Cadder v Her Majesty’s Advocate
On the 24th May the Supreme Court started to hear the devolution appeal from Scotland,as to whether or not there is a right to access a solicitor whilst being detained in a police station.
JUSTICE have being given permission to intervene on this important matter.
The right to access legal advice is a right that has always been regarded as fundamental in English and Wales, but as JUSTICE note, not entirely in Scotland. The law in England and Wales places a great emphasis on being allowed to access a lawyer and consult with them in private, see s 58 of the Police and Criminal Evidence Act 1984(PACE). The remedies available for a breach of s 58, may include exclusion of evidence under s 78 or 76 of PACE.
The common law also supports a strong right to access a solicitor within a reasonable amount of time see R v Chief Constable of South Wales, ex parte Merrick [1994] 1 WLR 663.
The Cadder case will ultimately involve the difference between English and Scots Law, but also the extent to which the right of access to a lawyer is embedded in the European Court of Human Rights case law.
There have been a string of cases that have all firmly been of the view that denial of access to a lawyer during the investigatory stages of the proceedings will lead to a breach of Art 6(1), 6(3)(b) and 6(3)(c). See Magee v United Kingdom, Murray v United Kindom, Brennan v United Kingdom and most recently the decision of the Grand Chamber in Salduz v Turkey.
Though whilst I am not an expert on Scots criminal Law, it will be interesting to see whether the Supreme Court believes that the Scottish courts have fallen foul of the European Convention. In 2009 the House of Lords in Re McE set out the limits to s 58 and the common law right to access a lawyer, with good coverage (albeit perhaps not the best interpretation) of the European Jurisprudence on this point.
Watch this space.
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