Keep your sticky fingers off our legal system, thanks

By skepticlawyer

In light of the SNP’s election win on May 5, this should come as no surprise:

The Scottish cabinet is taking action to stop the UK Supreme Court in London getting involved in criminal cases north of the border. SNP ministers said the independence of Scotland’s legal system must be defended in the wake of several high-profile rulings.

Scotland has its own, distinct court of criminal appeal [The High Court of Justiciary].

But the Supreme Court can currently rule on cases where Scots law conflicts with human rights legislation [under s 57 and Schedule 6 of the Scotland Act 1998].

The Scottish cabinet will discuss “possible remedies” at its regular weekly meeting on Tuesday, following a ruling in the Nat Fraser case.

Fraser was jailed for life in 2003 after being convicted of murdering his wife, Arlene, in Elgin. Having exhausted the appeal process at home, the 52-year-old won an appeal to have his conviction quashed when Supreme Court judges remitted the case to the Scottish Court of Criminal Appeal.

The Fraser case is just the latest in a long line of decisions where the UK  Supreme Court (heir to the old House of Lords; like everything else, the British legal system was Blairised) misinterprets civilian-origin human rights law in such a way as to undermine Scotland’s legal system. Indeed, the earlier Cadder ruling finished up finding a Scottish evidentiary rule contrary to the fair trial provision [Article 6] of the European Convention on Human Rights, despite the fact that the same evidentiary procedure is used in France, Germany, Italy, Sweden and the Netherlands (of which I am aware; it is highly likely that all Continental civilian systems allow police questioning of suspects in the absence of a lawyer):

Thousands of criminal cases could be open to appeal after a Supreme Court ruling that Scots police can no longer question suspects without their lawyer. Judges in London upheld an appeal by teenager Peter Cadder, whose assault conviction was based on evidence gained before he spoke to his lawyer.

Until now suspects could be questioned for six hours without a lawyer present.

The judges ruled this violated human rights to a fair trial. Ministers now plan to change Scots law. The Supreme Court judges said it was “remarkable that, until quite recently, nobody thought that there was anything wrong with this procedure” of questioning suspects without their lawyer present.

They ruled it contravened a decision by the European Court of Human Rights in 2008 that suspects having access to a lawyer was fundamental to them receiving a fair trial.

In their ruling, the judges admitted that their unanimous decision would have “profound consequences” for many Scottish cases.

Cadder was a classic case of common lawyers misunderstanding both civilian law and the Convention they were called upon to interpret. Fraser appears to be a failure to grasp the Scots law on provocation (although there are evidentiary things going on as well, about which it is improper for me to comment).

Sexual assault and provocation in civilian systems

As I’ve discussed previously, one of the few really large differences between common law and Roman law is in the treatment of sexual offences and the status of women (the other is the law of evidence, of which more below). The status of women differences have been resolved (common law divorce law is now unilateral and no fault, like the pagan Romans’ was, and married women have full rights to own and manage their property, like pagan Roman women did). Some modern civilian jurisdictions (notably France) have also preserved the pagan Roman ‘separate property in marriage’ rule to greater or lesser degrees, but this is not universal.

However, different laws on sexual offences and sexual harassment are still in place. Very briefly (and with the exception of Sweden), Continental civilian systems follow the Romans in seeing sexual harassment as a delict (tort, a civil wrong), which means liability can be apportioned. That is why men will cheerfully ogle a woman they fancy in France, Italy, Spain and Germany. They will often touch in Italy, which follows Ulpian in seeing a pat on the backside or a pinch as a delict, but not in France or Germany, which follows Gaius in seeing it as a crime. Any woman who has travelled around the Mediterranean or Bavaria will have noticed this. Local women have no trouble with it, but Anglophone women, from countries that have (relatively recently) criminalised the behaviour, are often shocked (at the tolerance, not the ubiquity of the behaviour).

