Cadder, EU style

The landmark judgment of the Grand Chamber of the European Court of Human Rights (“ECtHR”) in the 2008 case of Salduz v Turkey had a profound effect on criminal justice throughout the greater Europe area. By confirming unequivocally that criminal suspects had the right to legal representation from the earliest possible stage of proceedings, it effectively demanded fundamental changes to the domestic criminal law of several European states.

On our shores, the series of events (1) that climaxed in the UK Supreme Court ("UKSC") judgment in the case of Cadder made clear that Scots law was no exception and heralded the start of a truly pivotal time for our justice system. The Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010, which gave effect to Cadder, was debated in the course of a single afternoon and given Royal Assent just three days after the judgment.

On the very same day as the judgment, it was announced that a comprehensive review of Scots criminal law in light of Cadder was to take place. Led by Lord Carloway and assisted by a reference group comprising stakeholders from all corners of the Scottish legal profession, the Carloway review would go on to recommend stark changes – including the abolition of the "archaic" corroboration requirement and the statutory “suspect” status activated on detention under s 14 of the Criminal Procedure (Scotland) Act 1995, among other things.

In the months that followed Cadder, a glut of domestic cases (dubbed the “sons” and “grandsons” of Cadder) (2) sought to address some troublesome satellite issues that did not exist prior to the judgment – including notably the question of waiver of the right of access to a lawyer.

EU proposals

No doubt catalysed by Salduz, the EU’s Stockholm Roadmap on Procedural rights was adopted by the European Council in December 2009. Its aim was to strengthen the rights of suspects and accused persons in criminal proceedings. “Measure C,” which concerns the right of access to legal representation and legal aid, was one of the six key reforms it proposed.

In June 2011, the European Commission proposed that the European Parliament and the Council of the European Union produce a directive on the right of access to a lawyer and to communicate upon arrest, and gave some idea of what the right ought to constitute in practice. In view of the fact that a coherent line of post-Salduz ECtHR judgments had demonstrated the paramount importance of the right, the impact assessment accompanying the June 2011 Commission proposal described lawyer access as the “gate in the house” of procedural rights. The Commission proposal received praise from civil society groups for its firm basis in ECtHR jurisprudence.

Since then the EU legislative institutions, civil society groups and member states have been debating the precise form and content of the draft directive. Official trilogue negotiations among the Council, the Commission and the European Parliament began in September and are ongoing.

At times debate has been heated, and disagreement among key actors frequent. Many believe that the Council’s various working proposals, in particular, have weakened the initial Commission proposal. Given the distinct legal traditions of the EU27, it is perhaps unsurprising that the process has been, and remains, far from straightforward.

There are several clearly defined major points of contention, the resolution of which will have a significant bearing on the law and practice of criminal law in Scotland.

“Minor offences”

The first of these relates to the treatment of “minor offences” under the directive.

The Council proposes that the presence of a lawyer be not compulsory in relation to the investigation and prosecution of certain offences considered less serious. By way of example, the Council’s June 2012 General Approach text, article 2(4) suggested that the exception be envisaged for certain types of road traffic infringements or offences dealt with under non-criminal proceedings (4), where pre-trial detention is not possible and a sanction depriving the individual of their liberty will not occur.

The pragmatic rationale behind the proposal is clear. Yet it has been met with criticism and consternation from the European Commission, the European Parliament and civil society groups on a number of grounds.

One such ground is that the Council’s position is not supported by ECtHR jurisprudence. It has long been established that what constitutes a fair trial “cannot be the subject of a single unvarying rule but must depend on the circumstances of the particular case”: O’Halloran and Francis v United Kingdom (Application nos 15809/02 and 25624/02), Grand Chamber Judgment of 29 June 2007, at para 53. Thus the block nature of the proposed exemption is problematic.

The Council’s stance has also been criticised on the basis that it appears to advocate an extension of the “minor offences” exception far beyond the benchmark set by equivalent provisions in previous measures adopted under the roadmap. As a joint statement of 7 May 2012, signed by seven civil society groups, (5) explained:

“[The equivalent exceptions in previous measures apply] in relation to minor offences imposed by an authority other than a criminal court, not only in the pre-trial period but which never have a criminal process through the courts unless an appeal is made... On-the-spot or through-the-post fines – which do not require attendance at the police station, interrogation or attendance at court at all – should be what is envisaged by this amendment. The justification for this exclusion, which we can accept, is that if someone is accused in these circumstances they would be able to seek legal advice before accepting the conviction or fine because an administrative authority could not detain and interrogate them.”

