Cadder Judgment
The next item of business is a statement by Kenny MacAskill on the Cadder judgment. The cabinet secretary will take questions at the end of his statement, so there should be no interruptions.
14:20
On 26 October 2010, the United Kingdom Supreme Court issued its decision in the case of Cadder v Her Majesty’s Advocate. The case considered the law and practice in Scotland of interviewing detained persons in a police station without ensuring that they had access to legal advice. The UK Supreme Court judgment overturned a previous unanimous ruling of the High Court of Justiciary in 2009 by seven of our most senior judges, including the Lord Justice General and the Lord Justice Clerk. The High Court of Justiciary had previously and repeatedly upheld the Scottish law, which was introduced by a Westminster Government in 1980 and which had not been altered by subsequent Administrations there or in this Parliament.
Throughout the process, the Scottish Government, the Crown Office and Procurator Fiscal Service and the police have acted to minimise the impact of a possible adverse decision by the UK Supreme Court. The Lord Advocate issued guidance to police in June 2010 in the wake of the UK Supreme Court hearing in the Cadder case. That precautionary measure was taken when it became clear that the UK Supreme Court was considering overturning previous judgments of the Scottish courts. That was the first point at which there was any clear indication from the courts that the Scottish system might be ruled not to be compliant with the European convention on human rights.
On the very same day as the judgment of the UK Supreme Court was issued, I introduced proposed emergency legislation to ensure the continued viability of Scotland’s criminal justice system and announced a judicially led review of the law and criminal procedure in Scotland. That review, led by Lord Carloway, is well under way.
The emergency legislation—the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010—was introduced as a bill following significant cross-party consultation and was passed with the support of the vast majority of members the following day. The act was necessary for three reasons. First, it enshrined in statute a suspect’s right of access to legal advice before and during interrogation. Our law now implements the court’s decision and that important right is articulated in statute, rather that in guidance from the Lord Advocate, which does not have the same force. Secondly, the act extends powers of detention to ensure that we maintain an effective system for investigating and prosecuting crime in the new environment. Thirdly, the act reinforces the need for finality and certainty in concluded cases, as articulated by the United Kingdom Supreme Court.
The UK Supreme Court decision emphasised the importance of finality and legal certainty in concluded criminal cases, but it affected cases in which an appeal had been made timeously or in which the relevant point had been taken during a case that was still live. The Government could not limit that through legislation. At the time of the judgment, the Crown Office and Procurator Fiscal service indicated that up to 3,500 live cases could be affected. The Crown Office has been working hard to find other ways in which to support cases that are affected by the ruling, such as looking at alternative sources of evidence.
Those actions, and the contingency measures that were taken previously, have been effective in that they have dramatically reduced to 867 the number of cases that are unable to proceed. That represents less than one quarter of the cases that were originally feared to be affected and a tiny percentage of the cases that our courts process each year.
In some solemn cases, the Crown has decided to discontinue proceedings in the meantime. Those cases are not closed and proceedings may be raised should additional evidence come to light in future.
I am acutely aware that that will be cold comfort to the victims, relatives and witnesses who are involved in the cases affected and I am particularly conscious that among those cases are some related to serious offences. I have no doubt that the victims will find it hard to understand how a case involving the very different Turkish justice system has had such a dramatic effect on Scots law, which already had strong protections for suspects through corroboration and the right to silence.
The loss of any proceedings on Cadder grounds is a matter of regret. However, I believe that the strong action that the Government has taken in the wake of the Cadder judgment means that we can maintain an effective system for the prosecution and investigation of crime and avoid many more victims being denied justice.
It remains a fact, however, that a court from beyond Scotland has imposed this change on us in a way that affects live cases. Scotland is uniquely susceptible to the effect of European convention on human rights challenges in criminal cases, because we are subject to the Human Rights Act 1998 and the effects of section 57(2) of the Scotland Act 1998.
Scotland does not have direct access to the European Court of Human Rights to defend its laws in the way that other criminal jurisdictions have. That is an anomaly that should be rectified, but that requires legislation on the part of Westminster. Traditionally, in criminal matters, the High Court of Justiciary had the final say, but the route of raising devolution issues that is concerned today is undermining its final authority. The UK Supreme Court has taken on a much greater role in criminal matters than was anticipated at the time of devolution. The Government’s view is that the centuries-old supremacy of the High Court of Justiciary as the final court of appeal in criminal matters must be restored.
