Report and Recommendations - Scottish Government

2.0.25 The common law concept of fairness, which governs the admissibility ofevidence became, and is now, overlain by the requirement of Article 6 fairness.Scottish courts must therefore consider how best to apply both the commonlaw test and the Article 6 right in assessing the legality of pre trial and trialprocedures and, in particular, the admissibility of answers given by suspectsduring police interviews.2.0.26 The application of Article 6 fairness was not regarded by the Scottish courts asinvolving a fixed set of absolute rights. It was understood that the fairness of atrial in Article 6 terms was to be assessed by looking at the trial process as awhole and not just at what might have occurred in the police station. In thisarea, however, the Convention jurisprudence evolved significantly. It is anunderstanding of that jurisprudence and thus what rights under Article 6 areabsolute, as distinct from implied but not necessarily applicable in allcircumstances, that lies at the core of Cadder and the European Court decisionthat prompted it.Salduz2.0.27 The starting point in the post Devolution era for looking at the absolute orqualified nature of Article 6 rights is the decision of the European Court inSalduz in 2008. Salduz involved a 17 year old arrested at 10.15 pm by theanti-terrorism branch of the Izmir Security Directorate on suspicion of takingpart in a demonstration in favour of the illegal PKK (Kurdish proindependence party) and hanging an illegal banner from a bridge. Mr Salduz37