Chalmers to Cadder: Full Circle on Police Interrogation?

Document Cited authorities (27) Cited in Related
Date01 May 2015
DOI10.3366/elr.2015.0271
Published date01 May 2015
Pages186-209
AuthorPeter Duff
INTRODUCTION

The purpose of this article is to analyse changes to the Scots law governing the police questioning of suspects from the time of Chalmers1

Chalmers v HMA 1954 JC 66.

in the middle of the twentieth century up until the aftermath of the recent and controversial Supreme Court decision in Cadder.2

Cadder v HMA [2010] UKSC 43, 2010 SLT 1125.

 In particular, I wish to focus on the often cited Scots law rule that, after charge, any answers given by a suspect in response to police questioning are inadmissible, a rule which will shortly be abolished by the Criminal Justice (Scotland) Bill 2013, clauses 27–29.3

Criminal Justice (Scotland) Bill, SP Bill 35, Session 4 (2013). On 23 April 2014, the Cabinet Secretary for Justice announced that Stage 2 of the Bill was to be postponed until the Spring of 2015 (http://news.scotland.gov.uk/News/Criminal-Justice-Bill-bba.aspx).

 In an earlier article,4

See P Duff, “Adversarial ideology and police questioning after charge” 2013 JR 1.

 I demonstrated that, since the advent of professional police forces in the middle of the nineteenth century, the Scottish judiciary discouraged the police from questioning suspects after arrest and charge, and how this practice finally crystallised into an absolute rule in Wade v Robertson in 1948.5

As shown in Duff (n 4) 20–21, most judges and writers cite the earlier case of Stark v HMA 1938 JC 170 as authority for this rule, but this view is almost certainly mistaken.

 Additionally, I argued that the primary rationale underlying this approach was the judicial view that, in an adversarial criminal justice system, once a suspect has been identified, questioning by the police should stop as a result of the application of fundamental liberal principles, primarily the privilege against self-incrimination and the equality of arms. At this stage, I should make it clear that Scots law has always deemed admissions by an accused which were solicited by unfair means, e.g. trickery or bullying by the police, as inadmissible. Conversely, entirely voluntary confessions by an accused, either before or after arrest and charge, have always been admissible in Scotland. There is copious discussion of these topics in the Scottish case law and legal literature and I do not intend to rehearse that discourse here.6

See D Griffiths, Confessions (1994); M Ross and J Chalmers, Walker and Walker: The Law of Evidence in Scotland, 3rd edn (2009) ch 9; and F Davidson, Evidence (2007) 9.34–72. There are many appeal court decisions on the admissibility of confessions, a few of which will be discussed below, and much academic commentary on these.

Instead, I wish to focus primarily on the question of the stage at which further questioning by the police of a witness who is undergoing the ill-defined transition into a suspect must cease. This exercise will serve two related purposes. First, the aim is simply to continue my historical analysis of the rule against post-charge questioning, which entails picking up the story with Chalmers in which the protection for suspects is generally regarded as reaching its highpoint. Thereafter, as we shall see, the protection for suspects was increasingly weakened both by judicial decision making and the implementation of the Thomson Committee's recommendations until this trend was definitively reversed by Cadder. That decision dictated that all suspects must now be given the opportunity to receive legal advice on arrival at the police station and before any questioning begins. In the light of this new safeguard for suspects, the Carloway Review recommended abolition of the absolute rule against post-charge questioning as no longer necessary nor desirable.7

Scottish Government, The Carloway Review: Report and Recommendations (2011) 6.2.44–56 (accessible at http://www.scotland.gov.uk/About/CarlowayReview).

Thus, it is timely to conclude my analysis of this rule and the more general issue as to whether the police should stop questioning a suspect beyond a certain stage in the investigative process

The second purpose of the article is to analyse the reasons for the gradual decline, since Chalmers, of the protection of suspects from police questioning. In my view, this change of approach is, broadly speaking, a result of conflicting values in the criminal justice process, embodied by Packer's classic dichotomous models of “Due Process” and “Crime Control”.8

H Packer, The Limits of the Criminal Sanction (1969) ch 8.

While Packer's models have come in for some critical comment,9

See D McBarnet, “False dichotomies in criminal justice research”, in J Baldwin and A K Bottomley (eds), Criminal Justice (1978) 23; D Smith, “Case construction and the goals of criminal process” (1997) 37 Brit J of Criminology 319; D Smith, “Reform or moral outrage: the choice is yours” (1998) 38 Brit J of Criminology 616.