As a matter of principle, I want to ensure that Scotland is in no worse a position than other jurisdictions in the UK and Europe, but this is a reserved issue that can be dealt with only at Westminster. The Advocate General has proposed changes for inclusion in the Scotland Bill, but they could make the situation worse. On 8 February, the Lord Advocate said to the Scotland Bill Committee:
“There is a real danger that we will have … a complete loss of identity for Scots law, unless the Supreme Court process is genuinely rarely exercised”.—[Official Report, Scotland Bill Committee, 8 February 2011; c 480.]
Within the constitutional framework that is afforded to us at this time, the Lord Advocate has been compelled to seek clarity from the UK Supreme Court on Cadder-related questions that have been raised in a number of criminal cases. She has asked the High Court of Justiciary to refer a further five cases to the UK Supreme Court for definitive resolution on a number of Cadder-related issues. That is necessary to minimise the uncertainty related to those further points.
In the period until those issues are resolved, we will continue to take action. The Association of Chief Police Officers in Scotland has issued guidance to forces on issues surrounding interviews at the locus as an interim measure until the law is clarified, and I know that those issues are also being considered by Lord Carloway.
It is expected that the court will consider these cases later this year and we will work closely with the Crown to ensure that it has any assistance that it requires. I stress at this point, however, that the issues are narrower than those in the Cadder judgment and are expected to affect a much smaller proportion of cases.
In the run-up to the decision of the UK Supreme Court, I sought to involve members on all sides in setting out the situation that we faced and the impact that it would have, and to engage as openly as possible in exploring how we would seek to minimise the effects of the decision.
The vast majority of the chamber supported our aims and our plans, and I hope that we can continue in that spirit, to preserve Scots law and protect our communities.
I thank the cabinet secretary for his statement. We are now beginning to have a clearer understanding of the impact of the Cadder judgment on hundreds of victims of crime. On 10 February, the Crown Office announced that 867 cases had been dropped, including nine High Court cases. However, we discovered on 20 February that dozens more cases have been jeopardised, with five test cases having been brought before the Supreme Court. When will the cabinet secretary be able to provide Parliament with a definitive number for the cases that have been affected?
We believed that it was right to support the emergency legislation, given the circumstances that we faced; however, now is the right time to ask what lessons must be learned and what might have been done to avoid the situation. Why did the cabinet secretary not act on the letter that was sent directly to him by the Glasgow Bar Association stating that it was clear that Scotland was no longer in compliance with European law a full year before the interim guidance was published by the Lord Advocate? Is it not the case that, although this was prior to the High Court of Justiciary’s judgment in the McLean case, that case was not an impediment to making the required changes? Surely, a precautionary approach would have been sensible and would have meant, potentially, that a number of cases that have now been dropped could have proceeded. What action is the Scottish Government taking to ensure that Scots law, more broadly, is compliant with the European convention on human rights so that the situation is not repeated in the future?
Richard Baker raises a variety of issues. First, with regard to the Glasgow Bar Association, I would not seek to be too hard on an agency of which I was once a member. I know that Mr Baker’s knowledge of Scots law is limited, but he conceded that the Glasgow Bar Association is not on the same level as the High Court of Justiciary. It is certainly not on the same level as a bench of seven judges including the Lord Justice General and the Lord Justice Clerk. With all respect to the members of the Glasgow Bar Association, the two most senior members of the legal profession in Scotland are the Lord Justice General and the Lord Justice Clerk. It would be ill fitting for any politician—certainly, for a Cabinet Secretary for Justice—to seek to undermine a decision of a court of seven judges in Scotland that had decided that there was no incompatibility, even if Mr Baker and some members of the Glasgow Bar Association think differently.
