As reported in the Law Society of Scotland's Journal Online on 8 March 2011, a judgment has been handed down in Perth Sheriff Court which provides clarification as to the extent of the Cadder judgment.
In this case, a policeman had asked a motorist whether or not he was prepared to take a breathaliser test at the roadside. He had not been given a chance to seek advice from his criminal defence solicitor.
Nevertheless, it was held that this was considered not to be a police interview for the purposes of the Cadder decision. In Cadder, the UK Supreme Court had held that police interviews, where the detainee had not been given access to a solicitor, amounted to a breach of the right to a fair trial under Article 6 of the ECHR.
Given that the breath test was considered not to be a police interview, it was irrelevant that the motorist did not have a right of access to a solicitor and, therefore, legal advice at the point of the breath test. Sheriff Summers noted in this case that the motorist had a "straightforward decision" to make in deciding whether or not to accept the breath test and, indeed, to refuse to take the test was itself an offence. The motorist's defence that the evidence obtained as a result of that breath test was inadmissible therefore failed and he was sentenced to a £900 fine and banned from driving for 12 months.
This case illustrates that the scope of the Cadder decision is becoming slightly narrower, although there still exist potential criminal defences based on police interviews conducted without the right of access to a solicitor. Almost 900 cases have be dropped entirely because of Cadder since October 2010. For further information, see our previous posts on Cadder:-
Lord Advocate to refer Five Cadder Cases to Supreme Court
Further Scottish criminal appeals may be heard by the UK Supreme Court
