-Cadder, ECHR compliant, all that is required is to remove reg 7 from the Criminal Legal Assistance (Fees and Information etc) (Scotland) Regulations 2008. Thereafter, it would be a question of adjusting the rates and the 'out of hours' definition to those in line with Northern Ireland and England & Wales. It's not fair that for legal aid purposes in Belfast for example, out of hours begins at 7pm and ends at 9am, but in Glasgow it doesn't begin till 10pm and ends at 7am. In Belfast, out of hours includes weekends and bank holidays, but in Glasgow it doesn't. That cannot be justified. The GBA Working Group should produce its report, hopefully, in late November. It will offer a practical and effective solution to the covering of police station visits which will not impact significantly on the legal aid budget or involve more public sector pension or administration costs being incurred by the taxpayer."

The bigger picture

Looking at the wider implications of the reforms, criminal defence lawyers have genuine concerns that longer permitted periods of detention could have an insidious effect in undermining the right to silence (and lack of adverse inference to be drawn from silence), leading on to an attack on the very requirement for corroboration, one of the cornerstone protections for the accused in Scots law.

Bill McVicar commented: "If the right to silence is altered by adverse inferences being drawn therefrom, we will need to attend at the station to obtain proper details from the police before interview, and I suspect that attendance during interview will become commonplace. Our legal system is likely to be 'anglified' by these changes. Whether that is good or bad remains to be seen."

However, he is "frankly appalled" that the law of corroboration might be affected. "That is still the most effective safeguard a suspect may have in any legal system. The right to legal advice has no link to corroboration in my view."

Gerry Sweeney suspects that "The unconsulted change also probably heralds an establishment/executive intention to vandalise other intrinsically noble and internationally coveted principles of our law - corroboration, 15 person juries, right to silence etc."

To what extent all this will be covered by the review to be undertaken by Lord Carloway, announced by the Justice Secretary at the same time as the emergency bill, remains to be seen. It is believed that the terms of reference are likely to include the implications for the law of evidence. The report has been requested "within months", in order to allow legislation to be considered during the 2011-12 parliamentary session.

Final appeal?

One aspect of the law that will be beyond Lord Carloway's remit but which the Scottish Government definitely has in its sights is the very ability to take criminal cases to the Supreme Court. MacAskill made much in the parliamentary debate of the wide encroachment under devolution on the previously final authority of the High Court, voicing some resentment also at the Supreme Court (with two Scots out of seven judges in its ranks) overturning a unanimous domestic Scottish bench. That coupled with the strict vires control of the Scotland Act left the SNP administration feeling at some disadvantage compared with the leeway afforded to the UK and other European governments when faced with the need for reform.

Clearly there are political considerations behind these comments. But proposals floated by a UK Government minister, the Advocate General for Scotland, could in effect achieve what the SNP appear to be seeking, according to Aidan O'Neill QC (who also appeared for the JUSTICE organisation, which was allowed to be heard as an intervener in the Cadder appeal).

O'Neill is referring to a paper on possible changes to the role of the Lord Advocate, which might see her prosecution functions become the responsibility of a Scottish equivalent of the Director of Public Prosecutions. This, he argues, would have the effect of removing acts of the prosecution service from the human rights controls in the Scotland Act, and therefore the jurisdiction of the Supreme Court in Scottish criminal matters. (For his description of the paper and his arguments on its implications, click here. 

The Cadder decision has certainly added spice to what was initially presented as a rather technical matter. The debate as to its implications for our devolved government is set to run.

Conflict with the Convention: Cadder on Scots law

A summary of the key points of the Supreme Court's reasoning

Cadder was a decision by seven justices of the Supreme Court. The leading opinions were delivered by Lords Hope and Rodger, the two Scottish justices - each of whom accepted the views of the other. As defined by Lord Hope, the question was "whether the Crown's reliance on admissions made by a detainee during his detention while being interviewed by the police without access to legal advice before the interview begins is incompatible with his right to a fair trial", i.e. under article 6 of the European Convention on Human Rights.

In HMA v McLean 2010 SLT 73, a seven judge bench of the High Court held that there was no incompatibility, despite the European Court of Human Rights having decided in Salduz v Turkey (2008) 49 EHRR 421 that a violation had occurred in similar circumstances. The guarantees otherwise available under the Scottish system, the judges ruled, were sufficient to avoid the risk of unfairness.

As a preliminary, Lord Hope held that the fact that the sifting judges had refused Cadder leave to appeal, on the authority of McLean, was no bar to an application for special leave to the Supreme Court, but that a complaint about the sheriff's directions to the jury on dock identification did not raise a devolution issue for consideration by the court. He then turned to the Crown's reliance on the police interview, a recording of which had been played to the jury at Cadder's trial.

Lord Hope recognised that McLean was fully in line with previous Scottish authority. He also accepted that the European judges made some observations consistent with the view taken in McLean that Salduz did not lay down an absolute right to legal advice at the early stages of police interrogation. But, he continued (at para 33): "The more one reads on through the judgment, however, the clearer it becomes that the Grand Chamber was determined to tighten up the approach that must be taken to protect a detainee against duress or pressure of any kind that might lead him to incriminate himself." The sentence at para 55 of Salduz, "The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction", could, he said, "hardly be more clearly expressed".

