In 2012, the BBC reported that 867 criminal cases were abandoned in Scotland as a result of the UK Supreme Court’s judgment in Cadder (Peter) v. HM Advocate  UKSC 43. In Cadder, the UK Supreme Court found that a person detained must have access to a lawyer from the time of his first interview unless there are compelling reasons in the particular circumstances of the case that make the presence of a lawyer impracticable.
In a recent article published in the European Journal of Human Rights (Lord Drummond Young and Stephen Bailey, ‘Flexibility and Dialogue at Strasbourg: A Proposed Path for the UK’), the following argument was mounted:
In Cadder, the UK Supreme Court, deciding a Scottish criminal case, adopted an approach at odds with recent developments in Strasbourg. In the judgment of Lord Hope, in particular, an earlier decision of the Strasbourg Court, Salduz v. Turkey, was followed as if it were a decision of a national court; it was treated as laying down a binding rule of uniform application. Lord Hope purported to follow the statements made by the Strasbourg Court literally, without any adaptation for the context of the national law. The flexibility inherent in the [European Convention on Human Rights] was almost totally ignored….More significantly, Lord Hope’s judgment attempted to inject a level of prescription into the right to a fair trial that was simply lacking from Strasbourg’s jurisprudence. [The prescriptive approach in Cadder], unchecked, threatens to undermine the open-ended character of the fair trial guarantees under Article 6.
This post argues that subsequent Strasbourg case law, and the recent Grand Chamber’s judgment of 13 September 2016 in Ibrahim and Others v. United Kingdom, casts doubt on the approach adopted in Cadder and lends weight to the thesis that the Convention permits Member States to construct their criminal justice systems in accordance with their policy choices, so long as the application of national laws in individual cases respects, as a whole, the right of an individual to a fair trial.
The approach in Cadder
The background to Cadder is as follows. Under established Scottish procedures at the time, when a suspect was detained he had to be informed of the general nature of the offence that was suspected, and he was entitled to have intimation of his detention sent to a solicitor and to one other person. The relevant legislation provided that a person detained should be under no obligation to answer any question other than to give his name and address, date of birth, place of birth and nationality. In practice, before questioning began the suspect was informed that he was under no obligation to say anything and that any answers might be admissible as evidence in subsequent legal proceedings. Notably, the prosecution was not permitted to rely on any failure to say anything in support of the Crown case. At the end of the interview, or after six hours if that period expired first, the suspect had to be either formally charged with an offence or released. During questioning the suspect was not allowed access to a solicitor, and it was this feature of the procedure that was challenged in Cadder.
In Cadder, the UK Supreme Court found that a person detained must have access to a lawyer from the time of his first interview unless there are compelling reasons in the particular circumstances of the case that make the presence of a lawyer impracticable.
In Cadder, the UK Supreme Court held that this feature was irreconcilable with Article 6(1) and (3)(c) of the Convention.  It reached this conclusion after considering the case of Salduz in which the Strasbourg Court held:
“[T]hat in order for the right to a fair trial to remain sufficiently ‘practical and effective’…, Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6….The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.” 
However, the test in Salduz was put forward in the context of another, very different, form of criminal procedure. Turkish procedure is inquisitorial in nature and, significantly, the opportunity for a legal challenge to the accused’s police statement is limited. Nevertheless, the UK Supreme Court followed the test literally and uncritically without any attempt to engage with the fundamental underlying principle that the privilege against self-incrimination should be effectively maintained. Lord Hope stated:
“It has, of course, often been said by the Strasbourg court that it leaves to the contracting states the choice as to the means by which the manner of exercising the right to a fair trial is secured in their judicial systems….But there is no hint anywhere in [Salduz] that it had in mind that the question whether or not a detainee who was interrogated without access to a lawyer has had a fair trial will depend on the arrangements the particular jurisdiction has made, including any guarantees otherwise in place there. Distinctions of that kind would be entirely out of keeping with the Strasbourg court’s approach to problems posed by the Convention, which is to provide principled solutions that are universally applicable in all the contracting states. It aims to achieve a harmonious application of standards of protection throughout the Council of Europe area, not one dictated by national choices and preferences.”
