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1. The appellant was detained by police under s 14 (6) of the CPSA Act 1995 on suspicion of serious assault. He was subsequently interviewed under caution; the effect of his resulting admissions being his arrest and charging. The admissions were led as evidence on trial at the Sheriff Court on May 2009, and he was convicted on all charges. An appeal to the High Court of Justiciary on grounds of contravention of the appellants Art. 6 Convention right to a fair trial was refused at 1st sift. A second appeal against the refusal was considered by 3 judges at 2nd sift stage and was refused. The appellant requested leave to appeal to the Supreme Court in December 2009 and was rejected on the basis of the 2nd sift ruling there was no devolution issue. The appellant then requested special leave for appeal under schedule 6 of the Scotland Act 1998.

2. The appeal to the Supreme Court was against a point of law raised by the decision in HMA v McLean 2010 SLT 73 with regards to reliance of the Crown on admission statements made by a detainee during police interview without access to legal advice was a breach of his Art. 6 (3) (c) right to a fair trial read in tandem with Art. 6 (1) of the ECHR.

The issue was also raised whether the decision by the Lord Advocate in McLean was exempt under s 57 (2) from challenge under Convention rights. The applicability of the Grand Chamber decision in Salduz v Turkey (2009) 49 EHRR 19 to the case in consideration, and whether the Supreme Court should subsequently follow the Salduz ruling in contemplation of cases that followed. A fourth issue was whether legal provisions in the Scottish jurisdiction, justify a fair trial relying upon such admissions made during detention without access to legal representation, and despite the ruling in Salduz v Turkey would not constitute a breach of Convention rights under Art. 6.

3. In HM Advocate v McLean the Lord Justice General interpreted the ratio dicedendi derived from the decision in Salduz v Turkey as either an absolute or a non-absolute principle, the SISL Legal Methods Exercise 2011 0705800g

2 latter viewing the ratio in a narrower sense that distinguished the facts of the precedent case from the present: that the upholding of fairness of the trial is dependent on the circumstances of the case, and what existing provisions there are in state jurisdictions to ensure fairness. The second interpretation was explanatory of the Lord Justice Generals ruling in McLean, where it was held the concurrent provisions in the Scottish system; in particular those within the Criminal Procedure (Scotland) Act 1995 and corroboration of evidence were sufficient to avoid a breach of Article 6 of the Convention by providing fairness to the accused despite the EctHR ruling in Salduz.

4. Lord Hope considered a number of legislative provisions to be relevant: Sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995; providing for statutory procedure for the detention and questioning of individuals. Sections 57 (2), (3) of the Scotland Act 1998; relating to Community Law and Convention rights and 100 (3B) relating to bringing proceedings against the Scottish executive on grounds of Convention rights. Sections 2 and 6 of the Human Rights Act 1998; relating to interpretation of convention rights and acts of public authorities. Articles 6 (1) and 6 (3) (c) of the European Convention on Human Rights. Referring to right of individuals to a fair trial and legal representation.

5. The High Court of Justiciary cases: Paton v Ritchie 2000 JC 271, Dickson v HM Advocate 2001 JC 203 and HM Advocate v McLean 2010 SLT 73 were overruled by the decision in Cadder v HM Advocate [2010] UKSC 43.

6. Lord Hope found the decision in Salduz v Turkey not binding on the Supreme Court but highly persuasive. He relied upon the ratio in Salduz for his judgement, with reference to appropriate provisions of the Human Rights Act 1998 and cases that followed Salduz.

Lord Hope stressed the importance of the Salduz decision through reference to 2 (1) of the Human Rights Act 1998: that when a UK court arrives at a decision over a Convention issue it must have taken into contemplation any decision of the EctHR. He refers to the opinions of Lord Slynn and Bingham in previous rulings of the House of Lords concerning Strasbourg

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3 jurisprudence; that the court should follow any clear and consistent jurisprudence and should not depart from carefully considered judgements of the Grand Chamber.

He added weight to the Salduz decision by stressing the consistency and clarity of the EctHR in upholding its ruling in a select number of cases (provided by JUSTICE) that followed, and he inferred the effect of the ruling was that all member states are obliged to structure their legal systems to adhere to the decision where it is found applicable. He highlighted such a restructuring was already underway in Belgium, France, the Netherlands and Ireland, and rejected the proposition that provisions were available in the Scottish system to ensure a fair trial in light of the ruling in Salduz.

