Cadder v HMA and Loss of Identity for Scots Law

by ScotsLawBlog on February 9, 2011

Scotland’s top prosecutor, The Lord Advocate, The Rt Hon Elish Angiolini QC WS, has warned of a loss of identity for Scots law following on from the Supreme Court’s ruling on the Cadder case. The Lord Advocate suggests that the Supreme Court should only have the power to consider newer legislation or decisions with major constitutional consequences.

Stair Memorial Encyclopedia

Stair Memorial Encyclopedia

The Cadder decision means that in Scotland, police can no longer question suspects without allowing them access to a solicitor. For further information on Cadder, see the ScotsLawBlog article “Cadder Goes Forth: Emergency Amendments to Scots Criminal Law” .

The Lord Advocate made her remarks on 8 February 2011 when questioned by MSPs on Holyrood’s powers potentially being increased through the Scotland Bill.

Potential Loss of Identity of Scots Law

The Rt Hon Elish Angiolini told the Scottish Parliament’s Scotland Bill Committee: “My slight concern is that, because of the approach of the Supreme Court, there is a real danger that we will not just have harmonisation of our criminal law, procedure and evidence, through that process, but that there will be a complete loss of identity for Scots law unless it is something which is genuinely rarely exercised in the context of something which is of substantial constitutional significance across the United Kingdom or where it is a very new piece of jurisprudence which is clearly ambiguous.”

Update at 9 February 2011: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. A separate blog post to come on these new, perhaps unsurprising, findings.


First, it would appear that the powers exercised in the Cadder judgment can and should be seen as being exercised in the context of something which is of substantial constitutional significance across the United Kingdom. During my time at Glasgow University I wrote my dissertation on a topic which centered on Article 6 of the ECHR, albeit in an international private law context. For my dissertation together with legal dissertation tips, click here. One of the lessons learned early on was in respect of the importance given to human rights legislation. As Lord Justice Mance (as he then was) noted “it is now imperative to reach conclusions which reflect the “importance attaching in today’s world and in current international thinking and jurisprudence to the recognition and effective enforcement of individual human rights.” (Jones v Saudi Arabia [2004] EWCA Civ 1394 (CA), at [96]). On the other hand, in the context of prisoners’ rights to vote, it is interesting that there have been calls, e.g. on 7 February 2011, for the UK to cut its ties with the ECtHR.

Second, it should be stressed for lay readers that Cadder is not the first example of a Court located in England overruling a decision from a Scottish court. Perhaps the most famous delictual case was a decision made by the House of Lords: Donoghue v Stevenson [1932] AC 562. For analysis regarding Cadder and other landmark cases heard on appeal, such as Donoghue v Stevenson, see the Scotsman article, Purdy, Pretty, Campbell … and the case of a Paisley snail and in particular at page 2 and page 3.

Third, nevertheless, it is still important for such comments regarding the preservation of the identity of Scots law to be made. With the inception of Alternative Business Structures (ABS) across the UK and the trends towards expansion if not globalisation (which have been demonstrated, for instance, by DLA recently forming the largest law firm in the world following its merger with its Australian sister-firm), coupled with more widespread use of the Internet with many free communications readable from anywhere on the planet, it is easy to see how a legal system could lose its roots. With more partners from the big Scottish law firms heading south towards London in search of more and bigger business, private law in Scotland is also taking a hit, with more and more contracts having governing law and jurisdiction clauses in favour of English law and the English courts respectively. None of this is, necessarily, a bad thing, but it is important that through this rapid period of change for the legal markets of Scotland, the UK and indeed the world, Scots law does not lose its unique identity.

For further information, see also the BBC News article on the Lord Advocate’s comments entitled Lord Advocate Elish Angiolini on legal identity ‘loss’

Comments welcome below.

Best wishes,

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