| Cadder v HM Advocate | |
|---|---|
| Court | Supreme Court of the United Kingdom |
| Full case name | Cadder v Her Majesty's Advocate |
| Date decided | 26 OCtober 2010 |
| Citation(s) | [2010] UKSC 43, 2011 S.C. (U.K.S.C.) 13 |
| Judge(s) sitting | Lord Hope (Deputy President), Lords Rodger, Walker, Brown, Mance, Kerr and Dyson |
| Case history | |
| Related action(s) | McLean v HM Advocate 2010 SLT 73 |
| Case opinions | |
| By not being able to have access to a solicitor prior to being interviewed by the police, Cadder's rights under Article 6(1) ECHR had been breached. | |
Cadder v HM Advocate [2010] UKSC 43 (26 October 2010) was a decision of the Supreme Court of the United Kingdom which held that the way in which police in Scotland detained suspects was not compatible with the European Convention on Human Rights and was therefore unlawful in terms of the Scotland Act 1998.
Contents |
Peter Cadder was convicted at Glasgow Sheriff Court of assault and breach of the peace on 29 May 2009,[1] following an incident in May 2007.[2]
Cadder had been detained under section 14(1) of the Criminal Procedure (Scotland) Act 1995. Cadder was interviewed by two police officers Strathclyde Police at London Road Police Office in Glasgow. In August 2008 an identity parade was held in which the complainer, John Tacey, was unable to identify anyone.[3] In the subsequent court case, the Crown relied upon evidence obtained within his police interview to help prove their case.
Cadder attempted to lodge an appeal in the Court of Criminal Appeal in Edinburgh on the grounds that it was a breach of Article 6(1) (Right to a Fair Trial]) of the European Convention on Human Rights (ECHR) that he was unable to have a solicitor present during his 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 ([2010] SLT 73), which had concluded that there were sufficient safeguards within Scots Law to ensure that there was no breach of Article 6(1) by having no solicitor present. Cadder appealed against the refusal and three judges refused it again in November 2009 at the second sift stage. Another case referred to was Salduz v Turkey, a comprised to similar facts of Cadder however Salduz challenged on grounds of duress. Here it was held that Salduz self incriminatinbg statements whilst detained were not admissible. Differences are evident though as in countries like Turkey physical duress is more likely to occur than in the UK.
Cadder then sought leave to appeal to the Supreme Court of the United Kingdom. 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 from the Supreme Court. They were 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 prior to being interviewed by the police.
In the case, the Court held that by not being able to have access to a solicitor prior to being interviewed by the police, Cadder's rights under Article 6(1) of the ECHR had been breached. Therefore Scottish Police can no longer question suspects without a lawyer.
The period of detention without charge will be raised from six hours to twelve hours - with the potential to increase that to twenty-four hours on "cause shown" by a senior officer. The above change in law is more rigid than the access to the lawyer in police station during interview.
Many cases in the process of prosecution which relied upon section 14 admissions to satisfy the requirements of corroboration have fallen or have been successfully appealed as a result of the Cadder decision.
As a result of the case Cadder v HM Advocate the scottish government passed emergencey legislation the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 which changed the law regarding rights to a solicitor and increased the time which someone can be detained for.