That the June 2012 General Approach purported to extend the exception to minor offences committed and dealt with in prison or in a military context is therefore a cause for concern. What's more, the 4 October 2012 Council working document text proposed that certain minor offences having a criminal character in various jurisdictions’ domestic law be exempted also, as to require the presence of a lawyer would be disproportionate. This latter contention is arguably a rather controversial one. The detrimental effects of conviction for any crime, irrespective of its perceived severity, are often stressed by civil society groups who carry out casework, such as Fair Trials International.

Strict liability offences in the UK are the area where the minor offences exception is likely to be felt most, although the further the definition is extended, the more likely it will be that the exception would apply to more serious crimes, not just strict liability offences.

Practical detail: timing and content of the right

Another hotly contested subject is that of precisely when and how individuals suspected of, or charged with (6), a criminal offence should be able to exercise their right of access to legal representation.

The Council’s position seems generally to favour discretion for member states, (7) as opposed to establishing detailed requirements, something which irks the European Parliament in particular.

Timing

There is broad consensus among the EU legislative institutions that the directive should apply to individuals immediately from the time that they learn that they are suspected of, or charged with, a criminal offence (irrespective of any deprivation of liberty) until the conclusion of proceedings.

The Council’s 4 October working document, at article 3(2), proposes that suspects should have access to a lawyer from the occurrence of the earliest of the following events:
“(a) before [the suspect] is interviewed by the police or other law enforcement or judicial authorities;
(b) upon the carrying out by investigative or other competent authorities of an investigative or other evidence-gathering act in accordance with [a specified list];
(c) as soon as practicably possible after the deprivation of liberty”.

The phrase “as soon as practicably possible” is considered by some to be so vague as to be inconsistent with the Salduz principle. Set against this concern, the European Parliament and the Commission have striven to shift the focus of the directive as much as possible to the pre-trial stage, reflecting Strasbourg jurisprudence underlining the vital importance to overall fairness of action taken at that stage. (8) Provisional agreement has been reached that “without undue delay” should be substituted for this phrase: see 4 October working document, p 25.

From a Scottish perspective, it is worth recalling Lord Hope’s warning in Cadder that delaying the exercise of a suspect’s right of access to legal representation will be justified “only if the facts of the case make it impracticable to adhere to it” (at para 41). There is cause to suggest that the present wording in the new s 15A of the 1995 Act, inserted by the 2010 Act, does not reflect this ethos. It states that, in exceptional circumstances, police may delay access to a lawyer “as far as is necessary” to prevent detriment to the investigation or to facilitate the apprehension of other suspects: new s 15(8). This may be an area in which the outcome of the directive will directly impact Scots law.

The wording of subpara (a) in the above excerpt been criticised for lack of clarity as to whether the right would continue to apply during questioning. One interpretation of it would suggest that individuals would only be permitted to have access to a lawyer before an interview.

Content of the right

Discussion has focused on whether suspects will have the right to meet in person and in private with their lawyer.

The original Commission proposal stated simply: “[t]he suspect or accused person shall have the right to meet with the lawyer representing him”. Most stakeholders were pleased that specific mention had been made of a right to meet (as opposed to a right merely to communicate by other, less direct means).

This reflects the fact that the role of lawyers in criminal proceedings extends beyond the mere giving of legal advice, or even protecting “fair trial rights” in the strict, article 6 ECHR sense of the phrase. The ECtHR judgment in Dayanan v Turkey (Application no 7377/03), 13 October 2009, in particular para 32, is considered a leading authority on the content of the Salduz right. It was held that an accused must have access to the full range of services that legal access can provide. This, it was explained, entails organisation of the defence, searching for evidence that is favourable to the accused, preparation of questioning and cross-examination of prosecution witnesses, support for an accused who is in distress, and the assessment and monitoring of conditions of detention. The ECtHR described these factors as “fundamental” elements of the defence which must be exercised freely by the legal representative.

National discretion?

