Hma v cadder
At around 14.30 hours on 13 May 2007 the appellant was detained by the police at his home in Glasgow under section 14(1) of the 1995 Act following an incident in which Liam Tracey and his father John Tracey had been attacked by a group of youths.For over a year, the Scottish Government, Crown Office, Scottish Legal Aid Board (SLAB), ACPOS and the Scottish Court Service have been preparing contingency plans to deal with all possible eventualities arising from this case.It is hard to see how, under this statutory regime, there can be any room for limiting the effect of that decision by holding that it is not to have retrospective effect.
By letter dated 27 November 2009 the Depute Clerk of Justiciary informed the appellant that his appeal had been considered by three judges at the second sift stage, and that it also had been refused.The judges also said their ruling was not entirely retrospective, and left the Scottish Criminal Cases Review Commission to determine if closed cases may be referred back to the High Court: This decision does not permit closed cases to be re-opened.Therefore, by the time the 1887 Act was passed, the reality was that police officers, rather than the sheriff and his procurator fiscal, had come to shoulder the main burden of investigating offences, though they worked under the supervision of the local procurator fiscal.That would, however, be to adopt an extreme version of the accepted doctrine that courts declare not only what the law is, but what it has always been.
Ramblings of a Scottish Student Episode 1 : Alistair SloanBut there is no room, in the situation which confronts this court, for a decision that favours the status quo simply on grounds of expediency.Study online flashcards and notes for CRIMINAL LAW CASES including Hogg v. Cadder v HMA 2011 -Right to a lawyer.Cadder (G23) (pronounced Cawder) is a council housing scheme in the district of Maryhill, Glasgow, Scotland.Following from my recent blogs on US and Scottish approach to searches of mobile phones, I noted the case of R. v. Vu, 2013 SCC 60 from the Canadian Supreme Court.
If he was committed, the papers would be sent to Crown Office for Crown counsel to decide whether proceedings should be taken.The Lord Advocate did not seek to rely on the exception provided by subsection (2)(a) of section 6.No description by Cormac Mac Amhlaigh on 18 November 2014 Tweet. HMA v. McLean 2010 Cadder v.
The issue is one of law, as the court appreciated in McLean.But, again, this had no effect on the countless completed cases where convictions had been obtained on the basis of evidence of such statements by the accused which judges had admitted in evidence without going through that procedure.It therefore eliminates many of the doubts that used to surround police questioning but it does nothing to diminish the fact that the questioning takes place without the suspect having any right to legal advice as to whether he should say anything at all and, if so, how far he should go.
There is perhaps an indication here that the primary concern of the Grand Chamber was to eliminate the risk of ill-treatment or other forms of physical or psychological pressure as a means of coercing the detainee to incriminate himself.Now, sadly, 30 years on the Scottish criminal justice system must reap the consequences.Reports in the media since the hearing indicate that further steps are being taken by various groups in anticipation of a change.
But I have come to the conclusion that the statutory regime that applies to this case precludes our doing so.It will be for the appeal court to decide what course it ought to take if a reference were to be made to it on those grounds by the Commission.At p 225 Lord Macfadyen said that the cases of Murray and Averill were clearly distinguishable, as the appellant had been cautioned, clearly understood the caution and declined, for the most part, to answer the questions that were put to her.But, as I have already observed, there is no indication anywhere in its judgment that it was its intention to do so.There are far too many for them all to be mentioned in this judgment.It is the particular circumstances of the case, not other guarantees that are available in the jurisdiction generally, that will justify such a restriction.The complainer Liam Tracey identified the image of the appellant as that of his assailant.This, for the reasons I have given, was a misconception of the effect of what the sifting judges had done.On 29 May 2009 the appellant was convicted on all charges and on 26 June 2009 he was sentenced to 250 hours Community Service.
In Salduz v Turkey (2008) 49 EHRR 421 the Grand Chamber of the European Court of Human Rights unanimously held that there had been a violation of Articles 6(1) and 6(3)(c) ECHR because Salduz had not had the benefit of legal advice when he was in police custody.To do so would render a legal system uncertain, incoherent and dysfunctional.His confession was decisive for the prospects of his defence and constituted a significant element on which his conviction was based.It would help to defeat the ends of justice if what the person so questioned said in answer to ordinary and legitimate questions were not admissible in evidence against him.
The views of the judges fluctuated considerably over a long period.It is, indeed, quite common for those who have been arrested to decide to make a voluntary statement to the police and not to exercise their right to obtain legal advice before doing so.There is room for a restriction of the right of access to a solicitor during the police interrogation, but only if there are compelling reasons in the light of the particular circumstances of the case which make the presence of a solicitor impracticable.The rights of the detainee were to take second place to the public interest in allowing the police to question him without being deflected from their task by the presence of a solicitor.The application for special leave to appeal on issues 6 and 7 is refused.For example, a modern recording of a police interview shows how it was conducted, what answers the suspect gave and what his attitude was.But, assuming that the suspect stayed to be questioned, were his answers admissible in evidence against him.
Any advice he had to give would be given prior to the interview commencing.In accordance with section 14(6) he was informed that he was being detained on suspicion of serious assault, and he was cautioned in accordance with section 14(9).Respondent Elish Angiolini QC, the Lord Advocate W James Wolffe QC Simon Collins Gordon Balfour (Instructed by The Crown Agent).This was because she was giving effect to provisions in sections 14 and 15 of the 1995 Act which could not be read or given effect in a way that was compatible with them.