As the voice of the legal profession in the West Of Scotland we run events, seminars for our members and keep them up to date with developments. Join us today.
In October 2010 the Cabinet Secretary for Justice....................
ACCESS TO JUSTICE IN AN AGE OF AUSTERITY THE CARLOWAY REVIEW ON THE EFFECT OF CADDER.................
The Work of the Review
In October 2010 the Cabinet Secretary for Justice, Kenny MacAskill, decided to set up a Review, independent of Government, to consider the implications of the decisions of the United Kingdom Supreme Court in Cadder v HM Advocate and the European Court of Human Rights in Salduz v Turkey . The Review was also to look more generally at the law of evidence in criminal cases, including the requirement for corroboration, and to see if any changes required to be made in relation to the emergency legislation passed by Parliament in the wake of Cadder. The Cabinet Secretary asked the Lord President to nominate a single High Court judge to lead the Review on a full time basis with the support of staff and the assistance of a Reference Group of experts. I became that nominee and began work on the project in November. At the time of my nomination, it was anticipated that the Review would report in about a year from then and that remains my expectation.The work has not taken me terribly far, in geographic terms. In these days of the internet, much of the information which the Review has needed is readily available on websites throughout the globe; some no doubt more reliable than others. There has been no attempt to conduct a worldwide survey of all legal systems, but the Review looked first at similar adversarial common law systems both within and outwith Europe to see how they tackle the problems of balancing the interests of the state in the effective investigation and prosecution of crime with those of an individual’s human rights as defined either in a domestic constitution or the European Convention. Thus, in the Convention context, England and Ireland were the most obvious candidates for study. The Review has therefore closely studied the workings of the Police and Criminal Evidence Act (PACE) 1984 in England and Wales and the equivalent legislation in, and the constitution of, Ireland. There were short visits to Manchester, Dublin and London with a view to exploring the practicalities of their procedures in more detail. In the wider context, the Review turned to the systems in Canada, Australia and New Zealand to see if there was anything which could be learned from them. The Review spoke to persons operating within those systems, again to gauge how the rules and principles, the pure terms of which might have been evident upon an internet or hard copy library search, worked in practice. At the same time as conducting this exercise, the Review secondly examined the Convention jurisprudence in some detail in a number of different areas. Articles 5 and 6 were the focus, but it became clear that what was also required was an understanding of how the European Court operated in general and in particular how it expected its decisions to be used to form a system of precedent for decision making in the Convention countries. At the heart of the decision in Cadder was the view, expressed especially by Lord Rodger , that even the widest margin of appreciation was not going to permit the interview of a suspect in detention without first giving him the opportunity of access to a lawyer. Once again, the Review spoke to persons operating directly in the European context, with intent to grasp what the thinking of the Court was and where the Court’s jurisprudence might go next. The Review of course looked at individual European countries to see how they operated. Fortunately, there have already been a number of comparative studies on the extent to which defence rights are rendered effective both in European Union states and in the courts of almost all of the signatories to the Convention . It was therefore not necessary to start any empirical research at ground level. The Review has been working for a year. Until it recently downsized as a consequence of the research phase drawing to a close, it has involved a full time team of six, including a solicitor seconded from the Scottish Government and a procurator fiscal from the office here in Glasgow. The Reference Group consisted of nominees from the Faculty of Advocates, yourselves at the Law Society (Ian Bryce), the Sheriffs’ Association, the Crown Office, the Association of Chief Police Officers, the Legal Aid Board, the Human Rights Commission and the Criminal Cases Review Commission, as well as acknowledged specialists in human rights and comparative criminal law systems. Although the Group met on only a handful of occasions in plenary session, there were many smaller meetings with its constituent members to consider detailed papers, which had been prepared by the Review team, on the individual topics encompassed by the Terms of Reference. All the papers and minutes from the Reference Group meetings, as well as notes from the more detailed mini meetings, were made available on the Review website . Throughout, the Review has attempted to put into the public domain as much written material covering its progress as was possible. It advised all those with whom it had contact at meetings that, whereas it would not necessarily disclose what an individual had said to it in private, the Review did not regard anything it said to them as confidential. All those participating in the Review