Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
2.0.39 Compelling reasons would have to be special to the case 51 and they did notarise in Cadder. It is important to bear in mind that the United KingdomSupreme Court thought that the English judge in Salduz, Judge Bratza, hadconsidered that the Court had not gone far enough and that access ought to begiven from the point of the suspect being taken into police custody. This wasregarded by the United Kingdom Supreme Court as unrealistic 52 .2.0.40 There is an odd juxtaposition in the United Kingdom Supreme Court’sinterpretation of Salduz. It recognises, as is indeed the case, that the EuropeanCourt has tended to leave it to the contracting states to secure how a fair trial isto be achieved. The European Court affords countries a “margin ofappreciation” in how to ensure the effective protection of rights because “byreason of their direct and continuous contact with the vital forces of theircountries, the national authorities are in principle better placed to evaluatelocal needs and conditions than an international court” 53 . Thus 54 :“…the court has recognised that the Convention, as a living system,does not need to be applied uniformly by all states but may vary in itsapplication according to local needs and conditions”.2.0.41 Yet at the same time the United Kingdom Supreme Court stated that theEuropean Court’s approach is 55 :51 such as to avoid alerting others concerned in the offence, see Brennan v United Kingdom (2002) 34EHRR 18 at para 4652 Lord Hope at para 3753 R v DPP, ex parte Kebilene [2000] 2 AC 326, Lord Hope at 380 under reference to Buckley v UnitedKingdom (1996) 23 EHRR 101 and Handyside v United Kingdom (1976) 1 EHRR 737; Marcic vThames Water Utilities [2004] 2 AC 42, Lord Hope at 70 under reference to Hatton v United Kingdom(2002) 34 EHRR 1, (2003) 37 EHRR 28 and James v United Kingdom (1986) 8 EHRR 12354 Ibid Lord Hope at 38055 Lord Hope at para 4044
“to provide principled solutions that are universally applicable in allthe contracting states. It aims to achieve a harmonious application ofstandards of protection throughout the Council of Europe area, not onedictated by national choices and preferences. There is no room in itsjurisprudence for, as it were, one rule for the countries in EasternEurope such as Turkey on the one hand and those on its Westernfringes such as Scotland on the other”.2.0.42 The final phrase is perhaps an unfortunate description of Scotland’s place inEurope. Be that as it may, the statement does not seem to fit with theEuropean Court’s previous statements concerning compliance with theConvention 56 . There is also the oddity that the effect of the United KingdomSupreme Court’s decision was that Cadder could not be the subject ofdeliberation before the European Court itself 57 . But the law in terms ofCadder is that, “as a rule”, access to a lawyer must be provided as from the“first interrogation” of a suspect by the police 58 .Lord Advocate’s Guidelines and the 2010 Act2.0.43 In anticipation of the decision in Cadder, the Lord Advocate issued “InterimGuidelines on Access to a Solicitor” in June 2010. These set out instructionsto the police, and in particular Senior Investigating Officers, requiring them tofacilitate access to a solicitor in: “all cases where individuals are interviewedas suspects in police stations whether: during detention under Section 14;during voluntary attendance for interview or under common law betweenarrest and charge”.56 for a fuller critique of the decision see Lord McCluskey : “Supreme Error” (2011) Edinburgh LawReview 276; cf Leverick: The Supreme Court Strikes Back (2011) Edinburgh Law Review 28757 the Lord Advocate is not a victim who can apply to that Court58 Cadder, Lord Hope at para 4145
- Page 1: TheCarloway ReviewReport andRecomme
- Page 4 and 5: highly disruptive to the system gen
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- Page 13 and 14: 1.0 INTRODUCTIONBackground1.0.1 In
- Page 15 and 16: a solicitor” prior to, and at any
- Page 17 and 18: ole of the Group was to provide the
- Page 19 and 20: of the points made at each of these
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- Page 26 and 27: Justice-Clerk (Inglis) stated to a
- Page 28 and 29: arrest and liberty. There was nothi
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- Page 32 and 33: e a matter of fact to be determined
- Page 34 and 35: question the suspect until he/she b
- Page 36 and 37: Committee’s report when read as a
- Page 38 and 39: ultimate arbiter of constitutionali
- Page 40 and 41: was cautioned, but not told that he
- Page 42 and 43: at the whole circumstances of the c
- Page 44 and 45: Cadder2.0.35 Mr Cadder was aged 16
- Page 48 and 49: 2.0.44 These guidelines were supers
- Page 50 and 51: first required to have been “subs
- Page 52 and 53: The long term implication of this,
- Page 54 and 55: and of society as a whole. The purp
- Page 56 and 57: giving rise to the reasonable suspi
- Page 58 and 59: 3.0.15 The right of silence and the
- Page 60 and 61: complacency must be avoided and the
- Page 62 and 63: unlawful for a public authority to
- Page 64 and 65: 4.0.3 In short, the Review has gras
- Page 66 and 67: The System4.0.7 The recommendations
- Page 68 and 69: window during which these investiga
- Page 70 and 71: operates in a context where the hum
- Page 73 and 74: 5.0 CUSTODY CHAPTERS OVERVIEW5.0.1
- Page 75 and 76: next step, as quickly as possible.
- Page 77 and 78: 5.1 ARREST AND DETENTIONIntroductio
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- Page 81 and 82: Arrest without warrant5.1.9 A polic
- Page 83 and 84: 5.1.12 It was because of this lack
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- Page 89 and 90: interview. The Court stated that th
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2.0.39 Compelling reasons would have to be special to the case 51 <strong>and</strong> they did notarise in Cadder. It is important to bear in mind that the United KingdomSupreme Court thought that the English judge in Salduz, Judge Bratza, hadconsidered that the Court had not gone far enough <strong>and</strong> that access ought to begiven from the point of the suspect being taken into police custody. This wasregarded by the United Kingdom Supreme Court as unrealistic 52 .2.0.40 There is an odd juxtaposition in the United Kingdom Supreme Court’sinterpretation of Salduz. It recognises, as is indeed the case, that the EuropeanCourt has tended to leave it to the contracting states to secure how a fair trial isto be achieved. The European Court affords countries a “margin ofappreciation” in how to ensure the effective protection of rights because “byreason of their direct <strong>and</strong> continuous contact with the vital forces of theircountries, the national authorities are in principle better placed to evaluatelocal needs <strong>and</strong> conditions than an international court” 53 . Thus 54 :“…the court has recognised that the Convention, as a living system,does not need to be applied uniformly by all states but may vary in itsapplication according to local needs <strong>and</strong> conditions”.2.0.41 Yet at the same time the United Kingdom Supreme Court stated that theEuropean Court’s approach is 55 :51 such as to avoid alerting others concerned in the offence, see Brennan v United Kingdom (2002) 34EHRR 18 at para 4652 Lord Hope at para 3753 R v DPP, ex parte Kebilene [2000] 2 AC 326, Lord Hope at 380 under reference to Buckley v UnitedKingdom (1996) 23 EHRR 101 <strong>and</strong> H<strong>and</strong>yside v United Kingdom (1976) 1 EHRR 737; Marcic vThames Water Utilities [2004] 2 AC 42, Lord Hope at 70 under reference to Hatton v United Kingdom(2002) 34 EHRR 1, (2003) 37 EHRR 28 <strong>and</strong> James v United Kingdom (1986) 8 EHRR 12354 Ibid Lord Hope at 38055 Lord Hope at para 4044
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