The High Court's alternative interpretation was not tenable, and to suggest that fairness in this context would depend on other guarantees in the particular jurisdiction "would be entirely out of keeping with the Strasbourg court's approach to problems posed by the Convention, which is to provide principled solutions that are universally applicable in all the contracting states... There is no room in its jurisprudence for, as it were, one rule for the countries in Eastern Europe such as Turkey on the one hand and those on its Western fringes such as Scotland on the other". Any flexibility only permitted a departure from the general requirement if the facts of the case made it impracticable to adhere to it, not a systematic departure such as under the 1995 Act.

On this point Lord Rodger noted that the Salduz reasoning stemmed from the implied rights of an accused person not to incriminate himself, first recognised in Saunders v United Kingdom (1996) 23 EHRR 313, and to early access to a lawyer, as in Murray v United Kingdom (1996) 22 EHRR 29.

The justices considered that Salduz was now firmly established in the European Court's jurisprudence, and most European states that did not previously recognise the right laid down were taking steps to do so. The other guarantees under Scottish procedure were commendable, but were "incapable of removing the disadvantage" to a detainee of making incriminating admissions without having had access to legal advice. That applied equally to the corroboration rule, because there had been such supporting evidence in Salduz.

Lord Rodger said that the only relevant safeguards in Scots domestic law were those designed to protect the right not to incriminate oneself. After tracing the "many twists and turns" the law had taken on that subject, he concluded that the detention procedure, being deliberately designed to deny access to a lawyer at the stage a suspect was questioned by the police, was "the very converse of what the Grand Chamber holds is required by article 6(1) and (3)(c) of the Convention... For this reason, in my view there is not the remotest chance that the European Court would find that, because of the other protections that Scots law provides for accused persons, it is compatible with article 6(1) and (3)(c) for the Scottish system to omit this safeguard" (para 93).

The Salduz rule being one of admissibility, the Lord Advocate could not rely on the exemption from compliance with the Convention provided by s 57(3) of the Scotland Act, because s 14 of the 1995 Act was stated to be without prejudice to the admissibility of answers given by the suspect. On the wider effect of the decision, Lord Hope held that the scheme of the Scotland Act did not leave any room for holding that it should not receive retrospective effect, but that the principle of legal certainty provided "strong grounds" for ruling that the decision should not permit the reopening of closed cases. Thus it applies to cases where a trial has not yet concluded, and to appeals brought timeously but not yet concluded, but not to cases that have been finally determined. Both judges recognised the possibility of an application to the Scottish Criminal Cases Review Commission notwithstanding the finality principle, but made it clear that it was for the Commission to consider where the public interest lay in considering any application based on their decision. Following the judgment, the Crown stated that there were 13 appeals before the appeal court relating to this issue and 3,471 cases in which the issue had been raised. It was estimated that around 120 solemn cases - 105 of them sheriff and jury - were affected. Each would be reviewed in the light of the judgment, to see whether there were other sources of evidence that could be relied upon for sufficiency.

The emergency legislation: a comment

The Society's Criminal Law Committee's response to the 2010 Act 

The Government's response to Cadder, the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010, entered into law four days after the Cadder decision.

The bill was debated and passed in half a day. The detention period has been extended from six hours to 12, with a further 12 hours permitted by a senior police officer, though there was no clear evidence that a six hour detention period was inadequate. The Lord Advocate's interim guidelines, introduced in June after the Cadder hearing, have seen detainees able to access advice from a solicitor within that period, through the work and commitment of police and solicitors working together.

Placing this right to advice from a solicitor in statute was welcome. However, the extension of the detention period, without clear evidence or public debate, is entirely unwarranted. In England & Wales, which allows a period of detention of 36 hours and further on application to a magistrate, there is an initial review at six hours. No such protection is offered to detainees in Scotland, who may now be held for up to two or four times the limit permitted in Scotland over the last three decades.

Much as the extension of the detention period was not justified by the Cadder judgment, the same with the sections on appeals in the emergency legislation. The Scottish Criminal Cases Review Commission is bound by law to "have regard to the need for finality and certainty in the determination of criminal proceedings", a requirement which covers all criminal cases and not just those dealing with admissibility of evidence during detention. Moreover, the High Court will be able to deny any referrals from the Commission. This is despite Lord Rodger making it clear in his judgment in Cadder that it was not for the Supreme Court to comment on the Commission's approach.

While it has been argued that the "anomaly" of the Scotland Act 1998, which requires government not to contravene the European Convention on Human Rights and allows a London-based court to adjudicate, the plain fact is that whether decided in a court in London or in Strasbourg, a system which did not allow detainees to access advice from a solicitor was and is unacceptable.

The judgment of the European Court of Human Rights in Salduz v Turkey made the principle of access to legal advice clear. JUSTICE showed in its intervention in Cadder that other European countries which did not allow detainees access to a solicitor have, since Salduz, been changing their laws to accommodate that right. As Lord Hope said: "If Scotland were not to follow the example of the others, it would be almost alone among all the member states in not doing so."

In response to a judgment that held that the rights of detainees in Scotland are being breached, legislation is introduced that will, on the one hand, protect that right and, on the other, erode the rights of detainees and victims of miscarriages of justice.

With two years since the judgment in Salduz, and a year since government agencies started to discuss the implications of that decision, it is an immeasurable disservice to the Scottish criminal justice system that these unwarranted changes have been rushed in over the course of seven days. Emergency legislation requires an emergency: the hope is that Lord Carloway's review considers these issues with the gravity that they deserve.