Lord Hope went on to make the following statement…”that article 6(1) requires that, ‘as a rule’, access to a lawyer should be provided as from the first interrogation of a suspect must be understood as a statement of principle applicable everywhere in the Council of Europe area.” -
As exemplified by Ibrahim below, these statements appear fundamentally at odds with the general approach adopted in Strasbourg cases. The critical point in the modern Strasbourg approach is that uniformity is not required. The standards of protection afforded by national systems must be effective to secure the fundamental Article 6 rights, but, subject to this, national systems are given wide discretion as to how these rights are secured in practice.
The approach in Ibrahim
Facts and findings
Two weeks after the 7/7 bombings, the first three applicants (in addition to Mr Osman, who was not involved in the Strasbourg proceedings) detonated four bombs on three underground trains and a bus in London. However, due to an inadequate concentration of hydrogen peroxide, the bombs failed to explode. The four men fled the scene and a nationwide manhunt ensued.
Upon their arrest at the end of July 2005, the applicants were subjected to “safety interviews” under the Terrorism Act 2000. A “safety interview” can be conducted urgently for the purpose of protecting life and preventing serious damage to property, and, notably, it can be carried out in the absence of a solicitor. Throughout the course of the safety interviews, the applicants made various incriminating statements. At trial, the first three applicants argued that the admission of these statements would have such an adverse effect on the fairness of the proceedings that they ought to be excluded. A voir dire was conducted and the trial judge found that the statements could be admitted. On 9 July 2007, the first three applicants were unanimously convicted of conspiracy to murder and sentenced to life imprisonment with a minimum term of forty years. Leave to appeal against their convictions was rejected.
The fourth applicant, Mr Abdurahman, provided Mr Osman with shelter in his home after the bombs were detonated. Mr Abdurahman was initially questioned as a witness on 27 and 28 July, and, accordingly, he was neither cautioned nor informed of his right to legal advice. Notwithstanding, due to the statements made during his witness interview, Mr Abdurahman was arrested immediately thereafter. At trial, Mr Abdurahman applied to have the witness statement of 28 July excluded, arguing, in part, that the statement had been taken in breach of the applicable code of practice (in particular, because he had not been cautioned or informed of his entitlement to legal advice). The trial judge refused the application and Mr Abdurahman was subsequently convicted on 4 February 2008 and sentenced to a total of ten years’ imprisonment. On 21 November 2008, the Court of Appeal dismissed the fourth applicant’s appeal against conviction and partly allowed his appeal against sentence.
Applications were subsequently lodged at Strasbourg. The applicants alleged a violation of Article 6(1) and (3)(c) on the grounds that they had been interviewed by the police without access to a lawyer and that statements made in those interviews had been used at their trials.
The Grand Chamber found, by fifteen votes to two, that there had been no violation of Article 6(1) and (3)(c) in respect of the first three applicants. Conversely, by eleven votes to six, the Court found that there had been a violation of Article 6(1) and (3)(c) in respect of the fourth applicant.
The Grand Chamber stated that the test set out in Salduz for assessing whether a restriction on access to a lawyer is compatible with Article 6 is composed of two stages:
“In the first stage the Court must assess whether there were compelling reasons for the restriction. In the second stage, it must evaluate the prejudice caused to the rights of the defence by the restriction in the case in question. In other words, the Court must examine the impact of the restriction on the overall fairness of the proceedings and decide whether the proceedings as a whole were fair. This test has been cited and applied on numerous occasions by the Court.” 
The critical point in the modern Strasbourg approach is that uniformity is not required.