Subsequent wording proposed by the Council has consistently sought to dilute the original Commission proposal, appearing instead to promote a high degree of member state discretion. The Council’s 4 October text, at p 26, states:

“Member states shall ensure that a suspect or accused person has the right to communicate with the lawyer representing him, including prior to an official interview with the police or other law enforcement or judicial authorities. The duration, frequency and means of communications between the suspect or accused person and his lawyer may be regulated in national law and procedures, provided that the suspect or accused person is able to exercise his rights of defence effectively.”

Note that this excerpt does not even mention the right to meet in person, let alone to do so privately, with a lawyer. Issue has also been taken with the phrase “official interview”, due to fears that it could implicitly result in comments made in the absence of a lawyer under “unofficial” questioning (i.e. outside of a formal police interview setting) prejudicing suspects’ privilege against self-incrimination. The European Parliament is currently striving for wording that addresses these concerns. The Council appears receptive to the prospect of a compromise permitting meetings in private and referring to “questioning” instead of “official interviews”.

In Scotland, the 2010 Act, s 1 provides that detainees have “the right to a private consultation with a solicitor... by such means as may be appropriate in the circumstances”. Telephone consultations are specifically mentioned as an example of a permissible type of consultation. When interim guidelines issued to chief constables by the Lord Advocate pending the Cadder judgment first proposed their use, robust debate among Scottish defence agents ensued. A November 2010 Journal online article demonstrated just how polarised opinion on telephone consultations was. Some practitioners quoted were perfectly satisfied, whereas others refused to conduct them outright, considering them unacceptable and insecure.

Suspects’ entitlement to have a lawyer present at evidence-gathering acts is another specific issue under discussion. The Council proposes that a suspect shall, at the very least, have the right to have his lawyer attend identification parades, confrontations and experimental reconstructions of the crime scene (in circumstances where the suspect is himself required to be present). The European Parliament is seeking a number of important changes to this, namely:

• to entitle suspects also to have a lawyer present at investigative/evidence-gathering acts at which their own presence is permitted as a right (rather than restricting it to those acts where their presence is obligatory);
• to have searches added to the list;
• to have a caveat inserted stating that the right to have a lawyer present at such acts may only be restricted where there is a significant risk of evidence being altered/removed/destroyed pending the lawyer’s arrival.

Wilson and Black

Both the matter of “official interviews” and the possible inclusion of searches in the list of evidence-gathering acts that lawyers may attend have the potential to affect the outcome of the Crown’s appeal in the case of HM Advocate v Sonja Wilson (see Glasgow Bar Association web pages for discussion).

In December 2009, Ms Wilson was detained and questioned by police under s 23 of the Misuse of Drugs Act 1971 at her home address while a search was being conducted. The Crown intended to rely at trial on incriminating answers made without the accused having had access to legal representation prior to, or during, the questioning. A devolution issue minute was lodged on the basis that her right to a fair trial under article 6 ECHR had been violated because she had been denied access to legal representation prior to the police questioning. The defence argued that the police actions in the operation were calculated and premeditated, and that there were no compelling circumstances or urgency that could justify their proceeding to question the accused without access to legal representation.

The Crown argued that arranging for legal representation at the accused’s home would have been impracticable due to the fact that a search of the premises was taking place at the same time as the questioning. Reference was also made to the degree of flexibility with which Salduz should be applied. Sheriff Jones QC was unconvinced by the Crown’s submissions and sustained the devolution minute, holding that the privilege against self-incrimination was not limited to typical police interview situations and that the pre-planned nature of the police’s actions meant that the failure to permit access to legal advice was difficult to justify. The Crown lodged an appeal.

The benefits of having a lawyer present in cases like Sonja Wilson, where there is clearly a serious risk of self-incrimination, are plain.

The flipside of this coin is that it is perhaps unrealistic, and arguably unreasonable, to require the presence of a lawyer at purely objective evidence-gathering acts designed to discern whether an investigation should be instigated. This contention is supported by the domestic case of Duncan Black (see March 2011 summary in the Journal online).

