Case Commentaries
| Author | Rosemary Pattenden |
| DOI | 10.1350/ijep.2011.15.1.369 |
| Published date | 01 January 2011 |
| Date | 01 January 2011 |
| Subject Matter | Article |
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Right to counsel at the police station—United Kingdom and Canada
In October the Supreme Court of Canada and the Supreme Court of the United
Kingdom both delivered judgments concerning the detained suspect’s right to
obtain legal advice before being interviewed by the police, a right which both
courts recognise. The approach of the United Kingdom court, however, was rather
different from that of its Canadian counterpart. Both courts saw the right of access
to legal advice as bound up with the right to silence, but the United Kingdom
court, following Strasbourg case law, treated the right of access to legal advice as a
means of supporting the suspect’s right to choose freely whether to speak to the
police or remain silent, whereas the Canadian court (or at least a majority of its
members) treated the right of access to legal advice simply as a device to ensure
that a suspect’s decision to speak to the police is an informed one. There is a subtle
difference. Under the Canadian approach, it is not part of the purpose of the right
to consult a lawyer to protect a suspect from pressure to speak against his will.
This role falls to the confession rule which requires the exclusion of an invol-
untary confession.
The United Kingdom case, Cadder vHM Advocate [2010] UKSC 43, was a devolution
appeal from Scotland. Under the terms of the Criminal Procedure (Scotland) Act
1995, the police may detain a suspect for up to six hours for questioning. During
this period of detention, the suspect has a right of silence (of which the suspect
must be made aware) and a right to have a lawyer informed of the detention, but
not a right of access to a lawyer, although, as a matter of discretion, the police
may, and often do, allow such access. The lack of such a right is no oversight: it was
recommended by the Thomson Committee (Criminal Procedure in Scotland (Second
Report) Cmnd 6218 (1975) para. 7.16) which feared that allowing suspects to
consult a lawyer before being questioned would hamper criminal investigations.
Cadder, the appellant, was detained by the police after a serious assault. He was
cautioned and told that he was entitled to have a solicitor informed of his
detention, but did not exercise this right. At no time during his interview did he
ask to consult with a solicitor. During the interview he made admissions which
doi:10.1350/ijep.2011.15.1.369
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were relied on at his trial. After his conviction he brought an appeal alleging
violation of Articles 6(1) and 6(3)(c) of the European Convention on Human Rights
on the grounds that he had not been given the opportunity to obtain legal assis-
tance before being interviewed. Cadder’s appeal was, in effect, an appeal against
the decision of the High Court of Justiciary (sitting with seven judges) in HM
Advocate vMcLean 2010 SLT 873. Notwithstanding the unanimous decision of the
Grand Chamber of the European Court of Human Rights (ECtHR) in Salduz vTurkey
(2008) 49 EHRR 421, in McLean, the appeal court had held that the fact that a
suspect in police detention in Scotland has no right of access to legal advice before
questioning does not, of itself, make a subsequent trial unfair because of the
numerous safeguards built into the Scottish legal system to prevent miscarriages
of justice, including, in particular, the requirement that a confession be corrobo-
rated by independent evidence.
The Supreme Court unanimously allowed the appeal. By implication, Article 6
guarantees the suspect’s right against self-incrimination. A primary purpose of
access to legal advice is to make this right effective. In Salduz the ECtHR deter-
mined to make sure of this. This decision established common principles for
all Member States. As a rule, legal advice must be provided before the first
police interview. If it is not, and the suspect makes admissions, the defence is
irretrievably prejudiced. Access to legal advice can sometimes be delayed, but
there must be compelling reasons which make the presence of a lawyer impracti-
cable in the circumstances of the particular case. In Cadder’s case there were no
compelling reasons. Systematic denial of access to a lawyer before the first
interview—the legal position in Scotland—violates Article 6. A suspect can waive
the right to consult a solicitor, but there was no finding in Cadder’s case that he
had done so. The Supreme Court read down s. 14(7) of the Criminal Procedure
(Scotland) Act 1995 to make an admission obtained by questioning a suspect who
was denied access to legal advice inadmissible as evidence at his trial. It followed
that in Cadder’s case, the prosecution had no power to lead and rely on the admis-
sions.
The Supreme Court pointed out at some length that Salduz has been repeatedly
followed by the ECtHR and that other countries that prior to Salduz did not afford a
right to legal representation at interview (namely, Belgium, France, the Nether-
lands and Ireland) have recognised that their legal systems are deficient and
require reform. England has long recognised that a person arrested and held in
custody in a police station is entitled, if he or she so wishes, to consult a solicitor
privately at any time, and must be informed of that right on arrival at the police
station (Police and Criminal Evidence Act 1984, s. 58). To some degree, Lord Rodger
admitted, this right tilts the balance against the police and the prosecution and
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