Addressing a meeting last week of the Society of Solicitors in the Supreme Courts of Scotland, he was, however, reluctant to name names of those asleep on their watch.
“The first anyone knew about it was after the decision was advised in Strasbourg,” he said. “It would have been helpful to know earlier and we could have asked the UK government to intervene on Scotland’s behalf. I don’t believe the outcome would have been different but I am confident that if the UK government had intervened, it would have influenced the terms of the judgment and made their application in Scotland much clearer without further jurisprudence.”
He did admit that the fallout from Salduz ‘could have been worse’ as the resultant case of Cadder v HMA played out in the UK Supreme Court in October 2010.
All hell broke loose when their lordships established that the prevailing assumptions in Scotland about the rights of a suspect to legal advice before interrogation were ill-founded.
Emergency legislation followed. Politicians railed against the intervention of the “London-based court”. The Crown abandoned a significant number of prosecutions. Lord Carloway produced a review that, among other things, recommended doing away with the unique Scottish requirement for corroboration.
In the event, Mulholland acknowledged, when the Cadder judgment did arrive, the Crown Office “was pretty depressed … there was a risk we were facing legal armageddon”.
Thousands of convictions could have been open to appeal, should the decision be applied retrospectively.
However, before Cadder had even got to court, the Lord Advocate revealed that at some point after the November 2008 judgment by the ECHR in Strasbourg in the case of Salduz v Turkey, the Crown Office had, without publicity, issued instructions to prosecutors not to lead evidence based on admissions in interviews during detention “unless required for sufficiency”.
The damage could also have been much less, but the Lord Advocate promised the Crown Office would not be taken so unawares in the future as to “miss the signs” a second time.
The day was saved by the endorsement by the Supreme Court of the notion of ‘certainty and finality’ in a case from the Irish Supreme Court, A v Governor, Arbour Hill Prison, in which the door was effectively closed to past cases that had not raised ECHR points prior to any new human rights decision.
“The importance of that judgment cannot be overestimated,” Mulholland said. It was most recently applied in Scotland in Cameron v HMA, when Lord Eassie upheld a claim under ECHR that an accused on bail is not necessarily required to stand in an identity parade, but said his ruling could not be used to reopen old cases.
The Lord Advocate also welcomed the recommendation of Lord Carloway to abolish the requirement for corroboration and, in answer to a question, made his position clear against juries being advised they may draw an adverse inference from the silence of an accused in interview. “There’s no culture for it in Scotland. A jury isn’t going to draw an adverse inference if the accused says, ‘I’m not saying anything on the advice of my solicitor’.”
If Salduz, Cadder and their offspring, in what Mulholland described as the “family” of related cases, have apparently damaged the standing of Scots law and its pretensions to enlightenment, he set out the first faltering steps to rehabilitation. His claim is that the thinking that led to Salduz has Scots law in its antecedents.
He reached back into the 19th century and the evolution of the status of the accused as compellable witness hand in cuff with the development of modern policing. It turns out the first limits on the use that can be made of admissions made by a suspect as evidence in a trial were in 1887 set out in a Criminal Procedure Act.
The Scottish case of Chalmers v HMA in 1954 reiterated the rights of the accused against rehabilitation and was one of the authorities cited in the United States Supreme Court’s development of Miranda Rights. No English cases were cited.
Unfortunately, Scots law disappeared up a well-intentioned cul de sac in the 1970s. It has taken Messrs Salduz and Cadder to return thinking to where we were in 1887.