exercise were advised that they should feel free to discuss with others, notably any institutions to which they belonged, anything that was being said or discussed with or by the Review team. As well as talking to many of those involved, or even just interested, in the criminal justice system, the Review went out into the streets in an attempt to see, so far as practicable, what actually happens. For example, a visit was paid to London Road police station to view detentions taking place, to see how the suspects were advised of their rights, to monitor the extent of electronic recording and to observe the conditions in which the suspects were kept. This was followed up, on a different occasion, by a trip to Ballater Street to see the police reports coming in and being marked by the procurator fiscal deputes for processing in court that day. From there, the Review went to Glasgow Sheriff Court on a Monday morning to view the custody courts in action and to gain first hand experience of the scenes in the cells with agents and others trying to consult with those detained or arrested. The practical workings of the Legal Aid Board’s Call Centre were also observed at first hand. The Review produced its Consultation document at the beginning of April. This was designed to promote public participation. The document was a scaled down version, in terms of bulk and detail, from the mini papers which had been produced for the Reference Group. It was much more general in its content; seeking to provoke views from the widest possible spectrum of the public on what were, and are, clearly extremely important aspects of criminal law and practice. It was with this document that the Review went out to conduct its Road Shows, with the assistance of Reference Group members, on the core areas of police questioning and sufficiency of evidence. Those took place in Aberdeen, Inverness, Glasgow and Edinburgh. In addition, there was a further meeting in Edinburgh dealing with the specialised areas of criminal appeals and references from the SCCRC. In these times of rapid electronic communication, the Review did not see any merit in taking evidence from persons in any formal sense. Everyone was given an opportunity to become involved and to state what their positions were. In the absence of any objection, all responses were published on the website for all to read and, if appropriate, to comment upon. Where the Review did not fully understand a written response to the Consultation document on an important point, it went back to the person or institution and met with them to tease out the issues raised. On the whole, the response to the Consultation document was extremely impressive. There were some very detailed and helpful papers from a variety of different sources. Many institutions and individuals were able and willing to participate in what is intended to be a democratic process of legal change in the post devolution era. From the solicitors’ branch of the profession, there were responses from the Law Society, the Society of Solicitor Advocates, the Glasgow Bar Association and the Dumbarton Faculty. Without seeming to be unnecessarily selective, in addition to those responses, those from Justice, the Human Rights Commission, the police organisations, the Crown Office, the Children’s Reporter, the Criminal Cases Review Commission and the Judges were particularly thought provoking. There were replies from academics, notably one from Glasgow University, which assisted considerably in unearthing material which the Review had not seen. Some individual responses and comments from those operating in specialist areas, including victims’ group, also pointed the Review in directions in which it had not previously travelled.
Once all the responses had been ingathered, each was considered and any new material referred to was looked at. Some previously mentioned articles or authorities were revisited in a fresh light. At the end of that process, once the Review stopped delving into new fields, it was reasonable clear that it had travelled a good distance in terms of understanding the implications of Cadder, Salduz and other human rights based decisions for Scotland. It had a reasonable, if by no means complete, grasp on how other systems wrestled with similar problems to those experienced in Scotland and had, or in some cases had not, come up with a variety of different solutions . It had also developed a reasonably accurate notion on what the various responding institutions, agencies, interest groups and individuals thought of what had happened and how they thought the system ought to be developed. The Review is now in the end game. It is pulling all the threads together to weave the tapestry of the final report, which will be completed this Autumn. There is one conclusion that is already obvious. It must not be underestimated if we are to advance our legal system in accord with modern legal thinking, yet at the same time respecting the beneficial elements in Scottish legal thinking. The implications of Cadder for the profession, or at least the part of it engaged in criminal work, have been, and are likely to continue to be, significant. It is not simply that decision, and that of Salduz, but that in Dayanan v Turkey and the soon to be announced “sons of Cadder” cases that will require changes in work practices and will alter streams of income. What then are these implications and how the law is likely to develop in the medium and longer term? I cannot yet tell you what my own recommendations are going to be, but I can provide some insight into the likely impact of these decisions in some areas of direct interest to criminal practitioners. The effect of Cadder
