Decision on Salduz Test Case

February 25, 2015

The seven judge Bench convened to consider the reference under the Scotland Act made by the Sheriff at Forfar in the case of HMA v McLean has rejected the submission made by counsel for the accused Chris Shead of Black Chambers.  If the main arguments advanced had been accepted it might have opened the way to challenging convictions in hundreds of cases.

The landmark case, which challenged the use of evidence derived from the interviews of suspects who had not had access to legal representation, followed a ruling by the Grand Chamber of European Court of Human Rights in the case of Salduz v Turkey.

No written decision was issued by the Court at the culmination of the hearing but it is hoped that this will be available shortly. The issue of permission to appeal to the Supreme Court was raised by the defence. However the court declined to hear the application at that stage indicating it would consider submissions once the written judgement is issued.

In the meantime, as a matter of practice, it seems (at least in the High Court), that where a so called “Salduz Minute” is extant, it is being refused in hoc statu pending the outcome of the application for leave to appeal to the Supreme Court on behalf of Mr McLean.

The prevailing view, so far as future practice is concerned, is that defence agents and counsel should continue to lodge “Salduz Minutes” where appropriate pending the outcome of any appeal to the Supreme Court – always assuming of course that permission to appeal is granted.

Matt Jackson, Advocate