The sons of Cadder cases are a moveable feast, to some extent. The issue was raised by Lord Hope in his judgment on various matters including interviews at crime scenes. Reference has been made to matters such as how police deal with admissions being made when cases are being investigated—a circumstance that will arise on a regular if not a daily basis. That is why I mentioned in my statement that ACPOS and the Crown Office are taking action. Such matters need to be clarified and we need some greater definition by the courts. That point was raised by Lord Hope and has been supported by the judiciary here. As I say, the Crown Office asked the bench in Scotland to refer the matter, and it will also be considered by Lord Carloway. We will be more than happy to try to keep members abreast of the number of cases, but they are with the Crown Office and the number will vary.
What lesson is to be learned? It is that, when we have a Parliament that has served us well for more than a decade and a legal system that has served us well for centuries, it is ill fitting for the law of Scotland to be turned on its head—with, in many instances, the approval of many judicial commentators outside the chamber, and not for the better—by a decision relating to a case from Turkey dealing with terrorism, which is not applicable to matters in the case of Cadder v Her Majesty’s Advocate. The lesson to be learned is that the Parliament must have the powers and our judicial system the ability to decide with certainty. The High Court of Justiciary should be the final court of appeal in criminal cases, as was always intended, and matters that are before the Parliament should not be second-guessed by an unelected body, whether it is the UK Supreme Court in London or the European Court of Human Rights in Strasbourg.
Some members have not pressed their request-to-speak buttons—I remind them to do so now. I ask for short questions and shorter answers from the cabinet secretary; otherwise, half the members who want to speak will be unable to do so.
I thank the cabinet secretary for the advance copy of his statement. It is clear that the Cadder judgment is having a devastating effect on the Scottish justice system. Our conviction rate will undoubtedly suffer, as self-confessed criminals are being allowed to walk free. That comes at a high cost not only to the public purse but to the balance of the Scottish criminal justice system, which is now heavily tipped in the criminal’s favour.
The change was inevitable because the previous Labour Government at Westminster incorporated the ECHR in the Scotland Act 1998, which the Scottish National Party whole-heartedly supported. Does the cabinet secretary regret the SNP’s full support for incorporating the ECHR in the 1998 act? Given that we need to wrestle back control of the justice systems throughout the United Kingdom to both of Scotland’s Parliaments, will the minister support a review of the ECHR’s whole operation?
I have had meetings with Ken Clarke. A variety of issues is involved. We as a Government accept that Scotland is in an anomalous position in relation not simply to other jurisdictions in the United Kingdom but to other countries. France and Ireland are affected by Salduz, but they have not had to rush to pass emergency legislation. Something is far wrong, and we must change that.
We are committed to the ECHR’s principles and tenets, but we have much sympathy with the reasonable points that Ken Clarke has made. Greater understanding is required and Governments must have opportunities to deal with matters.
We are more than happy to work with the UK Administration, the Lord Chancellor and agencies south of the border to try to ensure that the ECHR deals with clear problems. Not even those who face terrorism charges should be subject to abuse or whatever else, as was clearly intended in the case of Salduz. However, when the ECHR impinges on matters such that victims are treated almost with contempt, it is clear that something is wrong.
We are working with Ken Clarke to develop a more pan-European position—he does not suggest withdrawing from the ECHR; quite the contrary—but Scotland should in the interim have as a minimum the same rights as the Governments south of the border and elsewhere in Europe have.
If 867 cases—some of which are very serious—cannot be prosecuted, that is a great public concern. However, the cabinet secretary seems to be in denial about the fact that Scots law went off at a tangent on the interrogation of suspects that was out of line with widely accepted international justice standards. He has a huge problem with decisions on such matters by the UK Supreme Court, which involves two Scottish judges, but no problem with the European Court of Human Rights, which has no Scottish judges.
The cabinet secretary suggested in his statement that the European court might have reached a different decision. Does the Government now accept that the Cadder case was decided rightly? If not, what is it doing about that? Has it asked the Committee of Ministers to request an advisory opinion from the European court?
I understand that, in the lead-up to the earlier McLean case in the High Court, a precautionary approach to admission evidence was taken. However, that was subsequently abandoned. Does the current problem of the 867 cases arise mostly from the later period between the McLean decision in October 2009 and the issue of the Lord Advocate’s new guidance in June and July 2010?
