Report and Recommendations - Scottish Government

Cadder had never been the subject of any decision of the High Court at all.As noted above, leave to appeal to that court had been refused at first andsecond sifts. The United Kingdom Supreme Court had granted special leaveto appeal from the decision to refuse leave to appeal on the basis that therefusal in itself amounted to the determination of a devolution issue, i.e. onwhether the Lord Advocate had contravened Article 6 by leading evidence ofthe appellant’s interview whilst in detention.2.0.38 The United Kingdom Supreme Court did not doubt that McLean had beendecided in line with previous Scots law. The sole issue was whether it couldsurvive the European Court’s decision in Salduz. The judges in Cadder,notably Lords Hope and Rodger, who had expressed opposite views in Brownv Stott, were clear that the McLean safeguards did not compensate for theabsence of a right of access to a lawyer and that therefore the procedures wereindeed a violation of the Article 6 right to a fair trial. The decision quoted theEuropean Court in Salduz as follows 50 :“…the Court finds that in order for the right to a fair trial to remainsufficiently ‘practical and effective’ article 6(1) requires that, as a rule,access to a lawyer should be provided as from the first interrogation ofa suspect by the police, unless it is demonstrated in the light of theparticular circumstances of each case that there are compelling reasonsto restrict this right…The rights of the defence will in principle beirretrievably prejudiced when incriminating statements made duringpolice interrogation without access to a lawyer are used for aconviction”.50 Lord Hope at para 3543