The Court then proceeded to consider the impact of the presence and absence of compelling reasons for restricting access to legal advice on the fairness of the trial as a whole. They stated that:
“Where compelling reasons are found to have been established, a holistic assessment of the entirety of the proceedings must be conducted to determine whether they were ‘fair’ for the purposes of Article 6 § 1…
Where there are no compelling reasons for restricting access to legal advice, the Court must apply a very strict scrutiny to its fairness assessment. The failure of the respondent Government to show compelling reasons weighs heavily in the balance when assessing the overall fairness of the trial and may tip the balance in favour of finding a breach of Article 6 §§ 1 and 3 (c)….The onus will be on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the trial was not irretrievably prejudiced by the restriction on access to legal advice.” (emphasis added). -
In short, the Court concluded that even where there are no compelling reasons, a restriction on access to legal advice may (not “is”) be so decisive as to enable a court to find that the overall fairness of the trial was irretrievably prejudiced. But the onus will be on a government to demonstrate the decisiveness of such a restriction. In reaching a position on the overall fairness of a trial, the Court also set out a number of additional factors to consider (drawn from its case law), including:
- the legal framework governing the pre-trial proceedings and the admissibility of evidence at trial; where an exclusionary rule applied, it is particularly unlikely that the proceedings as a whole would be considered unfair;
- the quality of the evidence and whether the circumstances in which it was obtained cast doubt on its reliability or accuracy, taking into account the degree and nature of any compulsion;
- the use to which the evidence was put, and in particular whether the evidence formed an integral or significant part of the probative evidence upon which the conviction was based, and the strength of the other evidence in the case; and
- other relevant procedural safeguards afforded by domestic law and practice. 
In this light, it might be argued that there are four reasons for considering that Scottish procedure at the time of Cadder was not unfair and was not irreconcilable with Article 6.
First, if the suspect refused to answer a question and the interview was led in evidence, the Crown could not found on the failure to answer. In such a case, the judge directed the jury that the accused was entitled to remain silent and that the jury could not draw any adverse inferences from the exercise of his right to silence. This was particularly significant because the Grand Chamber in Salduz stated its reasoning as follows:
“National laws may attach consequences to the attitude of an accused at the initial stages of police interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings. In such circumstances, Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation. However, this right has so far been considered capable of being subject to restrictions for good cause. The question, in each case, has therefore been whether the restriction was justified and, if so, whether, in the light of the entirety of the proceedings, it has not deprived the accused of a fair hearing…” 
The critical feature of Scots law was that it did not “attach consequences” to a failure to answer questions put by the police, and this was made clear at the outset of the interview. This aspect of Scottish procedure was largely ignored by Lord Hope, who summarised the first two sentences of paragraph 52 of Salduz, inaccurately, as stating that “article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer at the initial stages of police interrogation”.  This ignores both the opening words of paragraph 52, “[n]ational laws may attach consequences to the attitude of an accused at the initial stages of police interrogation” (emphasis added), and the significance of the consequences, or lack thereof, attached to the questioning in Scotland.
Second, in repeated decisions (with the leading case being Chalmers v. HM Advocate 1954 JC 66), the High Court of Justiciary had held that questioning during police interviews had to be fair; anything of the nature of interrogation or cross-examination would make the questioning unfair and would render the answers inadmissible in evidence. In practice, the Chalmers principle operated as a major restraint on police interviewing techniques in Scotland as well as the admissibility of the evidence obtained through interviews. It is an extraordinary feature of the judgments in Cadder that no reference was made to this important aspect of the decision in Chalmers (Chalmers is referred to at  and  but only as part of the historical background to the Scottish legislation and not as an important practical limitation on the admissibility of answers to police questioning).
Third, police interviews were invariably tape-recorded and, in recent years, recorded on video. Thus the fairness of an interview could be checked readily.
Fourth, under Scottish criminal procedure it is impossible to obtain a conviction on the sole basis of answers given in a police interview. For a conviction, Scots law requires that both the commission of a crime and the identity of the perpetrator should be established by corroborated evidence. Thus, in Scotland, the significance of the answers given in a police interview was inevitably limited. The requirement of corroboration was dismissed by Lord Hope as a countervailing feature on the basis that independent evidence, apart from the police interrogation, had existed in Salduz. With respect, although independent evidence existed in that case, there is no indication that the existence of such evidence, on the critical elements of the case, was an essential precondition of a conviction under Turkish law.
