Recent criminal cases challenged in Scotland post-Cadder
As reported by the Journal Online on Wednesday 9 February 2011, a total of 867 prosecutions have not be able to proceed as a direct result of the Cadder v HMA ruling last year, the Crown Office and Procurator Fiscal Service has announced.Hume Statue outside High Court of Justiciary Edinburgh
Cadder v HMA
The 2010 decision of Cadder v HMA was a landmark case for criminal law in Scotland. At the Supreme Court, a seven judge bench held that the practice of detaining and interviewing a suspect without immediate access to a solicitor constitutes a breach of the right to a fair trial under Article 6 of the European Convention on Human Rights. Since then, there have been at least 867 prosecutions which have been unable to proceed as a direct result of Cadder, the Crown Office and Procurator Fiscal Service has announced. Below are two such recent significant instances where the accused has been able to challenge the case brought against them by the Crown on the basis of Cadder.
In November 2010, Garry McCall was permitted to leave jail in order to appeal a conviction for raping a 27-year-old woman in 2008.
Following the Cadder ruling by the Supreme Court earlier in 2010, McCall was granted bail when previously he had been unsuccessful in appealing against his conviction and prison sentence.
This illustrates the significance of the Cadder decision. In many police interviews across Scotland before the Cadder ruling, suspects have made admissions without their solicitor being present. In such cases, the police and the Crown will, therefore, have to rely on other forms of evidence in order to secure a successful conviction.
In January 2011, pensioner Barbara Riddel had her case in respect of an alleged sexual assault dropped by the Crown. Riddel, aged 81 years old, alleged that a man had sexually assaulted her in 2010 in her own home.
Following arrest and charge, the alleged attacker was told he would not face a court appearance that prosecutors decided there was insufficient evidence to proceed with the case in court.
The Crown’s statement remarked that “in the light of the Supreme Court’s recent judgement in the Cadder case Crown Counsel have reviewed Mrs Riddel’s case and concluded that there is now insufficient evidence to proceed. The case is now closed.” This was largely because some of the crucial evidence was collected during police interview where the accused had not been given access to a solicitor.
While this is undoubtedly difficult news for the alleged victims to bear, these consequences of the Cadder case are not surprising to many criminal defence solicitors in Edinburgh or the rest of Scotland (e.g. McSporrans). The judge delivering the leading judgment in the Cadder case in the Supreme Court, Lord Hope of Craighead, had noted that those who had promoted the legislation which afforded a right of intimation but not access to a solicitor were “shutting their eyes to the way thinking elsewhere was developing. Now, sadly, 30 years on the Scottish criminal justice system must reap the consequences.”
The effects of the Cadder decision are limited in scope to existing cases, including cases where appeals are outstanding. The Supreme Court has specifically ruled that the decision does not permit the re-opening of closed cases, although referrals by the Scottish Criminal Cases Review Commission may allow a limited number of cases to be resuscitated.
These consequences of the Cadder case have still surprised some, despite the Crown Office and Procurator Fiscal’s Service trying to prepare for such seismic developments by issuing interim guidelines, in addition to the Scottish Government taking steps to address the issue by laying emergency legislation before the Scottish Parliament.
Practical Criminal Law Advice
The Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act now provides for the definitive right of a suspect to a private consultation with a solicitor before and at any time during questioning, including consultation by means of telephone.
The first few months of 2011 will be a period of continued adjustment and uncertainty. What is clear is that there will be significant implications in terms of Legal Aid and the working practices of police officers and solicitors.
Given that over 800 cases have been dropped on the basis of the Cadder ruling, if you or anyone you know is or has been involved in a case where police did not give an opportunity for access to a solicitor at such times during questioning or consultation, it would be sensible to consult an experienced criminal solicitor in Scotland, such as McSporrans or Beltrami.