''Cadder v HM Advocate''

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UKSC 43 (26 October 2010) is a decision in which the

Supreme Court of the United Kingdom The Supreme Court of the United Kingdom (initialism: UKSC or the acronym: SCOTUK) is the final court of appeal in the United Kingdom for all civil cases, and for criminal cases originating in England, Wales and Northern Ireland. As the United ...

held that the way in which

police The police are a constituted body of persons empowered by a state, with the aim to enforce the law, to ensure the safety, health and possessions of citizens, and to prevent crime and civil disorder. Their lawful powers include arrest a ...

Scotland Scotland (, ) is a country that is part of the United Kingdom. Covering the northern third of the island of Great Britain, mainland Scotland has a border with England to the southeast and is otherwise surrounded by the Atlantic Ocean to th ...

detained suspects was not compatible with the

European Convention on Human Rights The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by t ...

and was therefore unlawful in terms of the

Scotland Act 1998 The Scotland Act 1998 (c. 46) is an Act of the Parliament of the United Kingdom which legislated for the establishment of the devolved Scottish Parliament with tax varying powers and the Scottish Government (then Scottish Executive). It was o ...

Background

Peter Cadder was convicted at Glasgow Sheriff Court of

assault An assault is the act of committing physical harm or unwanted physical contact upon a person or, in some specific legal definitions, a threat or attempt to commit such an action. It is both a crime and a tort and, therefore, may result in cri ...

and

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on 29 May 2009, following an incident in May 2007, at which time he was a minor. Cadder had been detained under section 14(1) of the Criminal Procedure (Scotland) Act 1995 and interviewed by two officers from

Strathclyde Police Strathclyde Police was the territorial police force responsible for the Scotland, Scottish subdivisions of Scotland, council areas of Argyll and Bute, City of Glasgow, East Ayrshire, East Dunbartonshire, East Renfrewshire, Inverclyde, North Ayrsh ...

at London Road Police Office in Glasgow. In August 2008 an identity parade was held at which the complainer, John Tacey, was unable to identify anyone. In the subsequent court case

the Crown The Crown is the state in all its aspects within the jurisprudence of the Commonwealth realms and their subdivisions (such as the Crown Dependencies, overseas territories, provinces, or states). Legally ill-defined, the term has differen ...

relied upon evidence obtained within Cadder's police interview to help to prove their case.

Judgment

Court of Appeal

Cadder attempted to lodge an appeal in the Court of Criminal Appeal in

Edinburgh Edinburgh ( ; gd, Dùn Èideann ) is the capital city of Scotland and one of its 32 Council areas of Scotland, council areas. Historically part of the county of Midlothian (interchangeably Edinburghshire before 1921), it is located in Lothian ...

on the grounds that it was a breach of Article 6(1) (Right to a Fair Trial]) of the

(ECHR) that he was unable to have a solicitor present during his police interview. At the first sift stage a High Court judge refused his appeal on the basis of the full-bench decision in ''

McLean v HM Advocate MacLean, also spelt Maclean and McLean, is a Gaelic surname Mac Gille Eathain, or, Mac Giolla Eóin in Irish Gaelic), Eóin being a Gaelic form of Johannes (John). The clan surname is an Anglicisation of the Scottish Gaelic "Mac Gille Eathain" ...

'' (

SLT 73), which had concluded that there were sufficient safeguards within

Scots Law Scots law () is the legal system of Scotland. It is a hybrid or mixed legal system containing civil law and common law elements, that traces its roots to a number of different historical sources. Together with English law and Northern Ireland ...

to ensure that there was no breach of Article 6(1) in having no solicitor present. Cadder appealed against the refusal and three judges refused it again in November 2009 at the second sift stage. Cadder then sought leave to appeal to the

. This was refused as the Criminal Appeals Administration Judge was of the view that the refusal of the earlier attempts to appeal did not amount to a determination of a devolution minute. Cadder then sought special leave to appeal directly to the Supreme Court. It was asked to consider whether Cadder was able to obtain special leave to appeal; matters surrounding his identification; and also matters relating to there being no right to have a consultation with a solicitor before an interview by the police. The leading authority in this area of law i
''Salduz v Turkey'' 36391/02 [2008
/nowiki> ECHR 1542">008">''Salduz v Turkey'' 36391/02 [2008
/nowiki> ECHR 1542a judgment of the European Court of Human Rights sitting as
Grand Chamber
The basic facts of the case are similar to ''Cadder'', but Salduz had challenged on the ground that his "confession" (later retracted) had been given under duress, due to maltreatment during interrogation. It was held that Salduz's self-incriminating statements, made while detained, which formed a part of the evidence used to convict him, were not admissible because of the absence of a lawyer. The Grand Chamber in ''Salduz v Turkey'' held (para 55) that in order for the right to a fair trial to remain "practical and effective" Art 6 § 1 of th
European Convention on Human Rights
requires that, as a rule, access to a lawyer should be provided from the first interrogation, unless compelling reasons exist otherwise. Even so, such restrictions must not unduly prejudice the rights of the accused under Article 6. There will be ''irretrievable prejudice'' when incriminating statements made during interrogation without a lawyer present are used for a conviction 'Salduz'': Para 55 The appellants in both ''Cadder'' and ''Salduz'' were minors, to whom procedural protections generally apply across many jurisdictions (see e.g
s 14(1) Criminal Procedure (Scotland) Act 1995
– under which Cadder was held.)

Supreme Court

The Supreme Court held that Cadder's rights under Article 6(1) of the ECHR had been breached because he had been denied access to a solicitor before he was interviewed by the police.

Significance

Scottish police can no longer question suspects without offering the suspect a private consultation with a lawyer, not only before an interview but also at any time during the interview at the suspect's request. The period of detention without charge was raised from six hours to twelve hours, but it will be possible to increase the period to twenty-four hours on "cause shown" by a senior officer. Many cases being prosecuted that relied upon section 14 admissions to satisfy the requirements of

corroboration Corroborating evidence, also referred to as corroboration, is a type of evidence in law. Types and uses Corroborating evidence tends to support a proposition that is already supported by some initial evidence, therefore confirming the propositio ...

have fallen or have been successfully appealed as a result of the ''Cadder'' decision.

Notes