The UK Supreme Court has found in Cadder v Her Majesty’s Advocate that the use of material obtained in a police interview in Scotland without legal representation is in breach of Article 6(1) and 6(3)(c) of the ECHR.
Under the Criminal Procedure (Scotland) Act 1995, a police constable may detain a person whom he has reasonable grounds to suspect has committed an imprisonable offence for up to six hours, during which time he may be questioned. Although the detainee is entitled to have a solicitor informed of his detention, he has no right of access to a solicitor. Cadder had been detained and interviewed without a lawyer being present, and he made a number of admissions which were admitted at trial. He was convicted in the sheriff court in Glasgow.
The relevant ECHR case is Salduz v Turkey where the Grand Chamber of the European Court of Human Rights unanimously held that Articles 6(1) and 6(3)(c) of the ECHR were breached by virtue of Salduz not having legal advice when in police custody. Nevertheless, in a subsequent Scottish case, Her Majesty’s Advocate v McLean, the High Court of Justiciary (sitting with a bench of seven judges) held that Articles 6(1) & 6(3)(c) were not violated by the reliance on admissions made by a detainee who did not have access to a solicitor. This was predicated on the view that a fair trial was guaranteed by safeguards in the Scottish criminal process, such as the requirement that all evidence be corroborated and the absence of inference-drawing provisions. Cadder sought to appeal against his conviction, but leave to appeal was refused in Scotland based on McLean.
In Cadder, the Supreme Court allowed leave to appeal and the appeal itself. The Supreme Court noted that while McLean was consistent with Scottish legal authorities, Salduz did not permit the continuation of such jurisprudence which allowed for systematic departure from the now generally accepted principle that a detainee should access to a lawyer from the time of the first interview unless there are compelling reasons, in light of the particular circumstances of the case, to restrict that right. While the Court approved of the Scottish trial safeguards, it noted that the core of Salduz is about self-incrimination, an issue which cannot be resolved by procedural guarantees other than legal advice. The Court stressed there was “not the remotest chance” that evidence obtained in police interviews without legal representation would not be viewed as contrary to the ECHR in Strasbourg.
This decision is of great significance for Scotland whose Government is now faced with the logistical task of implementing a comprehensive system of legal representation. Cases which have been finally determined will not be affected by the judgment, but it will affect cases which have not yet gone to trial, where the trial is still in progress or where an appeal is not yet concluded. The Scottish Government is to introduce emergency legislation which is likely to introduce a right of access to legal advice to suspects held by police before being questioned, extend the period of detention and amend legal aid eligibility rules. However, in fact a ruling against McLean was expected, and contingency plans anticipating this judgment have been developed over the past year by the Scottish Government, Crown Office, Scottish Legal Aid Board, Association of Chief Police Officers in Scotland and the Scottish Court Service.
Further, Salduz and Cadder may provide more impetus for reform of the law in Ireland, where reasonable access to a lawyer when in detention is a constitutional right, rather than a complete or blanket right which pertains throughout detention. This right has been interpreted in a restrictive manner: according to People (DPP) v Buck  2 IR 268 Gardaí are permitted to interrogate the suspect before the solicitor has arrived, provided that they are making bona fide attempts to provide him with a lawyer and they are not obliged to defer a suspect’s arrest until such time as the solicitor is likely to be available. Moreover, denying a solicitor access to the notes of his client’s interrogation does not render detention unlawful (Lavery v Member in Charge, Carrickmacross Garda Station  2 IR 390). However, in O’Brien v DPP  2 IR 206 the individual’s constitutional rights had been breached by the failure to provide him with a solicitor within a reasonable time and detention was deemed to be unlawful by the choice of a solicitor in circumstances where the Gardaí knew or ought to have known that there would be a substantial delay in his arrival. The European Committee for the Prevention of Torture has recommended in its past three reports to Ireland that the right of access to a lawyer should include the right to the presence of a lawyer throughout interrogation. These criticisms are particularly relevant given the lengthy detention periods in the Criminal Justice (Drug Trafficking) Act 1996 and the Criminal Justice Act 2007. Nevertheless, the Irish Government continues to show considerable reticence in amending the law to bring it into line with European jurisprudence.