A strong view in legal circles is that the problem is not Cadder but the overreliance by the police and the Crown on admission evidence. Does the cabinet secretary agree?
Robert Brown raises three matters. Given the unique position of Scotland’s law, it is manifestly wrong that the Scottish Government does not have even the right to be represented at the European court. That is a fundamental problem. Given our distinctive legal system, which has evolved over centuries, it cannot be right that we cannot be present at decisions. My Government colleagues and I will continue discussions with the Advocate General for Scotland, but we have expressed our view, as I said.
Mr Brown will be well aware that guidance is issued by the Lord Advocate and not at my behest. I have no right to interfere with an independent and impartial Lord Advocate. The day that a Cabinet Secretary for Justice seeks to interfere with the workings of the Lord Advocate, we will have cause for concern.
When the Lord Advocate issued guidance not in 2009 but in 2010, I received representations from solicitors and bar associations that thought that she had gone too far and which wanted the guidance to apply not to summary cases but only to solemn matters. However, the Lord Advocate has been shown to have acted appropriately and wisely, for which we owe her a debt of gratitude.
At the end of the day, I cannot comment on Cadder as it is still a live matter. The fundamental position is this: human rights are a matter of balance. Everyone accepts that people have a right not to be mistreated; the Scottish court system provides for that. My position is to stand behind measures and manners, and individuals—not just the High Court of Justiciary with its seven judges, but eminent Queen’s counsel, whether Paul McBride or others.
Within the Scottish legal system, we had not only a requirement for corroboration, but tape-recorded and videoed admissions. This was not a case, as in Turkey, of a 16-year-old being tried on terrorism charges. Nonetheless, the result is that many men who have been charged with serious sexual offences are making it much more difficult for the Crown to bring a prosecution and for victims of crime to receive justice. That I regret. I make no apology for regretting that, or for saying that we acted as we had to. I wish that we had not had to. If only the UK Supreme Court had stuck by the law of Scotland and not overturned hundreds of years of Scots law.
We move to open questions. Members will have to put a question, not a preamble and a question.
Does the cabinet secretary share my view that, if we are to protect Scottish jurisprudence, we need to have decisions that are made by Scottish judges in Scotland?
Absolutely. As I mentioned, the clear fact is that the UK Supreme Court is getting by the back door matters relating to the criminal law of Scotland that it was never anticipated it would deal with. The majority of its judges have no concept of Scots law. Our law, particularly our criminal law, is unique—it is vastly different, particularly given corroboration.
However, we are where we are. Until such time as Scots law is settled by Scottish judges, we will face significant problems.
When we passed the emergency legislation in October, the financial memorandum set out that the bill would cost £30 million and require 500 police officers to support the arrangement. Does the cabinet secretary agree that the actions of this SNP Administration not only allow criminals to go unpunished but take police officers off the street, thereby undermining public safety?
The principal point relates to money. As we made clear at the time, the increased costs to the legal aid budget would not come out of budgets such as health or education, or from those that deal with the problem of domestic violence, including obtaining interdicts against those who perpetrate the problems that we face in Scotland. I hope that Mr Kelly supports the Government in biting the bullet, which includes reducing some fees to deal with the problems and consequences of the actions of a UK Supreme Court in London.
How many suspects have been detained for 12 or 24 hours under the new powers of detention that the cabinet secretary forced through Parliament last year without proper scrutiny?
I do not have the precise number, but the number of people who have been detained beyond the 12 hours has been very few. As Mr Rumbles well knows, these matters are significantly smaller than those in England under a jurisdiction—
How many?
Recently, I received a letter from the United Kingdom Government, in which the Liberal Democrats are a partner, that asked the Scottish Government to make legislative changes in cases relating to HM Revenue and Customs and HM Customs and Excise to allow for 12 hours and the extension—[Interruption.] The Liberal Democrats south of the border may yet again take a different view from their colleagues in Scotland. The Government in Scotland—
He has not got a clue.
Mr Rumbles.
We will accede to the request of the Government south of the border. If Mr Rumbles disagrees with that, he should take up the matter with his ministerial colleagues in England.
On a point of order, Presiding Officer. I asked a simple, factual question on how many people had been detained. The minister refuses to answer.
