Peter Cadder Appellant
 UKSC 43
THE SUPREME COURT
Lord Hope, Deputy President
Sir John Dyson, SCJ
Anthony J McGlennan
(Instructed by The Barony Law Practice)
Elish Angiolini QC, the Lord Advocate
W James Wolffe QC
(Instructed by The Crown Agent)
2nd Respondent & Intervener
Alan Summers QC
(Instructed by Office of the Solicitor to the Advocate General for Scotland)
Aidan O'Neill QC
(Instructed by Herbert Smith LLP who were assisted by Taylor & Kelly)
LORD HOPE (with whom Lord Mance agrees)
This is, in effect, an appeal against the decision of the High Court of Justiciary in , , which was heard by a bench of seven judges. The link between that case and the appeal is that the minuter in that case and the appellant, Peter Cadder, in this were both detained under section 14 of the Criminal Procedure (Scotland) Act 1995, as amended ("the 1995 Act"). This has given rise, in both cases, to the question whether the Crown's reliance on admissions made by a detainee during his detention while being interviewed by the police without access to legal advice before the interview begins is incompatible with his right to a fair trial.
The minuter and the appellant were both interviewed by the police while they were being detained under section 14. They made admissions on which, in McLean, the Crown intended to rely at trial and which, in Peter Cadder's case, it did rely in obtaining a conviction. In neither case did they have access to legal advice while they were in detention. Nor was a solicitor present while they were being interviewed. McLean had requested that intimation of the fact and place of his detention should be made to a solicitor. But he was not offered an opportunity to have legal advice before he was interviewed, nor did he request this. Cadder was asked whether he wished a solicitor to be contacted, and he replied that he did not. At no time while he was being questioned did he request access to a solicitor.
In European Convention on Human Rights, in conjunction with article 6(1), because the applicant did not have the benefit of legal assistance while he was in police custody. the Grand Chamber of the European Court of Human Rights held unanimously that there had been a violation of article 6(3)(c) of the In McLean the Appeal Court held, notwithstanding the decision in Salduz, that the fact that legal representation was not available to the minuter did not of itself constitute a violation of articles 6(1) and 6(3)(c) read in conjunction. In its opinion the guarantees otherwise available under the Scottish system were sufficient to avoid the risk of any unfairness. It approved its decisions in and (by a court of five judges) that the Crown's reliance on admissions made by a detainee while being interviewed in the absence of a solicitor was not incompatible with the right to a fair trial. The appellant seeks to challenge the decision in McLean. He submits that the decision in Salduz requires this court to hold that there has been a violation of those articles.
It is remarkable that, until quite recently, nobody thought that there was anything wrong with this procedure. Ever since the statutory power to question a suspect prior to charge was introduced by sections 1 to 3 of the Criminal Justice (Scotland) Act 1980, the system of criminal justice in Scotland has proceeded on the basis that admissions made by a detainee without access to legal advice during his detention are admissible. Countless cases have gone through the courts, and decades have passed, without any challenge having been made to that assumption. Many more are ongoing or awaiting trial - figures were provided to the court which indicate there are about 76,000 such cases - or are being held in the system pending the hearing of an appeal although not all of them may be affected by the decision in this case. There is no doubt that a ruling that the assumption was erroneous will have profound consequences. But there is no room, in the situation which confronts this court, for a decision that favours the status quo simply on grounds of expediency. The issue is one of law, as the court appreciated in McLean. It must be faced up to, whatever the consequences.
The facts of this case
At around 14.30 hours on 13 May 2007 the appellant was detained by the police at his home in Glasgow under section 14(1) of the 1995 Act following an incident in which Liam Tracey and his father John Tracey had been attacked by a group of youths. In accordance with section 14(6) he was informed that he was being detained on suspicion of serious assault, and he was cautioned in accordance with section 14(9). He made no comment, and was conveyed to London Road Police Office. He arrived there at about 14.45 hours. On arrival he was again cautioned in accordance with section 14(9). At about 14.49 he was informed in accordance with section 15 of the 1995 Act that he was entitled to have intimation of his detention sent to a solicitor, but he declined to have a solicitor contacted on his behalf. Thereafter, for a period of approximately 27 minutes commencing at about 15.03 hours, he was interviewed under caution by two police officers. During this interview he made a number of admissions with regard to the offences with which he was later charged. At 15.30 he was informed that he was no longer a detained person under section 14, and he was placed under arrest. At 15.35 hours he was cautioned and charged with various offences in regard to the incident. He made no reply to any of these charges.
On 27 August 2008 an identification parade was held at London Road Police Office. A DVD compilation showing an image of the appellant and images of other individuals was shown to potential witnesses. The complainer Liam Tracey identified the image of the appellant as that of his assailant. The complainer John Tracey failed to identify anyone. On 24 December 2008 an indictment was served on the appellant and two co-accused charging them with assaulting Liam Tracey to his severe injury and permanent disfigurement, assaulting John Tracey to his injury and breach of the peace.
The appellant went to trial in the Sheriff Court at Glasgow on 26 May 2009. On 27 May 2009 the procurator fiscal depute intimated that the Crown did not seek a conviction against the co-accused and the trial proceeded against the appellant alone. During the course of the trial the procurator fiscal depute led evidence from Liam Tracey, who identified the appellant as one of those involved in assaulting both him and his father John Tracey. He also led evidence from John Tracey who identified the appellant in court as one of those involved in the assaults. Evidence was led of the content of the interview of the appellant while he was in detention. An audio tape recording of it was played in full to the jury, and the jury were given copies of the transcript. In his charge to the jury the sheriff made reference both to the contents of the interview and to the dock identification of the appellant by John Tracey. On 29 May 2009 the appellant was convicted on all charges and on 26 June 2009 he was sentenced to 250 hours Community Service. The sheriff also imposed a compensation order for £500.
On 9 July 2009 the appellant lodged intimation of his intention to appeal against his conviction. On 12 October 2009 he lodged a note of appeal in which he sought leave to challenge his conviction on four grounds. Grounds 1 and 2 referred to the reliance by the procurator fiscal depute on the contents of his interview. Ground 3 was concerned with the sheriff's directions in relation to the crime of breach of the peace. Ground 4 was concerned with the reliance by the procurator fiscal depute on dock identification evidence. In relation to grounds 1, 2 and 4 the appellant relied on article 6 of the Convention and section 57(2) of the Scotland Act 1998, and he gave notice that he intended to raise a devolution issue with respect to the issues raised in each of them.
By letter dated 10 November 2009 the Depute Clerk of Justiciary informed the appellant that the judge who was conducting the first sift had considered his application for leave to appeal and that it had been refused. On 19 November 2009 the appellant appealed against this refusal, supported by an opinion provided by his counsel, Mr Shead. By letter dated 27 November 2009 the Depute Clerk of Justiciary informed the appellant that his appeal had been considered by three judges at the second sift stage, and that it also had been refused. The following reasons were given:
"Although we have had regard to counsel's opinion, grounds 1 and 2 are not arguable, standing the 7 judge decision in McLean. As to ground 3 it is not arguable, having regard to the particular circumstances of the alleged offence and the judge's charge as a whole, that his directions were apt to confuse or that any miscarriage of justice could be said to have resulted. As to ground 4, it is not arguable, having regard inter alia to , that it would have been incompatible with the appellant's Article 6 rights for the Crown to seek to rely on dock identification in the circumstances of the case."
On 15 December 2009 the appellant's solicitors wrote to the Depute Clerk of Justiciary asking...
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