‘Substantial and Radical Change’: A New Dawn for Scottish Criminal Procedure?

Date01 September 2012
publishedDate01 September 2012
‘Substantial and Radical Change’:A New Dawn for
Scottish Criminal Procedure?
James Chalmers and Fiona Leverick*
This paper discusses the recommendations of the Carloway Review, which was established to
review law and practice in criminal cases following the introduction in Scotland of a right to legal
assistance during detention. A number of recommendations are made in the Review,including
the introduction of stricter time limits governing the detention of suspects, the removal of the
corroboration requirement, the rejection of adverse inference provisions, and a change in the
manner in which the appeal court deals with cases referred to it by the Scottish Criminal Cases
Review Commission.It is argued that while some of these recommendations are to be applauded,
others are poorly reasoned and some may lead to a dangerous reduction in protection against
wrongful conviction.
In October 2010, the Supreme Court ruled, in Cadder vHM Advocate1(Cadder),
that the use at trial of admissions made by a suspect who had not been offered
legal assistance would be incompatible with Article 6 of the European Conven-
tion of Human Rights. Up until this point,unlike England and Wales2and other
major common law jurisdictions,3Scotland did not recognise a suspect’s right to
legal assistance during detention. Cadder set in motion a chain of events that could
have extraordinarily wide implications for the Scottish criminal justice system.
It resulted in the Scottish Government commissioning a fundamental review of
law and practice (the Carloway Review), which has now reported. This article
discusses its recommendations.
Prior to Cadder, suspects detained for police questioning in Scotland had the
right to have a solicitor informed of their detention,4but no right to legal
assistance prior to or during questioning.5The ECHR compatibility of this
*University of Glasgow.
1 [2010] UKSC 43.
3 In the US, Miranda vArizona 384 US 436 (1966); in Canada,Canadian Char ter of Rights and
Freedoms, s 10.
4 Criminal Procedure (Scotland) Act 1995,s 15(1).
5 For a history of the law, see F. Leverick,‘The Right to Legal Assistance During Detention’(2011)
15 Edin LR 352, 355–357.
© 2012The Authors.The Modern Law Review © 2012 The Modern Law Review Limited. (2012) 75(5) MLR 837–864
Published by BlackwellPublishing, 9600 Garsington Road, Oxford OX42DQ, UK and 350 Main Street, Malden,MA 02148, USA
provision had been challenged unsuccessfully in the Scottish courts.6The
catalyst for change was Salduz vTurkey,7a unanimous decision of the Grand
Chamber of the European Court of Human Rights, where it was held that
Article 6(1) requires that ‘as a rule, access to a lawyer should be provided as
from the first interrogation of a suspect by the police, unless it is demonstrated
in the light of the particular circumstances of the case that there are compelling
reasons to restrict this right’.8
In HM Advocate vMcLean9(McLean), the High Court of Justiciary chose not
to follow Salduz vTurkey, concluding that a trial’s f airness should be deter-
mined in the light of all measures for the accused’s protection and not simply
the availability of legal assistance during detention. In Scotland these included
recording of police interviews; the inadmissibility of statements obtained
through coercion; the corroboration requirement; the fact that adverse infer-
ences cannot be drawn from silence; and the limited duration of detention.10
In Cadder, the Supreme Court disag reed, finding the Scottish system clearly
incompatible with Article 611 and describing the protections listed in McLean as
‘beside the point’.12 The Crown Office and Procurator Fiscal Service13 stated
that it had, as of December 2011, been forced to abandon 1,030 prosecutions
as a direct result of Cadder.14
In response to Cadder, the Scottish Parliament passed the Criminal Proce-
dure (Legal Assistance, Detention and Appeals) (Scotland) Act 201015 (the 2010
Act), giving suspects the right to a private consultation with a solicitor prior to
and during police questioning. It made a number of other significant changes,
including extending the maximum time for which suspects could be detained
and, most controversially, changing the role of the appeal court and the Scottish
Criminal Cases Review Commission. The 2010 Act was passed as an emer-
gency measure and at the same time Lord Carloway was commissioned by the
Scottish government to review ‘the law and practice of questioning suspects in
a criminal investigation in Scotland’16 in the light of Cadder and the ECHR
6Paton vRitchie 2000 JC 271; Dickson vHMAdvocate 2001 JC 203.
7 (2009) 49 EHRR 19.
8ibid at [55].
10 ibid at [27].
11 Cadder at [40] per Lord Hope; [93] per Lord Rodger.
12 ibid at [66] per Lord Rodger. See F. Leverick,‘The Supreme Court Str ikes Back’ (2011) 15 Edin
LR 287. In defence of McLean,see Lord McCluskey,‘Supreme Er ror’ (2011) 15 Edin LR 276;P.
R. Ferguson,‘Repercussions of the Cadder Case: The ECHR’s Fair Trial Provisions and Scottish
Criminal Procedure’ [2011] Crim LR 743.
13 The Scottish prosecution service.
14 ‘MoreThan 1000 Cases Affected by Cadder Ruling’ Scottish Legal News 5 December 2011.Various
questions left open by Cadder have now been ruled on by the Supreme Court, in the co-called
‘Sons of Cadder’ cases. See Ambrose vHarris [2011] UKSC 43; Jude vHMAdvocate [2011] UKSC
55; McGowan vB[2011] UKSC 54. See R.M. White and P.R. Ferguson,‘Sins of the Father? The
“Sons of Cadder”’ [2012] Crim LR 357.
15 For criticism, see F. Stark,‘The Consequences of Cadder’ (2011) 15 Edin LR 293.
16 Carloway Review, Report and Recommendations 17 November 2011(Report) para 1.07.
‘Substantial and Radical Change’
© 2012 TheAuthors. The Modern Law Review © 2012The Modern Law Review Limited.
838 (2012) 75(5) MLR 837–864

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