Cadder v Her Majesty’s Advocate (Scotland) [2010] UKSC 43

This was a devolution appeal, the outcome of which required the Scottish authorities to consider speedy reform. It concerned the longstanding practice in Scotland that a person who was detained by police on suspicion of having committed an offence was not entitled to have access to a solicitor prior to being interviewed. The appellant in this case was convicted after the prosecution relied on admissions he had made to the police in his interview. He argued that his rights to a fair trial protected by Article 6 of the European Convention on Human Rights had been violated by the absence of a statutory right to legal advice when in police custody. The Scottish authorities contended that other guarantees in the Scottish legal system – such as the need for corroborated evidence – were
sufficient to ensure a fair trial. The Supreme Court found that decisions of the European Court of Human Rights made it clear that a detainee had to have rights of access to a lawyer from the first interview unless there were compelling reasons in the individual case to restrict that right. The Scottish system was expressly designed in the hope that an individual would incriminate himself during questioning. This view of where the balance was to be struck between the public interest and the rights of the accused was irreconcilable with Article 6. This decision did not affect completed criminal cases but did apply to relevant cases still in progress. Immediately following the hearing, the Lord Advocate issued updated guidance to police forces which ensured suspects were offered access to legal advice before and during questioning in detention, and emergency legislation has now been passed to implement the decision, in The Criminal Procedure (Legal Assistance, Detention and Appeals) Act 2010.