Off kilter

When the Supreme Court delivered its judgment in Cadder v HM Advocate [2010] UKSC 43, there must have been gasps of astonishment from those south of the border who are not well versed in Scottish criminal procedure. Not because of the court's holding '“ that Scots law, in allowing admissions made during police questioning to be admissible at trial where the suspect has not been offered legal advice, is incompatible with article 6 '“ but because suspects could be questioned without access to legal advice in the first place.

The history of the Scottish provisions is traced in detail in Lord Rodger's speech in Cadder, but essentially they arose from the recommendations of the Thomson Committee in its Second Report on Criminal Procedure in Scotland (1975). The denial of legal advice to suspects was not hitherto part of Scots law '“ it was always available upon arrest '“ but a problem had arisen in that the police had no power to compel a suspect to attend for questioning unless they arrested and charged him. Questioning on suspicion could take place only if the suspect agreed to attend voluntarily.

To address this, the committee recommended the introduction of a new power of detention, whereby a suspect could be held for questioning for up to six hours, at the end of which he must either be arrested and charged or released.

Suspects would have the right to inform a solicitor of their detention, but not to obtain legal advice before or during questioning.

The committee's reasoning for this was: 'The purpose of the interrogation is to obtain from the suspect such information as he may possess regarding the offence, and this purpose might be defeated by the participation of his solicitor.'

Their mindset could not be clearer '“ the police should be permitted to interrogate suspects in isolation, unhampered by legal professionals who might act in the suspect's best interests by, for example, reminding him of his right to remain silent. Ironically, given that the Royal Commission would shortly declare a similar legislative provision in England and Wales to be wholly inadequate, legislation along these lines followed and has remained essentially the same in substance until the present day.

Attempted justification

Few in Scotland would now support the reasoning of the Thomson Committee (although the rhetoric of some Conservative politicians in response to Cadder perhaps comes close). Nonetheless, there have been robust attempts to justify the Scottish position. The most recent came in HM Advocate v McLean [2010] SLT 73, where the High Court of Justiciary unanimously declared Scots law compatible with article 6 on the basis that it contains sufficient guarantees to ensure a fair trial, even in the absence of legal advice during detention.

These include: the recording of interviews; the inadmissibility of statements obtained through coercion; the corroboration requirement, which ensures that conviction cannot be based on a confession alone; the fact that adverse inferences cannot be drawn at trial from silence during police questioning; and the limited duration of detention.

The ban on drawing adverse inferences from silence (and perhaps also the corroboration requirement) might best explain to an English audience why the Scottish provisions went unchallenged for so long. However, as Lord Rodger pointed out in Cadder, the right to silence may be of little practical value if a solicitor is not present to advise on its implications.

Shaky position

Regardless of the merits of the High Court's argument, the Scottish position was untenable in the face of the Grand Chamber of the European Court of Human Rights' decision in Salduz v Turkey [2009] 49 EHRR 19 and Cadder came as no surprise to anyone.

The crown had been preparing for it for several months, issuing interim guidelines to police advising them to offer suspects access to a solicitor before interview. Emergency legislation will most likely be in force by the time this article is published (see the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Bill) introducing the right of access to a lawyer and extending the period for which suspects can be detained to 24 hours.

The fear among Scots lawyers is that some of our other distinctive protections may disappear, such as the right to silence and the corroboration requirement. Given that research in England and Wales has shown that only around half of those questioned by police request legal advice and even less actually receive it, this, to some of us, is a worrying proposition.