Cadder has had an immediate impact on the criminal justice system. In terms of the emergency legislation, all suspects, whether arrested, detained under section 14 or voluntarily attending a police station, have the right of access to a lawyer prior to interview. If that right is not afforded, there will be an infringement of a person’s right to a fair trial in terms of Article 6, at least if, ultimately, there is a trial in the domestic sense. If the suspect wishes to exercise that right, he/she must at least be able to speak to a solicitor in private. This involves, as a minimum, a telephone call and, over time, it will, in all probability, be provided by video link, using Skype or some other internet based system.The failure to provide access to a lawyer prior to interview constitutes an automatic infringement of the Article 6 right to a fair trial except in rare exceptional circumstances. Now this is the important point to comprehend. The thinking that leads to this conclusion is predicated on the basis that the interview is regarded, in Convention terms, as part of the trial process. The implications of this for an adversarial system, and apparently for the inquisitorial also, are profound. Thought through, it means that the trial starts at least by the time of the interview, if there is one, by the police in the police station and not, as traditionally viewed, with the swearing of the first witness in the courtroom. This is in tune with the European Court’s thinking regarding the point at which a person is “charged” with a criminal offence and thus subject to the protections in Article 6. Again, taken to its logical conclusion, when it comes to a discussion of whether a suspect should waive his right of access to a lawyer prior to an interview, what is involved is not waiver of a right to a solicitor in an investigative process but to one in the trial process itself. What the client is doing, if he does not want a lawyer present at his interview, is waiving the right to a lawyer during part of his trial. At present, there is a relatively low take up of the right of access to a lawyer. ACPOS statistics indicate a 75% waiver rate. Many suspects are content to waive, although the United Kingdom Supreme Court will now have to rule on whether that can be done in the absence of legal advice to do so . The reasons for the high rate of waiver are various. They include considerations connected with the seriousness of the offence, the perception of the suspect relative to his guilt or innocence, the time which it will take to obtain advice and, most important for present purposes, the previous experience of the suspect with a solicitor . Over time it is anticipated that the take up rate of legal advice will increase to a significant level, to the extent that most persons will want some form of access to a lawyer prior to questioning. However, there are further developments.The effect of Dayanan
Although, in Article 6 terms, it might have been thought that the right of access to a lawyer can only have a bearing on trial fairness if such access were denied in advance of an interview, that does not appear to be the position. Dayanan is still only officially available in French. It concerned a person who had been arrested, advised of his right to remain silent and who had remained silent when questioned. Thus any infringement of Article 6 had no bearing on the suspect’s right to remain silent or not to incriminate himself, since he had said nothing. But the court said , under reference to Salduz, that in the context of Article 6 a suspect had the right to legal assistance once in custody . That right had to be afforded whether or not the suspect was to be questioned . The reasoning behind this was that, from the point of custody, the accused person needed to have access to the full range of services potentially providable by a lawyer. These include consultation, advance construction of any defence, the search for favourable evidence, preparation for any questioning, support for a person in distress and monitoring of the conditions of detention. The European Court is making it clear that anyone deprived of his/her liberty must have the opportunity of gaining access to a lawyer. There is some sense in that approach as a matter of logic or legal theory once the point of detention on reasonable suspicion is seen as the starting point of a trial. If a person has been arrested, he/she may wish to instruct immediate steps to demonstrate his/her innocence. These might include, for example, the ingathering of evidence to support an alibi or real evidence such as CCTV footage. The extent to which this is a problem in reality may be another matter. It does lay the system open to the comment that the police investigation of crime is being “hamstrung” by a series of “academic vetoes” which ignore the realities and practicalities of life . But it follows from the European Court’s jurisprudence that, to be Convention compliant, a suspect must have access to a lawyer even if he/she is not going to be questioned at all. This approach is consistent with the draft EU Directive on the right of access to a lawyer etc. which provides in Article 3 that suspects must be granted access to a lawyer “as soon as possible” and in any event not only before questioning but “from the outset of deprivation of liberty”. The suspect must be