Scotland’s Crown Office has claimed that precautionary measures taken by the Crown after a review of the impact of the Supreme Court’s ruling in the case of Cadder (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) (pdf) have “significantly reduced” the impact on prosecutions in Scotland although as the COPFS review reveals, the figures of case failures due to the Cadder ruling are high.
The review of cases since the Cadder judgment has identified that 867 cases either could not proceed or could not continue to proceed as a direct result of Cadder. This is equivalent to 0.3% of all the criminal cases reported to COPFS in a year.
A total of 60 solemn cases – 9 High Court cases and 51 Sheriff and Jury cases – have been discontinued. This includes 5 High Court cases and 6 Sheriff and Jury which have been marked no further action meantime; this means that the cases will be kept under review, and the Crown reserves the right to re-raise proceedings in the future, should further evidence come to light.
Scottish Law Reporter’s coverage of Cadder v HMA can be found HERE
Crown Office Press Release follows :
A review of the impact of the Supreme Court’s ruling in Cadder v HMA has shown that precautionary measures taken by the Crown significantly reduced the impact on prosecutions.
At the time of the ruling in October 2010, COPFS estimated that there were 3471 cases where the issue of the admissibility of evidence from police interviews had been raised by the defence.
COPFS has now completed an analysis of the impact of Cadder in the three months since the judgment. During this time, a total of 867 cases could not proceed or could not continue as a direct result of Cadder. The vast majority of cases affected were summary prosecutions.
Solemn cases – involving the most serious crime – were prioritised as part of the Cadder review. Nine High Court cases and 51 Sheriff and Jury cases have not been able to continue as a result of Cadder. In addition, 3 summary appeals have been conceded by the Crown.
Scott Pattison, Director of Operations, Crown Office, said today that the impact of the judgment was reduced by precautionary measures taken by the Crown.
“The Lord Advocate issued guidance to prosecutors and police well in advance of the Cadder decision, and this meant we were able to adapt and reduce the risk to live cases.
“Since the ruling in October, we have been reviewing the impact of the Supreme Court’s judgment, prioritising the most serious crime. There has been extensive liaison between Procurators Fiscal and the police to thoroughly explore the impact of the Cadder decision on the available evidence and any potential lines of further enquiry.
“Each case was then carefully considered by Crown Counsel before any conclusion was reached that no further evidence was available, and the case required to be discontinued as a result of Cadder.
“In some solemn cases, we have decided to discontinue proceedings meantime - these cases are not closed and will be kept under review, so proceedings may be raised should additional evidence come to light in the future.”
He added: “No decision to discontinue ongoing proceedings has been taken lightly. It is a matter of regret that any case has not been able to continue to proceed as a result of the Cadder ruling, and we recognise the distress that will have caused to some victims and families. Procurators Fiscal liaised with victims to advise them of the decisions to discontinue proceedings.
“We want the public to have confidence that everything possible will be done to safeguard the integrity of prosecutions.”
On 26 October 2010, the Supreme Court issued its decision in the case of Cadder v HMA, in which it considered the law and practice under section 14 of the Criminal Procedure (Scotland) Act 1995 of police interviewing detained persons in a police station without allowing them access to legal advice. The Court decided that this practice was incompatible with the European Convention on Human Rights. The ruling was not retrospective and did not apply to closed cases, limiting the impact to pending prosecutions and ongoing appeals.
At the time of the Supreme Court’s ruling, the Crown estimated that there were 3471 cases where admissibility of evidence given in police detention without access to legal advice had been raised as an issue. This figure was based on the number of devolution minutes lodged with the Advocate General’s office. The figure will now include: closed cases, cases where the point is no longer relevant as the admission was not essential to the Crown case, or the Crown was able to proceed on the basis of other admissible evidence, or additional strands of evidence, and cases where evidence from police detention is admissible because legal representation was provided in accordance with the Lord Advocate’s guidelines.