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The Right to Legal Assistance During Detention

Document Cited authorities 36 Cited in Related
Vincent
Pages352-380
Published date01 September 2011
Date01 September 2011
DOI10.3366/elr.2011.0057
INTRODUCTION

The right to legal assistance during police detention (subsequently the RLA) has been described as “one of the most important and fundamental rights of a citizen”1

R v Samuel [1988] QB 615 at 630.

and has existed in common law jurisdictions such as the US,2

See the US Supreme Court's decision in Miranda v Arizona 384 US 436 (1966).

 Canada3

Canadian Charter of Rights and Freedoms (1982) s 10.

 and England and Wales4

Police and Criminal Evidence Act 1984 s 58(1).

 for some time. It may, therefore, have come as a surprise to those outside Scotland that it was not recognised here until very recently, in the now notorious case of Cadder v HM Advocate.5

[2010] UKSC 43, 2010 SLT 1125.

 In Cadder, the Supreme Court over-turned the ruling of the High Court of Justiciary in HM Advocate v McLean6

[2009] HCJAC 97, 2010 SLT 73.

 and held that it would breach Article 6 to admit in evidence admissions made during detention where a suspect had not been offered legal assistance. The Supreme Court concluded that UK courts were required to follow the unanimous decision to that effect of the Grand Chamber of the European Court of Human Rights in Salduz v Turkey.7

(2009) 49 EHRR 19.

 The Crown stated that, as a direct result of Cadder, it had been forced to abandon 867 prosecutions.8

Crown Office and Procurator Fiscal Service, “Crown review of cases after Cadder v HMA” (news release), 9 Feb 2011, available at www.copfs.gov.uk/News/Releases/2011/02/Crown-review-cases-after-Cadder-V-HMA.

In response to Cadder, the Scottish Government passed emergency legislation, the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010, in which detained suspects were given the right to a private consultation with a solicitor before and at any time during questioning.9

Criminal Procedure (Scotland) Act 1995 s 15A(3), as inserted by the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010.

The legislation has been criticised, as much for its rushed emergence as for the substantive content10

See e.g. F Stark, “The consequences of Cadder” (2011) 15 EdinLR 293.

 and may be amended following the Carloway Review, set up by the Government in the wake of Cadder to review the 2010 Act and the law of evidence more generally.11

Carloway Review, Consultation Document (2011) para 5, available at http://www.scotland.gov.uk/About/CarlowayReview.

 Alongside this, a body of case law is developing on the precise scope of Cadder, as the High Court deals with appeals brought on Cadder grounds.12

To date, most have concerned the issue of whether the appellant is time barred from raising a Cadder argument (see e.g. Ahmad v HM Advocate [2011] HCJAC 16, 2011 SCCR 148; Mitchell v HM Advocate [2011] HCJAC 35). However, see also Mullen v HM Advocate [2011] HCJAC 55 (on admissions made prior to the start of formal questioning) and Jude v HM Advocate [2011] HCJAC 46 (on waiver).

 At the time of writing, a number of issues are also awaiting determination by the Supreme Court, such as whether Cadder extends beyond detentions under section 14 of the Criminal Procedure (Scotland) Act 1995 and whether it extends to “fruits of the poisoned tree”, incriminating real evidence recovered as a result of information given by a detained suspect.13

Carloway Review, Consultation Document (n 11) para 20.

The aim of this paper is not to engage in a detailed analysis of Cadder or of the 2010 Act, as this has been done elsewhere.14

See the symposium on Cadder in a previous issue of this journal: (2011) 15 EdinLR 275.

Rather it attempts to engage with the wider issue of why a RLA might be justified. It will argue that there are four possible justifications: provision of emotional support; protection from ill-treatment; assistance in understanding or enforcing the right to silence (RTS), in relation to which there are a number of sub-justifications; and preventing wrongful conviction. Each of these has different implications for the nature and scope of the RLA that should be recognised. In legislating for a RLA, therefore, it is important to be clear about why it is being provided if the resulting legal provisions are to address the harm(s) that the legislative drafters wish to prevent. It will also be argued that the differing justifications of the RLA might explain why the Supreme Court and the High Court reached such different conclusions in Cadder and McLean respectively. In McLean, the High Court concluded that a RLA was not required because other protections – such as the corroboration requirement and the inadmissibility of admissions made as a result of coercion – made it unnecessary.15

See text accompanying nn 59-64.

 In Cadder, Lord Rodger described such protections as “beside the point”.16

See text accompanying nn 69-73.

