Report and Recommendations - Scottish Government

FOREWORDThe decision of the United Kingdom Supreme Court inCadder v HM Advocate had a substantial and immediateimpact on the criminal justice system. The ScottishGovernment felt obliged to introduce emergency legislationto correct the flaws identified in the system’s framework. The Crown Officeabandoned hundreds of prosecutions, some of which were for very serious crimes.Significant uncertainty remained concerning the meaning of the decision. Severalconsequent subsidiary objections to evidence were taken in cases throughout thecountry, causing disruption and delay to court processes. Appeals and references tothe High Court followed. This prompted the Lord Advocate to refer a selected groupof these appeals and references directly to the United Kingdom Supreme Court inorder to obtain clarity on key issues.Cadder and its consequences could be described simply as the necessary applicationof the law, deriving from the implied right of access to a lawyer identified by theEuropean Court under Article 6 on the European Convention of Human Rights. AsLord Hope put it in his opinion:“…there is no room … for a decision that favours the status quosimply on grounds of expediency. The issue is one of law… It mustbe faced up to, whatever the consequences”.However, the sudden over-ruling of previously well-established and accepted law isnot the best way to bring about change in any criminal justice system. It leads toinstant reactions rather than measured and thought-through plans for reform. It is1