7. Judge Bratzas opinion concurred albeit adopted a stricter approach to the principle derived from Convention rights litigations prior to Salduz v Turkey. He differed from the conclusion reached by the Grand Chamber by stressing that access to legal advice should be paramount at the point of detention, not solely where interrogation would be concerned as proposed by the majority decision, to avoid ill treatment of the detainee and resultant contravention of Art. 6. Lord Hope disagreed. He doubted the practicality of the propositions made in Judge Bratzas opinion; that in any instance of detainment of a suspect there would be a delay in time between detainment and the arrival of a legal advisor. He furthered that this would be unfeasible with regards to s 14 (2) of the CPSA 1995 which limited detainment to a period of six hours, and that it would be against public interest in the detention and suppression of crime if detention had to be delayed until arrival of a solicitor. He drew upon the broader interpretation of the opinion of Judge Bratza by Lord Roger, that legal advice should be readily available upon detainment and therefore never refused as opposed to an obligation to ensure availability despite circumstance.

8. The Lord Advocate aimed to justify her utilisation of the police interview under s 14 and s 15 of the CPSA 1995 as evidence in McLean through s 57 (3) of the Scotland Act 1998; which provided for an exemption from incompatibility with Convention rights through s 6 (2) of the Human Rights Act 1998. Section 6 (2) allows for exemption where primary legislation of the UK Parliament prevents any alternative action or cannot be read or given effect in such a way as would be compatible with Convention rights.

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4 Lord Hope dispensed of the Lord Advocates submissions through a unified contextual approach in interpreting the provision in s 14 (7) of the CPSA with reference to s 6 (2) of the Human Rights Act. Lord Hopes approach was an amalgamation of the literal and purposive approach in identifying any possible interpretation of section 14 (7) of the CPSA that would allow for omission of interview evidence on grounds of Convention rights. He stressed the literal capability of s 14 (7) in bearing the interpretation that such evidence could in fact be deemed inadmissible. He then gave further purpose to the provision in the context of the Strasbourg jurisdiction, with reference to the decision in Salduz; that admission of such evidence by a domestic court is a breach of Convention rights provided there was not a compelling reason to lead such evidence. Lord Hopes finding that a Convention-compatible interpretation of s 14 (7) of the CPSA was possible confirmed in his view that the Lord Advocate was under no statutory obligation to rely on the evidence under s 6 (2) of the Human Rights Act, and therefore had no defence under s 57 (3) of the Scotland Act.

9. Lord Hope held the decision of the Supreme Court would be applicable only to existing appeals to convictions and in such cases the principle stands that a detained person must have had access to an enrolled solicitor before questioning is compulsory unless there were compelling reasons not to adhere. He stressed the decision would not apply to finalised cases, following obiter dicta in A v The Governor of Arbour Hill Prison [2006] IESC 4, [2006] 4 IR 88 which placed restrictions upon the retrospective effect of judicial rulings.

10. Sections 1 -3 of the 2010 Act now incorporate (in section 1) a right of access to private consultation with a solicitor before questioning which must be disclosed to the suspect at relevant points in proceedings. Section 2 provides for automatic availability of legal advice and assistance to a relevant client where demanded by circumstance and without reference to financial limit. Section 3 provides for extension of the maximum period of detention from 12 to 24 hours when necessarily authorised by a constable with or above rank of inspector who has not been involved in investigation of the detainee. Prior to authorisation the officer must disclose the rights under section 1 to the detainee, and an opportunity must be made for written or oral representation of the detainee or by the detainees solicitor. The officer must decide whether authorisation can proceed without exercise of section 1 rights if necessary. The authorisation and reasons for must be disclosed to the detainee or their solicitor.

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11. There are four rationes in Cadder in accordance with the legal issues that were considered by the court.

That the decision of in McLean and prior cases in the High Court Jurisdiction to rely on statements obtained during detainment without access to legal advice had contravened Convention rights by a breach of Art.6 right to a fair trial in conjunction with the Grand Chamber decision in Salduz.

In McLean the Lord Advocate had no justification for exemption under s 57 (2) of the Scotland Act and the decision therefore overruled and appeal allowed. That the rule/principal derived from the decision in Salduz was absolute and it must be adhered to by all member states; and allowed only for limited discrepancies depending on the circumstances of the case, not differentiation between state jurisdictions. That the provisions current in the Scottish legal system, notably s 14 and 15 of the CPSA 1995, were insufficient in compliance with Convention rights by failing to provide legal safeguards against a breach of Art. 6 and therefore must be amended.

