Right to Lawyer Pre-Questioning: Admissions by Detained Suspect with Legal Representation are Incompatible with Right to Fair Trial

Cadder v Her Majesty's Advocate (Scotland) [2010] UKSC 43 (26 October 2010)

The United Kingdom Supreme Court has overturned convention and UK precedent by holding that admissions made by a detained suspect prior to charge, without legal representation, are incompatible with the right to a fair trial.  While this decision is contrary to the previous UK position, it is consistent with the European Court of Human Rights decision in Salduz v Turkey (2009) 49 EHRR 19.

Facts

At around 2.30 pm on 13 May 2007, Mr Cadder was detained by the police at his home in Glasgow under s 14 of the Criminal Procedure (Scotland) Act 1995 after two individuals were attacked by a group of youths.  Mr Cadder was detained on suspicion of serious assault and cautioned as to his rights.  At about 2.45 pm, Mr Cadder was conveyed to a local police station, and again cautioned as to his rights, including the right to a solicitor, which he declined.  Police interviewed Mr Cadder for about 30 minutes, during which he made a number of admissions regarding the offences with which he was later charged.  Following trial, Mr Cadder was convicted on all charges, and sentenced to 250 hours community service.  Mr Cadder appealed against his conviction, on the basis that the Crown’s use of his admissions were a breach of the right to a fair trial.

Decision

In a previous decision by the Grand Chamber of the European Court in Salduz, the Grand Chamber unanimously found that the failure to provide Salduz with access to a lawyer during pre-trial investigation was in breach of art 6 of the European Convention on Human Rights.

Salduz had been recently cited in a Scottish case with similar facts, HM Advocate v McLean.  In that case, the Scottish High Court of Judiciary held that Salduz did not apply because the ‘guarantees otherwise available under the Scottish system were sufficient to avoid the risk of any unfairness’.  The result of that finding was that McLean’s admissions whilst in detention and made in the absence of a solicitor were not incompatible with the right to a fair trial and were able to be relied upon by the Crown.

In the present case, however, Mr Cadder submitted that the UK Supreme Court should overturn the decision in McLean and affirm the decision in Salduz.

The UK Supreme Court made the observation that ‘[i]t is remarkable that, until quite recently, nobody thought that there was anything wrong with [the] procedure’ of allowing reliance on admissions made by a suspect prior to charge in the absence of legal advice.  Furthermore, ‘countless cases have gone through the courts, and decades have passed without any challenge having been made to that assumption’.  Whilst the Court acknowledged the large scale implications of finding such an assumption erroneous, the Court said that ‘there is no room … for a decision that favours the status quo simply on the grounds of expediency’.

The UK Supreme Court arrived at its decision by examining the relevant articles in the European Convention discussed in Salduz, which had parallels to the relevant sections of both the UK Human Rights Act 1998 and the Scottish legislation under which Mr Cadder had been detained.  Whilst the Court acknowledged that the European Court was not a binding authority on the UK Supreme Court, the fact that Salduz was a unanimous decision, with later consistent jurisprudence, was relevant.  This consistent application of Salduz in the European Court demonstrated a firmly established jurisprudence which would require states to organise their judicial systems in a manner to ensure that where a person is detained, they must have access to a lawyer before being subjected to police questioning.

The UK Supreme Court held that the decisions in McLean and previous cases are no longer good law in light of the European Court’s Grand Chamber ruling in Salduz and remitted the decision to the Scottish High Court of Justiciary for a de novo hearing in the absence of the inappropriately obtained admissions.

Relevance to the Victorian Charter

The right to a fair hearing is contained in s 24 of the Victorian Charter.  However, the rights discussed in Salduz extend to s 25(b) of the Charter, which provides that a person charged with a criminal offence is entitled to ‘have adequate time and facilities to prepare his or her defence and to communicate with a lawyer or advisor chosen by him or her’.  The Charter in s 25(e) also provides that if an individual does not have legal assistance, he or she is entitled to be told about the right, if eligible, to legal aid.

With both Salduz and now Cadder establishing that a right to a fair trail encapsulates the period from the point of being detained, these decisions are highly relevant to ss 24 and 25 of the Charter.  In the context of the right to a fair hearing, the decisions may also be relevant to the exercise of a Victorian judge’s discretion to exclude evidence under s 138 of the Evidence Act 2008 (Vic) (ie consideration of whether evidence obtained improperly or in contravention of Australian law was contrary to, or inconsistent with, the right of a person recognised by the ICCPR).

The decision is at www.bailii.org/uk/cases/UKSC/2010/43.html.

Alexandra Phelan, Solicitor, Mallesons Stephen Jaques Human Rights Law Group