THE DECISION IN CADDER: THE IMMEDIATE IMPLICATIONS
Cases in respect of which leave to appeal was refused
In a significant number of cases leave to appeal was refused both before the decision in McLean and after it was announced in October 2009. It is open to those appellants to make an application to the SCCRC to review their cases. However that is not the only mechanism which should be considered. In each instance in refusing leave to appeal the High Court has determined a devolution issue thus opening the prospect of seeking permission to appeal to the Supreme Court.
In Cadder Lord Hope made the following observations on the subject:
12. As I said in para 16 of McDonald, the word “determination” in para 13 of
Schedule 6 to the Scotland Act 1998 can include any decision which disposes of
the issue in the lower court, including a refusal to consider the issue. I do not think
that it would be right to say that the judges who conducted the second sift refused
to consider the devolution issues which the appellant was seeking to raise. But they
certainly did dispose of them when, for the reasons given, they refused his
application for leave to appeal. Nor does the fact that the appellant’s application
for leave to appeal was dealt with on paper by the Criminal Appeals
Administration Judge create a procedural obstacle to his application to this court
for special leave to appeal. His decision that the application for leave to appeal was
incompetent, as communicated by the Appeals Manager to the appellant’s
solicitors, was based on the view that the refusal of leave by the sifting judges did
not amount to a determination of the devolution issues. This, for the reasons I have
given, was a misconception of the effect of what the sifting judges had done. It
falls to be treated for the purposes of para 13 of the Schedule as amounting to a
refusal of leave by the lower court. That being so, it is open to this court to decide
whether it has jurisdiction to entertain the application for special leave.
In the alternative it may be open to appellants to seek to petition the nobile officium to reverse the refusal to grant leave to appeal. Each case will have to be considered on its own merits to ascertain what procedure would be most appropriate.
The outstanding cases
There are a number of appeals in which the point has been taken and the issues remain to be determined by the appeal court. The Crown are conducting a review of all the cases in which the issue has been raised. This has led to the quashing of some convictions while in other instances the Crown has indicated its intention to continue to resist the appeals. In making these judgements the Crown are seeking to apply the guidance given by Lord Hope in . In other words where the evidence of the interview was critical to a sufficiency then there has been a miscarriage of justice and in all other cases the test set out in McInnes falls to be applied.
In some cases at least the Crown are intending to oppose the appeals on the basis that no objection was taken at or before the trial.
There may be some appeals pending on other grounds where the issue has not yet been raised but should be. These cases will need to be reviewed as soon as possible.
Practical issues arising from the decision in Cadder
It is understood that objections have been taken in various Sheriff Courts to evidence obtained under the provisions of the Misuse of Drugs Act 1971. It is understood that the issues arising from those cases will be heard in due course by the appeal court.
All that is clear at the moment is that there is likely to be scope to object to the proposed use of admissions even when these have not been obtained in the context of a detention under s.14 of the 1995 Act.
The legislative developments
There was an immediate response by the Scottish Parliament. The most disturbing aspect of the legislation, for present purposes, is that which relates to the relationship between the Commission and the appeal court.
It seems to be intended that the court will have the power to decline to entertain an appeal following a reference made by the Commission. Standing the terms of the legislation this applies to any reference whether predicated on the decision in Salduz or not.
As others have pointed out the characterisation of these measures as arising from the “emergency” produced by the decision is unsustainable. On any view it disturbs the delicate balance between the Commission and the court.
However it does mean that those whose rights have been infringed by the Lord Advocate might have no proper remedy for that breach. It will be interesting to see whether the appeal court will utilise this power and if so in what circumstances.
The decision has considerable implications for practitioners. The challenge will be to identify where the issues arise in past and present cases. The next few months should be interesting.