Mr Black claimed an infringement of his privilege against self-incrimination, in that he was obliged to respond to a question enquiring whether he was prepared to take a breathalyser test in the absence of legal representation. Sheriff Summers at Perth Sheriff Court did not accept this argument, stating that the Cadder judgment was intended to apply to situations where an interview designed to elicit evidence had taken place. He considered that such circumstances did not apply in the case of Mr Black and that individuals accused of drink driving were faced with a “straightforward decision” as to whether or not to consent to a breathalyser test.

Confidentiality

The Council’s proposed wording for the circumstances in which confidentiality may be interfered with has been criticised as inadequately safeguarding the principle.

The Council’s 4 October working document, at p 31, suggests that, in “exceptional circumstances”, derogation from the principle of confidentiality should be permitted where:
“(a) there is an urgent need to prevent serious crime; or
(b) there is sufficient reason to believe that the lawyer concerned is involved in a criminal offence with the suspect or accused person”.

A 6 November 2012 joint statement signed by four civil society groups (9) cited ECtHR jurisprudence underlining the fundamental importance to the right to a fair trial of individuals’ ability to communicate confidentially with a legal representative (Brennan v United Kingdom (Application no 39846/98), judgment of 16 October 2001, at para 58). It also referred to UN rules and principles setting out detainees’, arrestees’ and prisoners’ rights to have adequate time and facilities to convey confidential instructions to a lawyer without delay, interception or censorship. The UN guidance states that advice may be given within the sight, but not within the hearing, of law enforcement officials. (10)

The four civil society groups who subscribed to the 6 November joint statement propose far stricter definition of the circumstances in which derogation from confidentiality should be permissible. They wish “serious crime” to be defined to include only offences involving the utmost urgency (e.g. offences occurring during public emergencies threatening the life of the nation; situations where immediate action must be taken to prevent harm to human life or physical integrity). They wish to oblige the authorities to produce factual evidence of a lawyer’s complicity in criminal conduct with the suspect before confidentiality may be interfered with on that basis. They propose that evidence obtained through surveillance in breach of confidentiality should be inadmissible at trial and that, where no evidence justifying a continuing derogation is found, surveillance should cease and the information gathered be destroyed. The Council appears to be receptive to these points.

Waiver

The Council’s 4 October 2012 working document, at p 39, indicates consensus among the EU legislative institutions that a waiver of the right to a lawyer should not be valid unless the suspect/accused first receives clear information about the content of the right to waive and, importantly, about the potential consequences of exercising it.

The four UKSC cases known as the “grandsons of Cadder” (McGowan v B [2011] UKSC 54; Jude, Hodgson and Birnie v HM Advocate [2011] UKSC 55) deliberately refrained from enumerating rigid criteria for establishing a valid waiver, instead advocating a case-by-case approach.

The questions to be read to criminal suspects in the solicitor access request form (“SARF”: see ACPOS Manual of Guidance on Solicitor Access, version 1.0, 2011, at annex B) contain nothing advising suspects of the consequences of waiver. In England & Wales, if a suspect says that he does not wish to speak to a solicitor in person, he must be informed that he has the right to a telephone consultation. If he states that he wishes to waive his right to a lawyer, the police are obliged to ask him why. Any reasons must be recorded. (11)

Neither of these simple steps is part of the procedure for the police in Scotland when dealing with the SARF. They appear necessary and reasonable steps to try to ensure that a waiver is given on a sufficiently informed basis, that it is “knowing and intelligent” or “voluntary, informed and unequivocal”. Indeed, in McGowan v B, Lord Hope (at para 49) recommended that this step be taken. Lord Hope recognised that, in some cases, more effort may be required:

“The court must be alive to the possibility that the words of the caution, and advice that the detainee has the right to a private consultation with a solicitor before any questioning begins and at any other time during such questioning which is required by s 15A(3), may not be fully understood by everyone. ‘Comprehending the Scottish caution: Do offenders understand their right to remain silent?’ David J Cooke and Lorraine Philip (1998) Legal and Criminological Psychology 13, was written some time ago and does not fully reflect current practice. But it serves as a warning that it should not be taken for granted that everyone understands the rights that are being referred to. People who are of low intelligence or are vulnerable for other reasons or who are under the influence of drugs or alcohol may need to be given more than standard formulae if their right to a fair trial is not to be compromised.”

