Cadder and common law fairness
Despite the influence of the Cadder decision, there are still situations where common law fairness comes to the aid of the accused
There has been a huge amount of activity in the past three years or so on police interviews or interviews of suspects under caution by the authorities. The most notable case, in essence the Roe v Wade of these, is, of course, Cadder v HM Advocate  UKSC 43, which has led to a whole new system in police stations of how suspects are dealt with prior to interview. They must now be offered access to a solicitor, which in some circumstances will be in person, and in others by telephone. If the suspect waives his right to a solicitor, that is now recorded and the interview proceeds: the important issue is the access being offered in the first instance.
Since Cadder, there have been cases referred to as the “sons of Cadder”, which have included McGowan v B  UKSC 54, Jude v HM Advocate 2012 SC (UKSC) 222, and Ambrose v Harris  UKSC 43, all of which have sought to clarify the tangential issues which Cadder created, including roadside interviews and the enforceability of a waiver. There will probably still continue to be arguments on these ECHR issues, as we have seen since 1998, but a recent case of our firm’s, which started as a devolution minute on article 6 human rights arguments, essentially came full circle to a good old-fashioned argument on fairness at trial. It ended last month with a successful challenge to an interview under caution both at trial and then upheld in the appeal court. The case was Procurator Fiscal, Forfar v Smith  HCJAC 166.
Failure to inform
The accused, a gamekeeper, was charged with three offences under the Wildlife and Countryside Act 1981, all relating to the use of a large crow cage style trap which can only be used if certain rules are followed. The case was investigated by a wildlife detective and the SSPCA, who suspected Mr Smith of committing the alleged breaches of the operation of the trap. They cautioned him, offered him access to a lawyer (even though the interview was at the roadside), and asked him questions which were pertinent to the trap. All good, it would appear, and certainly, in light of Ambrose, would appear to override any article 6 concerns.
What they failed to do, however, was to advise the accused (as he became) that he was a suspect, or even what he was suspected of doing. They did not inform him what was wrong with the trap. Furthermore, they did not advise him that he could stop the interview or take a break to seek advice in the course of the interview. At trial, we argued that those failings meant that the accused had been treated unfairly and that the responses given were inadmissible.
The court held the interview to be unfair and also that his waiver was not “informed, voluntary and unequivocal”, because he had not been made aware of the implications of the interview before he voluntarily engaged with the officers concerned. The court acquitted the accused and the Crown appealed.
We did not move the devolution minute at trial, which had been drafted post-Cadder but pre-Ambrose. The fact that this was a roadside interview all but removed the human rights arguments, but left a common law fairness argument, with article 6 features, and in particular the question of the waiver. The court held that the waiver could not be treated as informed if the suspect had no idea that he was a suspect, what the alleged offence was, or that he might ultimately face a criminal charge. The caution told him that he need not answer questions, and what would happen if he did: but that was all.
Furthermore, the accused’s failure to accept a lawyer being based on an uninformed decision meant that what was essentially a Cadder issue was fundamentally an issue of fairness for the court to consider. It was not simply the lack of information given to the accused, but the failure to advise him that he could change direction midstream that was held to infringe his rights as a suspect. Further considerations included the fact that both were in plain clothes and in an unmarked car.
The court described the interview as having “all the appearances (initially) of a ‘constructive chat’.... Had the respondent been advised that he was a primary suspect, and that he might be prosecuted for offences in connection with the cage, he might well have wished to have legal assistance. The question of fairness is ultimately one of fact and degree, to be assessed by the judge at first instance: McClory v MacInnes 1992 SLT 501.”
Back to basics
While the introduction of the Human Rights Convention has no doubt rewritten the rules on police interviews, particularly those in police stations, this case reinforces two basic fundamental issues:
David McKie is a partner of Levy and McRae and is solicitor to the Scottish Gamekeepers’ Association
- that a suspect ought to be told that they are a suspect and what they are suspected of, in order that they can make an informed and voluntary decision on whether to seek advice, or on how to answer the questions; and
- that every case will still turn on its own facts, and what may seem to be innocuous factors may, when added together or to a more fundamental irregularity, render the whole interview inadmissible.