This totality of features arguably rendered the Scottish procedure generally compatible with Article 6. Of course, the UK Supreme Court was free to adopt a more liberal interpretation of Article 6 than Strasbourg. But if that is what Lord Hope was seeking to do, then that should have been made clear.
Joint partly dissenting, partly concurring opinion of Judges Sajó and Laffranque
The reasoning of the Court was attacked in the joint partly dissenting, partly concurring opinion of Judges Sajó and Laffranque. They argued that the approach of examining the impact of the restriction on the overall fairness of the proceedings and deciding whether the proceedings as a whole were fair is a watering-down of the protection afforded by Salduz. In their view, Salduz laid down an “absolute rule”: where incriminating statements made during a police interrogation without access to a lawyer (the presence or absence of compelling reasons is irrelevant) are used to secure a conviction, the prejudice to the defendant cannot be remedied: it is a clear breach of Article 6. ,  and 
However, it is arguable that even Judges Sajó and Laffranque did not go so far as to conclude that a failure to provide a lawyer without compelling reasons from the time of a detained person’s first interview will be irreconcilable with Article 6 in all circumstances, a view expressed by Lord Hope in Cadder at paragraphs 40, 41 and 48.
In their opinion, Judges Sajó and Laffranque stated that paragraph 55 of Salduz (detailed above) envisions three distinct scenarios, two of which are highly relevant for our analysis:
- access to a lawyer is not provided from the first interview where there are compelling reasons and incriminating statements are not used to secure a conviction; and
- access to a lawyer is not provided from the first interview without compelling reasons and incriminating statements are not used to secure a conviction.  and 
In assessing whether scenario (i) above gives rise to a breach of Article 6, they concluded that “[t]his can be detrimental for the overall fairness of the trial if it causes undue prejudice”.  In determining whether scenario (ii) above gives rise to a breach of Article 6, they found that “in these circumstances the negative impact on the overall fairness of the proceedings, and hence of the trial, will be logically weightier than that of the absence of a lawyer for compelling reasons”. (emphasis added). 
the Court’s approach to Article 6, in particular, and human rights, more generally, in Ibrahim is fundamentally sound.
In our view, use of the word “weightier” suggests that Judges Sajó and Laffranque were in fact engaging in an overall fairness assessment in circumstances where access to a lawyer is not provided from the first interview without compelling reasons and incriminating statements are not used to secure a conviction; it is only where access to a lawyer is not provided from the first interview and incriminating statements are used to secure a conviction that results in a clear breach of Article 6.
The way forward
It is suggested that the Court’s approach to Article 6, in particular, and human rights, more generally, in Ibrahim is fundamentally sound. There can be little doubt that human rights are universal. All humans are equal. As such, the rights they hold are the same regardless of the State or culture into which the individual happens to be born. This is the fundamental justification for the ideals expressed in the Universal Declaration of Human Rights, to which the Convention seeks “to take the first steps for the collective enforcement of certain of the rights”. Notwithstanding, it would be wrong to conclude that “universality” is synonymous with “uniformity”. Helpfully, paragraph 5 of the 1993 Vienna Declaration and Programme of Action provides as follows:
“…[A]ll human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.” (emphasis added).
The bold text should be taken to mean that human rights must be understood within their context. This does not amount to a denial of universality or a suggestion that States (in the context of the Convention) with a different historical and legal background are entitled to narrow the scope of the protected rights. Rather, at the level of application, States may give effect to human rights in different ways in light of their unique backgrounds. The fact that there is a human right to a fair trial, for instance, does not mean that Member States must adopt the same pre-trial procedure. Instead, Member States must ensure individuals receive a fair trial, however that is achieved. This is recognised by the Court in Ibrahim. It is not recognised in Cadder.
Stephen Bailey has taught law at the University of Cambridge and the University of Edinburgh. He has been involved in cases before the Permanent Court of Arbitration and the International Criminal Tribunal for the former Yugoslavia.
Courtney Grafton holds degrees from Yale University and the London School of Economics and Political Science. She has worked in public diplomacy at the U.S. Department of State and as a research assistant at the John M. Olin Centre for Law, Economics and Public Policy at Yale Law School.