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‘It is remarkable that, until quite recently, nobody thought that there was anything wrong with this procedure’. This was a statement given by Lord Hope in regards to Scottish criminal procedures.
Article 6 of the ECHR (European Convention on Human Rights) is something that has shone light on a law which nobody had previously thought to be wrong. This Article protects our right to a fair trial which incorporates the right to have a solicitor present. In Scots Law, a defendant could be detained and interviewed without legal advice, until a ruling in the ECtHR (European Court of Human Rights) which lead to an interesting outcome in the case of Cadder.
Facts
In the Scottish Case of Cadder v HM Advocate, Peter Cadder was detained in his home following an attack on two victims. He was later taken to the police station where he was interviewed without a solicitor present - as he had declined one - and made a number of admissions about the case. One of the victims was able to identify him in court, but one was not. The public prosecutor produced an array of evidence including a tape with the contents of his interview with the police, and he was convicted of assault and breach of peace. He appealed his decision on 4 grounds;
Grounds 1 & 2 – the prosecutor had relied on the contents of his interview (that was conducted without a solicitor present) in order to obtain a conviction.
Ground 3 - the breach of peace conviction.
Ground 4 - the use of dock identification evidence (the victims identifying him in court).
Ground 1, 2, and 4 were appealed under article 6 of the ECHR and section 57(2) of the Scotland Act which states that, “member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with EU law.”
Based on previous Scottish case law, such as Paton v Richie or Mclean, it could be argued that there was no breach as it was stated that relying on evidence obtained without a solicitor present was compliant with the convention. Also under sections 14 and 15 of the Criminal Procedure Scotland Act 1995, a person may be detained as quickly as possible and without legal advice.
Judgement
The leading judgement was given by Lord Hope and was unanimously agreed upon by the other judges. They allowed the appeal based on a number of reasons. The decision was primarily based on the judgement in Salduz v Turkey in the ECtHR.
Lord Hope noted:
The judges in Paton or Mclean had not acted erroneously, as they were just following the law as it was at the time. However, the judgement in Salduz overruled this law, stating that if a person is being interviewed without a solicitor present then it will be a breach unless there are compelling circumstances, which must be exceptional.
This statute was no longer compatible with the ECHR so was no longer ‘good law’.
Salduz relied on articles 6(1) and 6(3) in order to establish the breach and therefore Cadder should be able to rely upon this to render Scots Law compatible with the convention following section 57(2) of the Scotland Act.
Although this is Scots Law, and therefore has no explicit authority, it is still a highly influential case. Although Peter Cadder had committed a criminal offence, it did not mean that he should not be treated fairly in the eyes of the law. This judgement allows people not to self-incriminate, and say things that could be used against them in court. This is a perfect example of how human rights law within the ECHR can have major legal changes and have a positive impact on domestic legislation.