Hansard

On 26 October 2010, the United Kingdom Supreme Court issued its decision in the case of Cadder v Her Majesty’s Advocate. The case considered the law and practice in Scotland of interviewing detained persons in a police station without ensuring that they had access to legal advice. The UK Supreme Court judgment overturned a previous unanimous ruling of the High Court of Justiciary in 2009 by seven of our most senior judges, including the Lord Justice General and the Lord Justice Clerk. The High Court of Justiciary had previously and repeatedly upheld the Scottish law, which was introduced by a Westminster Government in 1980 and which had not been altered by subsequent Administrations there or in this Parliament.

Throughout the process, the Scottish Government, the Crown Office and Procurator Fiscal Service and the police have acted to minimise the impact of a possible adverse decision by the UK Supreme Court. The Lord Advocate issued guidance to police in June 2010 in the wake of the UK Supreme Court hearing in the Cadder case. That precautionary measure was taken when it became clear that the UK Supreme Court was considering overturning previous judgments of the Scottish courts. That was the first point at which there was any clear indication from the courts that the Scottish system might be ruled not to be compliant with the European convention on human rights.

On the very same day as the judgment of the UK Supreme Court was issued, I introduced proposed emergency legislation to ensure the continued viability of Scotland’s criminal justice system and announced a judicially led review of the law and criminal procedure in Scotland. That review, led by Lord Carloway, is well under way.

The emergency legislation—the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010—was introduced as a bill following significant cross-party consultation and was passed with the support of the vast majority of members the following day. The act was necessary for three reasons. First, it enshrined in statute a suspect’s right of access to legal advice before and during interrogation. Our law now implements the court’s decision and that important right is articulated in statute, rather that in guidance from the Lord Advocate, which does not have the same force. Secondly, the act extends powers of detention to ensure that we maintain an effective system for investigating and prosecuting crime in the new environment. Thirdly, the act reinforces the need for finality and certainty in concluded cases, as articulated by the United Kingdom Supreme Court.

The UK Supreme Court decision emphasised the importance of finality and legal certainty in concluded criminal cases, but it affected cases in which an appeal had been made timeously or in which the relevant point had been taken during a case that was still live. The Government could not limit that through legislation. At the time of the judgment, the Crown Office and Procurator Fiscal service indicated that up to 3,500 live cases could be affected. The Crown Office has been working hard to find other ways in which to support cases that are affected by the ruling, such as looking at alternative sources of evidence.

Those actions, and the contingency measures that were taken previously, have been effective in that they have dramatically reduced to 867 the number of cases that are unable to proceed. That represents less than one quarter of the cases that were originally feared to be affected and a tiny percentage of the cases that our courts process each year.

In some solemn cases, the Crown has decided to discontinue proceedings in the meantime. Those cases are not closed and proceedings may be raised should additional evidence come to light in future.

I am acutely aware that that will be cold comfort to the victims, relatives and witnesses who are involved in the cases affected and I am particularly conscious that among those cases are some related to serious offences. I have no doubt that the victims will find it hard to understand how a case involving the very different Turkish justice system has had such a dramatic effect on Scots law, which already had strong protections for suspects through corroboration and the right to silence.

The loss of any proceedings on Cadder grounds is a matter of regret. However, I believe that the strong action that the Government has taken in the wake of the Cadder judgment means that we can maintain an effective system for the prosecution and investigation of crime and avoid many more victims being denied justice.

It remains a fact, however, that a court from beyond Scotland has imposed this change on us in a way that affects live cases. Scotland is uniquely susceptible to the effect of European convention on human rights challenges in criminal cases, because we are subject to the Human Rights Act 1998 and the effects of section 57(2) of the Scotland Act 1998.

Scotland does not have direct access to the European Court of Human Rights to defend its laws in the way that other criminal jurisdictions have. That is an anomaly that should be rectified, but that requires legislation on the part of Westminster. Traditionally, in criminal matters, the High Court of Justiciary had the final say, but the route of raising devolution issues that is concerned today is undermining its final authority. The UK Supreme Court has taken on a much greater role in criminal matters than was anticipated at the time of devolution. The Government’s view is that the centuries-old supremacy of the High Court of Justiciary as the final court of appeal in criminal matters must be restored.

As a matter of principle, I want to ensure that Scotland is in no worse a position than other jurisdictions in the UK and Europe, but this is a reserved issue that can be dealt with only at Westminster. The Advocate General has proposed changes for inclusion in the Scotland Bill, but they could make the situation worse. On 8 February, the Lord Advocate said to the Scotland Bill Committee:

“There is a real danger that we will have … a complete loss of identity for Scots law, unless the Supreme Court process is genuinely rarely exercised”.—[Official Report, Scotland Bill Committee, 8 February 2011; c 480.]

Within the constitutional framework that is afforded to us at this time, the Lord Advocate has been compelled to seek clarity from the UK Supreme Court on Cadder-related questions that have been raised in a number of criminal cases. She has asked the High Court of Justiciary to refer a further five cases to the UK Supreme Court for definitive resolution on a number of Cadder-related issues. That is necessary to minimise the uncertainty related to those further points.

In the period until those issues are resolved, we will continue to take action. The Association of Chief Police Officers in Scotland has issued guidance to forces on issues surrounding interviews at the locus as an interim measure until the law is clarified, and I know that those issues are also being considered by Lord Carloway.

It is expected that the court will consider these cases later this year and we will work closely with the Crown to ensure that it has any assistance that it requires. I stress at this point, however, that the issues are narrower than those in the Cadder judgment and are expected to affect a much smaller proportion of cases.

In the run-up to the decision of the UK Supreme Court, I sought to involve members on all sides in setting out the situation that we faced and the impact that it would have, and to engage as openly as possible in exploring how we would seek to minimise the effects of the decision.

The vast majority of the chamber supported our aims and our plans, and I hope that we can continue in that spirit, to preserve Scots law and protect our communities.