 But if the purpose of a RLA was seen by the High Court as preventing wrongful conviction and by the Supreme Court as assisting the suspect in understanding or enforcing his RTS, then their radically differing conclusions may be more understandable.17

Although as one of the possible rationales for the RTS is also the prevention of wrongful conviction (see text accompanying n 118), this is not a straightforward conclusion and will be discussed in due course (see text accompanying n 208).

At the outset something needs to be said about terminology. A distinction can be made between a right to legal advice and a right to legal assistance. The former is narrower than the latter as a solicitor could play a wider role during detention than advising the suspect. He could, for example, act as a check on the accuracy of any information recorded by the police or a source of emotional support. For this reason, the latter term is preferred here. A distinction might also be made between a right to legal assistance and a right to the assistance of a lawyer. The former could be provided by anyone, whereas the latter requires legal qualifications.18

R Pattenden and L Skinns, “Choice, privacy and publicly funded advice at police stations” (2010) 73 MLR 349 at 357.

Again, the wider definition will be adopted here THE DEVELOPMENT OF THE RIGHT TO LEGAL ASSISTANCE IN SCOTLAND The development of the pre-<italic>Cadder</italic> statutory position

As Lord Rodger provides a detailed historical account in Cadder,19

Cadder at paras 74-92.

the history of the pre-Cadder legislative position will be traced only briefly here. In the early 19th century, detention for police questioning as we now know it played no role in the Scottish criminal justice system. The professional police force was in its infancy and the investigation of crime was the responsibility of the local sheriff who had the power to bring suspects to court for judicial examination.20

Para 74.

 This took place in private without legal representation.21

G Gordon, “The admissibility of answers to police questioning in Scotland”, in P R Glazebrook (ed), Reshaping the Criminal Law: Essays in Honour of Glanville Williams (1978) 317 at 319.

 Around the mid 19th century, the responsibility for examining suspects passed to the procurator fiscal and the sheriff's role shifted to ensuring that procedure was followed and suspects were informed of their RTS.22

Gordon (n 21) at 318.

 Towards the end of the century, section 17 of the Criminal Procedure (Scotland) Act 1887 introduced the right to consult with a “law agent” and to have that agent present during judicial examination.23

The right was not in the original text of the Bill, but was inserted by the House of Lords. The rationale for doing so seemed to relate both to providing emotional support and to ensuring that suspects understood the RTS and made choices accordingly (see HL Deb 12 Jul 1887, cols 593-610).

By the turn of the century the emergence of an organised national police force meant that the police could play a greater role in questioning suspects. Once a suspect had been arrested and charged, any formal questioning had to take place at judicial examination,24

HM Advocate v Aitken 1926 JC 83 at 86.

although this began to be used less once the Criminal Evidence Act 1898 gave the accused the right to give evidence at trial.25

Gordon (n 21) at 420.

 Statements made in answer to the charge itself were generally admissible,26

HM Advocate v Aitken 1926 JC 83 at 86.

 as were statements offered voluntarily, if a test of fairness to the accused was satisfied.27

HM Advocate v Cunningham 1939 JC 61 at 66.

 Access to legal advice was one factor taken into account in determining fairness.28

Law v McNicol 1965 JC 32 at 39.

 Police questioning prior to charge was not forbidden, but there was no legal basis for detaining people who had not been arrested.29

Thomson Committee, Criminal Procedure in Scotland: Second Report (Cmnd 6218: 1975) para 3.10.

 However, as non-arrested persons had no right to legal advice,30

Thompson v HM Advocate 1968 JC 61 at 65.

 most were unaware of this and submitted to questioning voluntarily.31

Cadder at para 83 per Lord Rodger.

 Admissions made in these circumstances were admissible provided they were fairly obtained.32

Hartley v HM Advocate 1979 SLT 26 at 28 per Lord Avonside.

It was against this background that the Thomson Committee was established, the remit of which was to examine the law on pre-trial and trial procedures in Scotland.33

Thomson Committee (n 29) para 1.01.

The Committee recommended the introduction of a power to detain and question suspects for up to six hours34

Para 3.25.

 and that detainees should be able to inform a solicitor of their detention.35

Para 5.08.

 A right to an interview with a solicitor was canvassed36

See paras 5.08 and 7.16.

 but rejected because “[t]he 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”.37

Para 7.16.

 The Committee's proposals were enacted in sections 2 and 3 of the Criminal Justice (Scotland) Act 1980 and...

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