Cadder and beyond : suspects' rights and the public interest

McDiarmid, Claire; Duff, Peter and Ferguson, Pamela R., eds. (2017) Cadder and beyond : suspects' rights and the public interest. In: Scottish Criminal Evidence Law. Edinburgh University Press, Edinburgh, pp. 18-40. ISBN 9781474414760

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The case of Cadder v HM Advocate in 2010 had an instant and seismic effect on Scottish criminal legal practice in a way that few other cases have ever had: emergency legislation had to be passed and was brought into force four days after the judgment; ultimately more than 850 prosecutions had to be abandoned. Cadder determined that the treatment of suspects in criminal offences, at the initial police interview stage in Scotland, was not adequate to ensure their right to a fair trial under Article 6 of the European Convention on Human Rights. As well as these unprecedented practical reverberations, the case generated considerable academic discussion around the merits of the Supreme Court’s decision. This piece moves beyond that discussion, concerning itself particularly with the balance of the rights of suspects with victims’ interests, and the relationship to the public interest which takes account of both. The chapter is principally concerned with the point in the criminal process when suspicion begins to crystallise around an individual or, in other words, when s/he begins to make the shift from witness to suspect in the eyes of the police. It will, initially, briefly outline the facts of Cadder. It will then consider, from a rights perspective, the status of ‘detention’ which was the subject of the Supreme Court’s criticism, its history and development and its perceived shortcomings, which are at the heart of the decision. From there it will examine post-Cadder litigation, including the so-called ‘sons of Cadder’ taking into account the regime for provision of legal assistance to suspects, waiver of the right to legal representation generally when making a statement to the police, confession evidence and the so-called “fruit of the poisonous tree” all within the overarching rights framework. Overall, the chapter addresses the question of whether the Scottish criminal justice system has now sufficiently addressed the Cadder criticisms taking account of both the legal principles in the (new) Criminal Justice (Scotland) Act 2016 and the ethos and spirit of the human rights- based culture from which it emanated.1