At a seminar in Brussels, “Legal aid: Improving the quality and effectiveness of legal advice”, 27 November 2012, Jodie Blackstock of JUSTICE presented findings from a recent consultation with Scottish defence agents. She described reports of a concerning trend within the police of seeking to impede suspects’ access to a lawyer. Her findings suggest that the most prevalent tactic which results in suspects waiving their right is the suggestion that lengthy delay will result if they wish access to a lawyer. Blackstock stated that this demonstrated tendency towards encouraging waiver, coupled with the length and complexity of the SARF, has fostered a “systemic” issue of obstructed lawyer access in Scotland.

A clearly worded provision on waiver in the directive could go some way towards dealing with these concerns.

Right to inform third parties

The 4 October working document, at p 33, demonstrates that, under the directive, suspects or accused persons will have the right to have prompt intimation of detention sent to at least one person. Suspects or accused persons who are children, defined as those aged 18 and under, will be entitled to have a parent, legal guardian (or other appropriate person) informed of their detention and the reasons for it.

As yet there is no agreement as to whether detention must be ordered by a judge before the right to inform third parties will be triggered.

It appears likely that suspects or accused persons will have the right to communicate and meet with a person named by them in some form.

There is broad consensus that derogations from these rights should only be justified in order to prevent harm to the life, liberty or physical integrity of an individual, or to avoid seriously prejudicing the criminal investigation.

The outcome of negotiations in this area could ring the changes in everyday criminal procedure in Scotland. If the directive requires that detention be ordered by a judge as a precondition of the exercise of the right to inform a third party, further revision of the 1995 Act may be necessary (at present, detentions are carried out by police using their powers under s 14(1)). Similarly, the current Scots law (which confers only the right to have intimation of detention sent to a reasonably named third person) would fall short of the requisite standard should the directive provide that detainees are to be granted the right to meet and communicate with such a third party. Moreover, since "child" is defined in the 1995 Act, s 15 as a person under 16 years of age, there may be repercussions if the directive sets the age of majority at 18, as is the current thinking.

Lawyer competence and quality of advice

This important question has not been addressed directly in the directive. It is likely to be dealt with in the next roadmap measure – a directive on legal aid. (12)

Related aspects of the current duty system in place in Scotland were criticised by JUSTICE at the Brussels seminar referred to above. A particular concern was that the initial use of telephone advice effectively deprives the suspect of the ability to decide whether they are to benefit from access to a lawyer in person – instead placing the decision in the hands of the lawyer at the other end of the phone.

The accompanying JUSTICE study revealed the widespread practice of lawyers simply advising silence in a brief telephone consultation, often lasting five minutes or less, before returning to their other work (or trying to get back to sleep), except in the most serious cases. Statistics extrapolated in the course of the study suggested that only 12% of those who seek legal advice over the telephone under the duty system actually end up receiving legal advice in person at a police station. (13) JUSTICE highlighted how difficult it is for suspects to stick to an advised strategy, such as remaining silent, when faced with professional interview techniques and the shifting dynamics of such a situation. They criticised the prevalence of telephone advice in Scotland for failure to reflect the full spectrum of functions that defence agents should perform.

The same JUSTICE study references earlier research demonstrating that publicly employed lawyers giving telephone advice and attending police stations in Scotland were often unsure of how to act. They reportedly felt overwhelmed by the responsibility of making important decisions and responding to the diverse and unpredictable range of circumstances that might unfold in such settings.

Both JUSTICE and Fair Trials International argue that the best way to ensure defence agents’ competence in giving advice to criminal suspects is through accreditation and training focused on practical skills and regulated by bar associations and providers of legal services.

What next?

Several trilogue negotiations have now taken place. The trilogue stage is scheduled to run until spring 2013. Assuming that a conciliation committee (14) is not necessary, a joint text will then be produced and voted on by the Council and Parliament within a six to eight week deadline. Much depends on the speed of negotiations, but it would appear likely that the final joint text will be produced and adopted in the first half of 2013.

How much it will resemble the current draft remains to be seen. Often the production of a joint text is only possible after some creative trade-offs have taken place between the Council and Parliament.