 I think that they still provide a useful prism for critical analysis of developments in the criminal justice process.10

See P Duff, “Crime control, due process and ‘The Case for the Prosecution’” (1998) 38 Brit J of Criminology 611; M McConville, A Sanders and R Leng, “Descriptive or critical criminology: the choice is yours” (1997) 37 Brit J of Criminology 347.

 In brief, Due Process values place great emphasis on the civil liberties of citizens and hence suspects, on controlling the power of the state and on the prevention of errors through “formal, adjudicative, fact finding that stresses the possibility of error”.11

Packer (n 8) 163.

 In contrast, Crime Control values emphasise the repression of criminal conduct and the “efficient” apprehension, trial and conviction of criminals in a system where resources are scarce and state agencies have considerable expertise.12

Packer (n 8) 158.

 As Packer himself succinctly states: “If the Crime Control Model resembles an assembly line, the Due Process Model looks very much like an obstacle course”.13

Packer (n 8) 163.

 My argument will be that Scottish legal rhetoric, and to an extent practice, up until the middle of the twentieth century tended to celebrate controls on the interrogation of suspects, as exemplified by the rule against post-charge questioning, as an example of the Due Process values which are understood to underpin adversarial Scottish criminal procedure. At the same time, however, the judiciary and policy makers often adopted more pragmatic Crime Control values in finding ways to admit suspects’ responses to police questioning, in order to ensure that those accused who were clearly guilty did not escape justice

This ambivalence is not surprising because, as Packer and many subsequent commentators have argued, the tension between Due Process and Crime Control is constantly played out in the evolution of criminal procedure. As we shall see, in the wake of Chalmers the judiciary began to emphasise more strongly the need not to hamper the police unduly in their crime-fighting efforts. The Thomson Committee essentially ratified this Crime Control approach by enabling the point of charge to be delayed, thus allowing the police to question “detainees”14

The police were given the power of “detention” by ss 1 and 2 of the Criminal Justice (Scotland) Act 1980, which became ss 13 and 14 of the Criminal Procedure (Scotland) Act 1995.

without legal representation, which led to it being implicitly criticised some forty years later by Lord Hope in Cadder. The latter decision, which resulted from the increasing influence of European human rights jurisprudence, and a resultant focus on the liberal principles of equality of arms and the right to silence, entitled a suspect to legal advice at the point of detention. This has to some extent returned Scots law to the principles embodied in Chalmers, reflecting more emphasis on Due Process values. Therefore, I shall argue that one effect of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010, which created a new regime governing the police interrogation of suspects, was to move Scottish criminal procedure some way back towards the rhetorical claims of Due Process. However, the Criminal Justice (Scotland) Bill 2013, which will replace that emergency legislation, contains various other measures, primarily based on Crime Control values, designed to counteract that shift. The most obvious example, of course, is the proposed abolition of corroboration which is designed to make it easier to prosecute suspects and secure convictions of the factually “guilty”.15

Opponents of the abolition of corroboration of course argue, in Due Process terms, that it will make conviction of the innocent more likely.

 Similarly, although not to the same extent, the removal of the ban on the police questioning of suspects after charge is intended to increase the efficiency of the criminal justice process by removing an obstacle standing in the way of the attempt by the police to discover the truth.16

Additionally, it is already clear that the move towards Due Process is being further diluted in practice by the large proportion of suspects who waive their right to legal advice upon arrival at the police station. For some recent figures on this, see n 145 below. I shall return briefly to this issue in the conclusion.

 FROM <italic>CHALMERS</italic> TO THOMSON <italic>Chalmers</italic>

Gordon, in a thorough analysis of the admissibility of answers to police questioning in Scotland, observed that in terms of being “well-defined and favourable to the accused” the law in this area “reached a peak” with Chalmers.17

G Gordon, “The admissibility of answers to police questioning in Scotland”, in P Glazebrook (ed), Reshaping the Criminal Law: Essays in Honour of Glanville Williams (1978) 317 at 317. D Griffiths, Confessions (1994) at 1.08.

Following that judgement, up until the mid-1970s (when the article was written), Gordon observed that “the trend has been towards admitting rather than excluding statements made to the police”. Another commentator observed that the well-known...

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