12. The appellant sought allowance of the appeal and remedy in quashing of his conviction. Lord Hope allowed the appeal, but was sceptical whether in the police interview was indeed regarded as substantial evidence, or whether the jury would have reached an alternative verdict had the evidence been deemed inadmissible such as in McInness v HM Advocate. He stressed the Supreme Court was not in a position to make such a judgement, and so remitted the case to the High Court for further action.

13. The potential points of law raised in the appeal may be akin to those considered in Cadder v HM Advocate; whether the Crown relying on statements obtained during detainment without access to legal advice would as a result render the trial unfair and would breach the individuals Art. 6 Convention rights unless circumstances suggested otherwise. A second potential point is whether the existing provisions in the Scottish system are sufficient as to avoid such a contravention of Article 6 right to a fair trial.

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6 Lord Hope acknowledged in Salduz it was held that in determination of a breach of Convention rights there would be room for discrepancies between the circumstances of the case. There is inference from the facts of the present case that the statement was made out with the point of detainment under s 14 of the CPSA 1995, and was therefore made as a response to preliminary police questioning of a person under s 13 (1) of the CPSA and the facts of the case in Cadder may not be considered relevant. If the statements were made prior to detainment, CPSA 1995 Section 13(1) provides for where a constable has reasonable grounds for suspecting that a person has committed an offence he may ask him for an explanation of the circumstances which have given rise to the constable's suspicion. In the present case the constable adhered to s 13 (1) by asking Mr Scott for an explanation of the circumstances which gave rise to his suspicion prior to detaining him, and his suspicion was justified by the naming of him by the victim. Mr Scotts response was voluntary and there appeared to be no duress. However, for the appeal to be allowed there is a key issue of whether he knew the persons who questioned him were police detectives. If not it would constitute a possible encroachment upon the suspects Art. 6 right to a fair trial by the procedure extinguishing the very essence of the privilege against selfincrimination, as decided in Jalloh v Germany (2007) 44 EHRR 32. Concerning safeguards available in the Scottish system, in Cadder Lord Hope sourced the current statutory procedure in the Scottish system under the CPSA 1995 from the recommendations of the Thomson Committee: Criminal Procedure in Scotland 1975 which stressed compromising between securing rights of individuals and investigation of crime. The provisions within the CPSA 1995 with regards to admissibility of statements made under police detainment without legal advice were deemed insufficient in removing the disadvantage in Cadder. It would be a matter for the Court to consider whether the provisions in s 13 concerning admissibility of statements prior to such detainment were equally insufficient to avoid breach of Convention rights, as it was held in Cadder that the Strasbourg jurisprudence allowed for differentiations in circumstances of a case and not discrepancies regarding national law in upholding Convention rights. If the statements were made within detainment, the appellant was informed of his rights upon arrival at the police station in accordance with s 14 of the CPSA, and a solicitor attended in accordance with the amendments in the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010. However, at the point of where Mr Scott was being initially detained under the CPSA s 14, it is unclear whether the officers followed statutory safeguards against self-incrimination in prior cautioning the suspect under CPSA s 14 (9); that a person detained shall be under no obligation to answer any question other than to verify his identity SISL Legal Methods Exercise 2011 0705800g

7 under s 14 (10), and a constable must inform him both on so detaining him and on arrival at the police station or other premises. As the officers are under a statutory obligation to inform the detainee of his right to absolute silence they would therefore have breached statutory procedure, and the leading of such statements as evidence would provide grounds for appeal. If Mr Scott had been informed of his rights at the point of detention, there may be grounds for rejecting the appeal with reference to Lord Hopes opinion on the Strasbourg Jurisprudence in Salduz; where he criticised the opinions of judges Zagrebelsky and Bratza by doubting the practicality of having a solicitor present at the point of being taken into police custody, and that the prospect of not denying a detainee of legal advice was sufficient to avoid breach of Art. 6. In conclusion, the appeal could be allowed on grounds of Contravention of Art. 6, but it is doubtful whether the basis of appeal would be based fully upon the rationes in Cadder where there was no suspected breach of statutory procedure. The facts of the present case infer a possible breach of statutory procedure in failing to administer caution under s 14 of the CPSA 1995 at the point of detainment where the incriminating statements were made. The reliance upon such evidence by the Crown in conviction would potentially breach the individuals Art. 6 Convention right to a fair trial. It would also be necessary for the Court to consider if the statements are treated as preliminary questioning prior to detainment under s 13 whether it was obtained by means resulting in a potential breach of Art. 6.

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