The Lord Advocate is to refer five cases to the UK Supreme Court for a further ruling as to the scope of the Cadder v HMA decision which was handed down by last October by the Supreme Court.
Exercising her power under Schedule 6 to the Scotland Act 1998, the Lord Advocate Elish Angiolini QC is to ask the High Court referring the five cases in order to clarify the scope of Cadder v HMA. Cadder was a landmark case for criminal law in Scotland with a significant impact on criminal defence lawyers in Edinburgh and elsewhere in Scotland. The seven judge bench at the Supreme Court held in 2010 that the practice of detaining and interviewing a suspect without immediate access to a solicitor constitutes a breach of the right to a fair trial under Article 6 of the European Convention on Human Rights. Since then, there have been at least 867 prosecutions which have been unable to proceed as a direct result of Cadder, the Crown Office and Procurator Fiscal Service ("COPFS") announced.
The referral of the five cases to the Supreme Court is aimed at clarifying the scope of the Cadder ruling, including whether incriminating statements made by a detained suspect against a co-accused are still inadmissible as evidence and whether information is inadmissible if it is given during roadside interview where the incident relates to a non-road traffic law matter.
Despite almost 900 cases having been dropped by the Crown as a direct result of Cadder and with many more potentially being unable to proceed to trial, the Supreme Court's clarification is not to be expected until at least October 2011, several months after Elish Angiolini QC will have stepped down as the Lord Advocate.