Cadder v HMA – a political inconvenience?

It will come as no great surprise that most politicians, including those of the Scottish variety, are significantly motivated by a need to be popular, and in so doing, they sometimes make statements calculated to increase that popularity. These utterances may have no basis in fact, logic or history but they could well lead to some extra votes. Votes, of course, are important to politicians, particularly in a world of hung parliaments and proportional representation. Nothing could illustrate this issue better than the recent decision of the Supreme Court in Cadder v HMA.

The basis of the Cadder case was the developing jurisprudence over a number of years in relation to the European Convention on Human Rights, culminating in the Grand Chamber's decision of Salduz v Turkey. This stated that in order for an accused person to have a fair trial, they should have legal advice prior to their interrogation by the police. This approach is not groundbreaking, it is not at the very extreme of legal thought, and it is not a view whispered between comrades at the Socialist Workers Party meeting at your local university. This is the practice in every other jurisdiction in the United Kingdom. Indeed, Lord Hope, who gave the principal judgment in Cadder, described the Scottish situation as remarkable. Furthermore, having legal advice prior to police interview is the practice in numerous other democratic countries throughout the world. But not, of course, in Turkey.

Anything that presents itself as a speed bump on the road to a swift conviction is disliked by politicians. Predictably therefore, there have been numerous criticisms hurled at the Supreme Court and its decision. It’s said that the legal aid budget would increase by £4,000,000. Interestingly, the Law Society of Scotland has already been told by the Scottish Justice Secretary that any increase in costs will have to be found from elsewhere in the legal aid budget. Even if that were not so, one wonders why Cadder would cause an increase. Many prosecutions are entirely reliant upon a corroborative statement being made by the accused. Without that corroborative statement there would be no prosecution, and without that, no legal aid certificate. So money seems like a weak criticism of the Cadder decision.

Beyond recognition?

The second criticism I have heard comes directly from the Scottish Justice Secretary. According to reports last month, Mr MacAskill said that the Supreme Court had overturned decades of Scottish criminal procedure despite a previously unanimous decision of the Scottish appeal court. I am not sure that amendment of ss 14 and 15 of the Criminal Procedure (Scotland) Act 1995, which have been with us in one form or another since 1980, are acts of legal vandalism. Devolved governments of whatever colour have amended this Act out of all recognition since 1999.

This criticism is particularly without merit when one considers the wholesale sacrifice of centuries of Scots legal tradition on the altar of political popularity, which has been perpetrated by successive devolved administrations. There was no concern shown to Scots jurisprudence when the Scottish Government amended the Criminal Procedure (Scotland) Act 1995 to allow someone to be tried in their absence. A situation inconceivable a century ago, or even 50 years ago. Inconceivable simply because it was entirely contrary to the principles of Scots law.

Furthermore, the Supreme Court is fortunate to have two of the best Scottish judges of the last century in Lord Hope and Lord Rodger. These men could hardly be viewed as maverick lawyers or enemies of Scots law. Notwithstanding the presence of these eminent Scots judges, the Scottish Government seems to imply that this is essentially an English court undermining Scots law. From memory, however, I don’t recall this particular Government accusing the Supreme Court of offending Scots justice when it upheld the Government’s right to increase the sentencing powers in relation to the Road Traffic Act.

Simplified view

If politicians actually told us the real reason they disliked Cadder, they would tell us it was simply because the Crown will now be required to work for a conviction rather than have it handed to them by an ill-thought-out response by an accused person in an extremely vulnerable situation. This in turn means a greater chance of acquittal, which particularly concerns them in the higher profile cases. This, in turn, leads to tabloid criticism, and as we know, there is nothing that will undermine a politician’s popularity more than tabloid criticism. Consequently tabloid criticism is the thing to avoid at all costs.

I too must admit to having some concerns regarding the Supreme Court’s decision. These worries are not predicated on accused persons receiving legal assistance prior to being interviewed by the police, which, as I have said, is commonplace throughout the democratic world. My principal concern is that it will simply be used to undermine the other safeguards inherent within the Scottish criminal justice system. We may witness a cheap tradeoff, with politicians attempting to make conviction easier in some other way. Sadly, this is a path that successive devolved governments have been walking since the advent of devolution, and in all that time, no concern or indulgence was shown to the centuries old principles of Scots jurisprudence.

Already we have Labour’s justice spokesman, Mr Richard Baker, suggesting that the requirement for ‘the corroboration of evidence will need to be examined". Corroboration is in essence the need for two separate sources of evidence to prove a crime. It provides a safeguard against malicious accusation and falsehood. In theory at least, there is no connection between corroboration and obtaining legal advice prior to or during a police interview. However, there is a practical connection in that the Crown and the police have become almost exclusively reliant upon accused persons making what can be construed as corroborative admissions during the course of a police interview. Even the most innocent person is particularly vulnerable in police custody in the absence of legal advice and support.

Politicians create a world where there are only two classes of inhabitant in the criminal justice system – criminals and their victims. It is simply a politically expedient world view. The concept of innocent people being wrongly accused and convicted of crimes is not something that looms large in the world of politics. Nor is it an issue that will be hotly debated during the party conference season. However these people exist and there are many of them. Corroboration and legal advice prior to a police interview offer protection to all of us.

The Cadder decision is not the enemy of justice; it supports justice. Its only crime is that it is politically inconvenient.