Cadder v HMA
CROWN OFFICE
26 October 2010
CADDER v HMA
The Supreme Court today announced its decision in the case of Peter Cadder v Her Majesty's Advocate.
After the judgment, the Lord Advocate, the Right Honourable Elish Angiolini QC, said:
"The Supreme Court's judgment in Cadder v HMA is a significant ruling for Scots law.
"Until today, the Scottish legislation regarding access to a solicitor prior to and during police detention was held to be compliant with the European Convention on Human Rights. Indeed Scotland's highest criminal Court of Appeal looked at this very issue in the case of McLean less than a year ago. In that case seven judges held unanimously at that time that Scots law and practice was compatible with the Convention requirements.
"Prosecutors work within the law made by Parliament and as interpreted and stated by the courts. Today's ruling in Cadder changes understanding of the law as set out in McLean, and so we will immediately adapt our working practices to this new legal landscape.
"I note that the Court has stated that its decision does not apply to cases that have been finally determined. This very significantly limits the number of cases potentially affected by this judgment.
"In preparation for the possibility of this change, we have been working with the police and the Scottish Government to minimise the risk to live cases. We have of course taken precautionary measures: in early 2009 I issued guidance to prosecutors, instructing them only to use admissions made by suspects who had not had legal advice before interview in a police station where this was considered essential for the Crown case. Earlier this year, following the hearing before the Supreme Court, I issued Guidelines to the police requiring them to provide access to a solicitor prior to and during interview.
"Unlike any other jurisdiction in Europe, Scots law requires two sources of evidence to support each essential fact in a prosecution. This rule of 'corroboration' presents a further challenge to prosecution in Scotland, which does not apply in this wholesale manner in other jurisdictions.
"The balance of rights for accused in Scotland will now need to be carefully considered. It must be ensured that the Convention rights of victims to have 'effective criminal sanctions in place' are maintained where their human rights are flouted by the criminal actions of another.
"In light of this, I welcome the announcement by the Cabinet Secretary for Justice of Lord Carloway's review of the laws of criminal procedure and evidence in Scotland following the Supreme Court's decision. I consider such a review important to ensure, as the Supreme Court itself recognises at paragraph 97 of its opinion 'that any revised scheme is properly balanced and makes for a workable criminal justice system'.
"The Crown Office and Procurator Fiscal Service will continue to work with the police and with the Scottish Government to protect the integrity of pending prosecutions."
Ends
Notes to editors:
1. The issue of ECHR compliance of Section 14 interviews was previously considered by the Appeal Court in Paton v. Ritchie 2000 SCCR 151 and and Dickson v HMA 2001 SCCR 397. In that case the court rejected the appellant's challenge to the admissibility of the statement during police interview and outwith the presence of a solicitor. These cases were upheld unanimously by a 7 judge decision of the Appeal Court in the recent case of HMA v McLean 2010 SLT 73 which was argued before the Court in October 2009. The Court held that there were residual safeguards available in the Scottish system and therefore it cannot be said that, as a rule, to rely on the admissions made without prior access to a solicitor will render a trial unfair.
2. The case against Peter Cadder has been referred by the Supreme Court to the Appeal Court in Scotland and proceedings therefore remain active for the purposes of the Contempt of Court Act 1981. There is the possibility of a retrial in this case. As identification is an issue, editors are asked to refrain from publishing material, including photographs of Mr Cadder, which may create a substantial risk of serious prejudice.
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