allowed to meet the solicitor, who can attend any interview, where he/she can ask questions or require clarification and make statements . The solicitor is entitled to check the conditions of the place of detention. The Directive may, of course, not be agreed, but it serves as a pointer to the way the law is developing.What this means is that any person in custody has the right of access to a lawyer. It is not dependent upon the occurrence of a police interview. This means, for example, that the intoxicated person lifted on a public disorder offence will have that right exercisable upon arrival at the police station. No doubt there are limits to what legal advice may be useful to him/her. But at the other end of the spectrum there is the person on the serious charge, whose defence may be imperilled if a solicitor is not quickly on the scene. But what is the European Court actually envisaging to be the role of the solicitor. It is wider than protecting his Article 6 rights and appears to extend not only to the protection of Article 3 or 5 rights but also to acting as the suspect’s morale support. But all of this too returns to the fundamental; that part of the trial is being moved from court room, where the judge exists to see that all is well and within the law, to the police station where that obligation is being thrust upon the solicitor, who has no immediate recourse to judicial intervention. Time and Money
There can be little doubt that full implementation of the implications of Cadder, its offspring and Dayanan will cost a significant amount of money. The exact extent of that cannot be calculated since it depends partly upon how suspects react. But it depends too on how the solicitors’ profession, or perhaps more accurately the individual agents, respond. There is a dilemma which needs to be faced, and which will be addressed in the Review. Under Article 5, a person may be deprived of his/her liberty on the basis of reasonable suspicion of having committed an offence. The purpose of doing that is to bring him/her before a competent legal authority; and that, in our system, means a judge . That person must be brought before a judge “promptly” . Detention of a person for longer than is reasonably required will be an infringement of his/her human rights. Futhermore, in order to protect the rights of others, not least victims , there requires to be an efficient and effective system for the investigation of crime. All of this means that any questioning of a suspect in advance of his appearance in court requires to be carried out quickly. It cannot be delayed unreasonably for the appearance of a solicitor of choice or, indeed, any solicitor. On the other hand, it may suit the solicitor, and indeed the client, to wait several hours before attending for consultation. But a suspect cannot waive his right to liberty and the system requires to balance the competing rights and interests. Within the context of the existing system, it is acknowledged that the police must be allowed to question suspects before taking a decision either to charge them or to hold them for appearance in court. This is, for the present, Convention compliant . But the suspect must be brought promptly before the court. In our system, that has for many years meant in the course of the next lawful day after arrest . Dayanan has dictated that a suspect must be given the right of access to a lawyer as soon as he is detained. Any combination of these principles is going to involve arranging for the suspect to have access to a solicitor as soon as is reasonably practicable after detention at the police station. This ought to mean, in urban areas, within a very few hours. What it does not mean is that access and questioning can be delayed until the solicitor’s office opens at 9 am on the next lawful day, especially if that day is 48 hours distant.The problem is that a rights based system cannot operate on a part time basis. Like all essential services, it must, to some degree, continue around the clock. The practical difficulty is that many persons suspected of crimes do not keep office hours. Quite the contrary, many seem to prefer night time and weekend working. Yet still, effective measures must be put in place to ensure that these persons are not deprived of their liberty unnecessarily or disproportionately. Conversely, it is recognised that innocent persons are arrested and detained, even if there was a reasonable suspicion jusifying that arrest in legal terms. About a third of persons detained are released without charge at the end of the detention period. It is particularly important that their release is not delayed because of the lack of availability of a lawyer to advise them overnight or at weekends.Although twenty four hour operation may not be too difficult for the police, the challenge for the solicitors’ profession is to ensure that it can also operate on that basis. There are of course very significant problems centred upon the financing of such a system. These present the Government, the profession and the public at large with real difficulties in an age of austerity. But the stark reality is that, if the state is to ensure that Article 5 and 6 rights are complied with, there must be solicitors available to provide advice on a 24 hour basis. This presupposes that there is a cadre of solicitors prepared to undertake that work. If there is not, the Government can have no option but to engage solicitors as employees or on contract specifically to carry out that work, with all the implications