Cadder v HM Advocate

Cadder attempted to lodge an appeal in the Court of Criminal Appeal in Edinburgh on the grounds that it was a breach of Article 6(1) (Right to a Fair Trial]) of the European Convention on Human Rights (ECHR) that he was unable to have a solicitor present during his police interview. At the first sift stage a High Court judge refused his appeal on the basis of the full-bench decision in McLean v HM Advocate ([2010] SLT 73), which had concluded that there were sufficient safeguards within Scots Law to ensure that there was no breach of Article 6(1) in having no solicitor present. Cadder appealed against the refusal and three judges refused it again in November 2009 at the second sift stage.

Cadder then sought leave to appeal to the Supreme Court of the United Kingdom. This was refused as the Criminal Appeals Administration Judge was of the view that the refusal of the earlier attempts to appeal did not amount to a determination of a devolution minute. Cadder then sought special leave to appeal directly to the Supreme Court. It was asked to consider whether Cadder was able to obtain special leave to appeal; matters surrounding his identification; and also matters relating to there being no right to have a consultation with a solicitor before an interview by the police.

The leading authority in this area of law is Salduz v Turkey 36391/02 [2008] ECHR 1542 a judgment of the European Court of Human Rights sitting as a Grand Chamber. The basic facts of the case are similar to Cadder, but Salduz had challenged on the ground that his "confession" (later retracted) had been given under duress, due to maltreatment during interrogation. It was held that Salduz's self-incriminating statements, made while detained, which formed a part of the evidence used to convict him, were not admissible because of the absence of a lawyer. The Grand Chamber in Salduz v Turkey held (para 55) that in order for the right to a fair trial to remain "practical and effective" Art 6 § 1 of the European Convention on Human Rights requires that, as a rule, access to a lawyer should be provided from the first interrogation, unless compelling reasons exist otherwise. Even so, such restrictions must not unduly prejudice the rights of the accused under Article 6. There will be irretrievable prejudice when incriminating statements made during interrogation without a lawyer present are used for a conviction [Salduz: Para 55].[4]

The appellants in both Cadder and Salduz were minors, to whom procedural protections generally apply across many jurisdictions (see e.g. s 14(1) Criminal Procedure (Scotland) Act 1995 – under which Cadder was held.)

The Supreme Court held that Cadder's rights under Article 6(1) of the ECHR had been breached because he had been denied access to a solicitor before he was interviewed by the police.