From a purely legal perspective, the UK Government’s decision on whether or not to opt in to the directive in early 2013 is unrelated to the headline-grabbing police and justice block opt-out that may be exercised at the end of 2014. (15) But the changeable political climate (16) makes the task of predicting how the coalition will behave in relation to the lawyer access directive a difficult one. Some things, however, are certain. If the UK participates, the directive will become the next major landmark in a turbulent time for Scots law – and one that will impact directly upon the lives of Scottish practitioners.

Notes

(1) The unanimous judgment in HMA v McLean [2009] HCJAC 97, then the leading Scottish authority on the human rights implications of the absence of legal representation for suspects at the investigation stage of criminal proceedings, held that it should continue to be treated as merely one factor in the overall consideration of fairness, particularly in light of the presence of other procedural safeguards in Scots law and the “degree of flexibility” with which Salduz should be interpreted. Cadder was effectively an appeal against McLean.

(2) See article in The Journal online on the "Cadder family" of cases (December 2011); June 2012 article by same author.

(3) 6 November joint statement of Open Society Justice Initiative, Fair Trials International, Irish Council for Civil Liberties and JUSTICE, at p 2.

(4) The issue of correctly categorising proceedings has a particular resonance in certain continental jurisdictions whose domestic procedures uneasily straddle the line separating criminal and administrative proceedings, e.g. the Dutch “transaction” procedure and the use of the streamlined Strafbefehlsverfahren procedure in Germany and Austria.

(5) Open Society Justice Initiative, Irish Council for Civil Liberties, JUSTICE, Fair Trials International, European Criminal Bar Association, Greek Helsinki Monitor, Hungarian Helsinki Committee.

(6) Within the meaning of the Engels and Others v The Netherlands criteria.

(7) A purist of EU law might argue that any reference to national discretion in the context of a directive is, by definition, redundant. The very function of directives is to achieve a single, pan-EU result by a given date without specifying the exact means of achieving it in member states’ domestic law. In such an instrument, where national discretion is implicit throughout, making specific mention of national law in a provision must be read as having some particular noteworthiness. To do so arguably impacts negatively on legal certainty.

(8) Evidence obtained at the pre-trial stage “determines the framework in which the offence charged will be considered at the trial”, and is the stage at which suspects are most vulnerable (Pischalnikov v Russia (Application no 7025/04), judgment of 24 September 2009).

(9) Open Society Justice Initiative, JUSTICE, Fair Trials International and Irish Council for Civil Liberties.

(10) Rule 93 of the Standard Minimum Rules for the Treatment of Prisoners; Principles 8 and 22 of the UN Basic Principles on the Role of Lawyers.

(11) These requirements appear in Code C of the Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers, para 6.5.

(12) “Measure C2” of the Roadmap – Commission impact assessment expected in June 2013.

(13) This is consistent with earlier statistics collated by ACPOS which demonstrated a waiver rate of 75-80% in the period August 2010 to April 2011 across the country (see ACPOS Solicitor Access Data Report, 23 June 2011, p 8).

(14) If no agreement may be reached following trilogues, the Council and European Parliament (with the Commission acting as moderator) conduct final negotiations to produce a joint text within a six to eight week deadline. This is known as a conciliation committee.

(15) Protocol 36, article 10(1) of the post-Lisbon consolidated EU treaties suspends the jurisdiction of the Court of Justice the European Union (“CJEU”) and the Commission's powers to bring infringement proceedings in the area of pre-Lisbon (that is, pre-1 January 2009, the date of the Lisbon Treaty’s entry into force) police and justice measures for a period of five years. Protocol 36, article 10(4) states that, at least six months before the end of the five year transitional period (i.e. no later than 1 June 2014, as the five year period expires on 1 December 2014), the UK may refuse to accept both the CJEU’s jurisdiction and the Commission’s power to launch infringement proceedings for such measures. This is what is referred to in common parlance as “the opt-out”. It is essentially a decision to subscribe to pre-Lisbon police and justice measures in their entirety or to reject them in their entirety. A decision to opt out would first require the approval of both the Commons and the Lords.

(16) On 15 October 2012, Theresa May announced the coalition Government’s “initial decision” that it was “minded to opt out” of pre-Lisbon police and justice measures. This was expressly stated not to be a final decision and was accompanied by a pledge to consult with the relevant committees and to opt back into individual measures subsequently if it was in the national interest. May was terse about what, if any, such measures she would consider opting back into, however.