that such a set up would carry in terms of the independence of advice given. Of course, there are many solicitors, as there are general medical practitioners, who will simply decline to work unsocial hours. That is largely, although not exclusively, a matter for individual lifestyle choice. It has to be recognised that the bulk of the legally aided work may end up being done by the equivalent of locums. It is not work that carries an automatic appeal to the successful practitioner, who may seek to delegate it to others. Certainly, the experience in England appears to have been that the work devolved, to a substantial degree, upon para-legals. That may not happen in Scotland, but steps will have to be taken to ensure that the advice given is adequate. Of course, the problem does not stop at a point where the legal advice has been given. It does not stop at the end of questioning. The suspect still has to appear before the court. As was flagged up in the Consultation document, although four days between detention and appearance in court may be acceptable in Convention terms in cases involving suspected terrorist offences , few would regard that as acceptable for any summary offence or indeed any crime, other than, perhaps, one likely to be tried in the High Court. Even then, there would have to be some special reason to justify the elapse of such time before a person is brought “promptly” before the court. It was the Thomson Committee that recommended that Saturday be declared a “dies non” . Since then the courts have been operating almost exclusively on Monday to Friday basis. Perhaps even more problematical, it seems that the local procurator fiscal offices have also done so. This leads to significant delays in the commencement of custody courts on Mondays. The time for such a relaxed regime, which may suit the lawyers but is causing infringements of Article 5 and probably also Article 8 rights, may have gone. Training and the Future
What advice should be given to a suspect who has been detained in connection with a serious, or indeed a minor, crime. I assume that there is some training given to students on this topic, but confess that I have not seen any published material on the subject beyond the material from Justice , produced in response to the emergency legislation. But then, over many years of practice, I have not seen any papers in Scotland which provide reasoned advice on whether an accused should, or should not, give evidence at trial. It has hitherto been left very much to the discretion of the agent or counsel conducting the trial and hence dependant upon his/her personal or anecdotal experience. What are the factors to be considered in tendering advice on whether to speak to the police or to maintain a dignified silence?Of course it will depend upon what the law of evidence is. Will the corroboration requirement survive? Will adverse inference be introduced? Will sentencing discounts encompass admissions at interview? No doubt all of these matters, and others, will have a significant part to play. There are certainly divergent views on all of them at present. The advocate, used to the destructive effect of admissions in the trial process, may often caution silence as the wisest course. Under the present system, in the case of a serious offence for which the suspect is almost bound to be charged, no doubt that will often be correct. For the solicitor, with a wider experience of suspects and the knowledge that they are often released without charge after explaining their position, that will not always be the case. Whatever the final outcome of the Review may be in terms of legislation, the profession ought at least to consider devising a training manual dealing with the subject. If, as seems not unlikely, it may be the less experienced members of the profession who are to advise at the early stage of detention, it is encumbent on the more senior members to ensure that their junior colleagues have the benefit of their experience in the form of tools available to let them do the job effectively. One element in the training will be a consideration of the level of provision of information to the solicitor prior to any interview. At present there is no formal obligation on the police to provide any information beyond the bare bones of the nature of the charge and, perhaps, the general reason for any suspicion. No such obligation exists in England under PACE . But pre-interview briefings do seem to be becoming more popular in that jurisdiction, partly as a method whereby the suspect may be persuaded to respond at interview. This is no doubt part of the adverse inference equation. Just where this will all end up in Scotland is not immediately clear. PostscriptCan I end on this note. If, as the Convention jurisprudence directs, a criminal trial actually starts with the detention of the suspect, the push to have in place a disclosure regime, which would resemble that presently in place prior to the final trial diet, together with all the other protections available to the accused by the time he reaches the court room, may only just be beginning. If the trial, or at least a significant part of it, is moving slowly from the courtroom to the police station, as it seems to be, then we all have to think very carefully about exactly what form such a regime will ultimately take in the context of the tension between the adversarial and the inquisitorial modes of proof.6 September 2011 Lord Carloway
Exclusive events, CPD Seminars and great contacts
0141 420 6142