That is not a point of order, Mr Rumbles. If you read the Official Report, you will find that the minister first said that he did not have the numbers.
Will the cabinet secretary put into context the impact of the Cadder decision on the 867 cases? He said that we are talking about a relatively small percentage. Can he say what that is? Does he share my view that the scaremongering and stoking of fear by some members on how widespread the cases are is unhelpful to the Crown Office and our justice system?
Because of the prescient actions by the Lord Advocate, the numbers were restricted initially, it was thought, to 3,500 and then to 867. That is a very small percentage of the number of cases dealt with annually by the Crown—it is probably in the region of 1 per cent or so. On the level of severity, there is no denying that some of the cases—some have been publicised—are deeply traumatic to the individual. They are matters of great concern, which is why we opposed this in the first instance. Equally, even crimes that might be viewed as less serious can still be of great seriousness to the individual affected by them.
I can be of assistance to Mr Maxwell in saying that the Crown has been liaising with victims as a consequence of this, in order to do its utmost to ensure that victims are appraised of why things are happening and whether the options can be kept open—whether additional evidence can be provided—and to seek to assuage their understandable anger and discomfort.
The cabinet secretary has advised us that the number of cases unable to proceed stands at 867—867 cases in which charges have been dropped, some very serious and all involving victims and witnesses. How were victims and witnesses notified? How many cases has the Crown decided to discontinue meantime? How many dropped cases were from each Scottish parliamentary constituency?
The answer is that I cannot provide that information. That is information relative only to the Crown. I have no doubt that the Crown would be more than happy to provide it, so if Ms Craigie wants to write to me, I will happily pass on the letter to the Lord Advocate.
As I said to Stewart Maxwell, the Crown is conscious that even cases that are perhaps not the most severe can cause great distress, not just to the victim of the crime but to those who were due to give evidence on the offending. The Crown is going above and beyond its normal measures to ensure that people understand and are told what might be possible to try to deal with matters.
I am sure that the Crown will do its best to try to provide the drill-down details that Ms Craigie seeks.
If as a result of Cadder the police cannot ask simple questions at the locus of an incident, is the cabinet secretary not concerned that they will have to take many more people into custody, thereby creating a potentially greater impact on individuals’ human rights?
That is a valid point and it is part of the reason why the Lord Advocate has acted appropriately and sought to have these son of Cadder matters removed. As an official said to me earlier, we cannot have a position where an officer turns up at a scene—perhaps a road traffic accident—and before they investigate and call for an ambulance, they ensure that a lawyer is present. Unfortunately, the position taken by some in the legal profession would seem to drive us towards that, but it will not be countenanced.
When Parliament passed the emergency legislation after the Cadder judgment, the cabinet secretary quite rightly said that he would keep Parliament fully informed. I welcome his statement today. How does he intend to keep Parliament fully informed on future developments regarding this extremely serious matter, which he said himself is a bit of a moveable feast and which is causing some alarm out in the country?
That is a perfectly valid question. I am happy to say that I am obviously here to appraise the chamber. Equally, I think that I am due to appear before the Justice Committee in less than a fortnight—Mr Butler, as the deputy convener, will keep me aware of that. That is what we are doing to keep both the Parliament and the committee appraised.
Was it anticipated that the High Court of Justiciary would be overruled by the UK Supreme Court when we signed up for it? I commend the suggestion made by the Conservative party about a review of the ECHR.
I do not think that it was anticipated that the High Court would be in this position. It has been the devolution minutes that have resulted in the Supreme Court dealing with criminal matters that it was not anticipated would go there. There is a fundamental point relating to the nature of Scotland within the constitutional framework of the United Kingdom.
As I said in response to Mr Lamont, I think that most right-minded people thought that the views of Ken Clarke were perfectly reasonable and balanced. He is not seeking to withdraw from ECHR, but there has to be a review to ensure that Governments and legislative matters elsewhere have that opportunity. I am more than happy to seek to co-operate with Ken Clarke on that, but I believe that in the interim we must ensure that the Scottish Parliament, the Scottish Government and the Scottish legal system have the same rights and protections that the United Kingdom Government, Parliament and system have at present.