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Lecture notes

Law of Evidence - Lecture 11 - Key Areas of Reform (recent, current - and future)
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Lecture notes for the Law of Evidence module linked to Raitt on Evidence. Author achieved a first-class grade for the module.

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  • June 3, 2024
  • 8
  • 2020/2021
  • Lecture notes
  • Dr lesley-anne barnes macfarlane
  • Lecture 11

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Lecture 11 – Key Areas of Reform (recent, current - and future)
N.B. This, final, topic provides a general overview of the current reform, from its beginnings to the
present date. This Handout was updated in August 2020, and the module leader will provide
information of the current state of play when we cover the topic in class.



CADDER: A GAME CHANGER IN RESPECT OF POLICE QUESTIONING

‘The decision by the Supreme Court to uphold the appeal in Cadder v Her Majesty's Advocate will have
profound implications on Scots… Law for many years… As a busy criminal law practitioner with more
than 30 years experience, it will change the way we do things here in Scotland forever.’ BBC News, 26
October 2010



A. INTRODUCTORY OVERVIEW: WHERE CADDER FITS IN

In the decades before the Cadder judgement, this idea in Scotland that people ought to have access
to a solicitor, in the 70s, was certainly not supported in a law.

Thomson Committee Report (1975): ‘The purpose of [police] 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’

Criminal Procedure (Scotland) Act 1995, ss 14-15 – these sections were amended to give a right of
access to a solicitor after the decision of the UK Supreme Court in Cadder by the insertion of ss 14A
and 15A (see Section D below in this Handout) and then repealed entirely by the

Criminal Justice (Scotland) Act 2016 (in force since 25 January 2016): these newest provisions, broadly,
strengthen the rights of individuals questioned by the police further – following the recommendations
of the Carloway Report.



B. SIGNIFICANT CASES PRECEDING CADDER

Paton v Ritchie 2000 JC 271

Mr Patin was seen by police walking away from a building where the burglar alarm was going off. They
began to chase him and he began to run and he found himself arrested and was taken to the police
station. He said that he did want a solicitor to be aware that he was being detained, which was the
right at the time in Scottish statute. Then he was interviewed by the police without a solicitor present.
There was there was no problem with that happening back in that time and day.

Well, he made various incriminating statements to the police when he was being interviewed and it
led to him being charged on summary complaint with breaking and entering into premises with intent
to steal. And at his trial he entered an argument based on his Article 6 rights that he ought to have
had a solicitor present essentially to prevent him from incriminating himself.

This is what the court said in considering the issue:

(per Lord Justice Clerk (Cullen) at 276D):

, ‘[N]either Scots law nor the European Convention required that in all cases a detainee be afforded the
opportunity to have his solicitor present’,

Nobody had to right that point to have access to a solicitor before or during a police interview.



Salduz v Turkey (2008) 49 EHRR 421, GC

This was a case involving a young man in Turkey. He was only 17 years old. He took part in a
demonstration, which was deemed to be an unlawful demonstration. He was detained by the anti-
terrorism branch of the police and he was questioned with no solicitor present and eventually made
various admissions, during the course of which he allegedly confessed to certain offences. Later that
day, he retracted his statement before a public prosecutor. He maintained throughout the
proceedings that this statement was made under duress. He said he only made the statement because
he was not allowed access to a solicitor until he confessed. He was tried by a state security court and
convicted to four and a half years in prison, which was reduced to two and a half years because he
was a minor at the time.

He took Turkey to the Grand Chamber at the European Court of Human Rights. Although he was told
that his right to remain silent initially, he was told that until he confessed, he wouldn't get access to a
solicitor and no lawyer was present during the interview.

(Grand Chamber at paras 51-52):*

‘although not absolute, the right of everyone charged with a criminal offence to be effectively
defended by a lawyer, assigned officially if need be, is one of the fundamental features of fair trial …’

‘Nevertheless, [Article 6] does not specify the manner of exercising this right. It thus leaves to the
contracting states the choice of the means of ensuring that it is secured in their judicial systems, the
court's task being only to ascertain whether the method they have chosen is consistent with the
requirements of a fair trial.’

‘However, this right has so far been considered capable of being subject to restrictions for good cause.
The question, in each case, has therefore been whether the restriction was justified and, if so,
whether, in the light of the entirety of the proceedings, it has not deprived the accused of a fair
hearing, for even a justified restriction is capable of doing so in certain circumstances.’

The court was saying that the right to have a solicitor present was part of your Article 6 right, but that
as long as you were broadly a fair legal system/process, then looking at the whole way that you treated
people going through the criminal justice system from start to finish, you may have some wiggle room
on having a solicitor present, if you can show good cause justified, that all other things being equal,
it's a fair hearing.

Salduz's complaint was upheld in that particular case.



HMA v McLean [2009] HCJAC 97; 2010 SLT 73

This case concerned theft of a motor vehicle and fire raising - this was what M. McLean was ultimately
charged with. He was taken to police station. He was detained by the police and interviewed without
a solicitor present. He was not offered an opportunity to have legal advice or representation before

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