A decision of the UK Supreme Court has unanimously held that the detention and questioning of a suspect without access to a lawyer under Scottish criminal law breaches the European Convention of Human Rights.
JUSTICE, a British-based human rights and law reform organisation, intervened in the case as a friend of the court ("amicus curiae"). Please click here to find guidance published by JUSTICE in connection with this matter.
Cadder v. Her Majesty's Advocate involved the detention of the appellant on suspicion of serious assault. While Cadder was told of his entitlement to have a solicitor informed of his detention, he did not exercise that right. During his interview in the absence of a solicitor, he made a number of admissions which secured his later conviction. The issue was whether Cadder's detention breached his right to a fair trial under Article 6 of the ECHR.
The Supreme Court, departing from the High Court decision, held that while the lower court's decision was in line with previous domestic authority, it could not survive in light of the 2008 ECHR decision of Salduz v. Turkey. Salduz requires that a detainee have access to a lawyer from the time of the first interview unless there are compelling reasons to restrict such a right. Noting that there was "no real option" but to follow this Strasbourg jurisprudence, the Supreme Court outlined that the "right of access to a lawyer, which is implied in order to protect a right at the heart of the notion of a fair procedure under article 6, must itself lie near that heart".
This case can be compared with the Irish position. A suspect being detained and questioned by Gardaí has a constitutional right of reasonable access to a lawyer. However, crucially in Lavery v. The Member in Charge, Carrickmacross Garda Station the Supreme Court held that this did not mean that the solicitor was entitled to be present at the interviews. This judgment was delivered prior to the European Convention of Human Rights Act 2003 and it remains to be seen whether this position will be reconsidered in light of Strasbourg jurisprudence.