If that seems anti-feminist, then the civilian law on rape and provocation has to be described as pro-feminist. Rape is easier to prove (requiring only that the woman prove that she did not consent; anything in the Suspect’s head at the time is irrelevant) and there is no ‘right of confrontation’ or ‘right to silence’ for the Suspect. A man who has sex with a passed out woman always goes straight to gaol. The witness/victim is questioned very gently, often in camera, by judges, not by counsel. (This is not a recent phenomenon, by the way; it is standard Romano-Canonical procedure, and has been since the enactment of the Code Civil.) Conviction rates in sexual assault and rape cases are very high in all first world civilian jurisdictions. Japan is the highest; as anyone who has travelled there knows, Japan is an almost unbelievably safe country.

As an aside, I suspect–but cannot prove–that this is why sexual harassment is a delict; the system is designed to allow a partial escape vent for less dangerous forms of male sexual behaviour towards women, but comes down like a tonne of bricks once that behaviour crosses the line into danger. For the pagan Romans, that line was stalking (and following more generally, which I discuss here). France, the Netherlands, Germany and Italy have all preserved this pattern.

The law on provocation is also distinctive; civilian countries follow (with various modifications) a set of laws enacted by the Roman Emperor Augustus. Unlike the common law, which historically allowed a husband who caught his wife in flagrante delicto to raise provocation if he killed her, Augustus’ law treated this as murder. Only if the husband killed the paramour could he raise provocation. [As another aside, some books will say Roman law permitted the killings entire; this is not the case. Augustus’ law allowed murder to be reduced to manslaughter (called ‘culpable homicide’ in civilian systems). The error comes about through a failure to grasp the difference between mitigation and a complete defence, something that has to be taught with great care to students of the criminal law even now]. My evolutionary biologist friends point out that the Roman law on provocation is consistent with primate behaviour among our Great Ape relatives (where males are ‘the expendable gender’), while the traditional common law rule is, in Darwinian terms, ‘unnatural’. Make of that what you will.

Scotland no longer uses Continental Romano-Canonical procedure, but its substantive law on provocation and harassment is still civilian. I will be very interested to see what happens in the Fraser matter now it has been remitted to the Scottish courts. I suspect a Scottish jury may well evince its displeasure with all parties by rolling out ‘not proven’ as a verdict.

Evidentiary and trial differences

Although Scotland now largely uses adversarial rather than inquisitorial procedure, there is still enough of the latter in the Scots system to mark it out as distinctive. Scotland is one of only two regimes (the other is the Netherlands) to preserve the ancient Roman third verdict, not proven, for example. ‘Not proven’ functions similarly to nolle prosequi in common law systems. It can be a way around the ne bis in idem principle, the Roman law version of double jeopardy. It is still sometimes used in this way in modern Roman-Dutch law. It has traditionally been a way for Scots jurors (fifteen of them in a criminal trial, verdict by simple majority) to show their irritation with a particular accused, to say ‘we think you’re a shit, but we’re not going to send you to gaol’. It often comes about when the Procurator Fiscal has made out its case to the civil standard (on the balance of probabilities) but not to the criminal standard (beyond reasonable doubt).

Another civilian hangover in Scotland is the importance attached to obtaining a confession, something that marks off civilian from common law systems as definitively as their laws on rape. The Roman lawyer saw (and sees) the confession as ‘the Queen of Proofs’; his common law counterpart has long suspected that confessions come about thanks to a length of rubber hose, and so sets them all about with evidentiary fever trees. This difference in perspective is simply irreconcilable and leads to enormous conflict between the two traditions, particularly when it comes to extradition matters. The differences go all the way down, too. Civilians think all the American Constitutional protections for the accused are designed to ensure that no-one ever goes to gaol, but are horrified by ‘perp walks’, shackles in court and very lengthy sentences. Common lawyers, for their part, despise Continental civilian systems’ lack of a right to silence, rejection of the right of confrontation and use of anonymous witnesses. Civilian privacy laws and rights to privacy also conflict with the common law’s traditional emphasis on freedom of speech.

Scots criminal law pre-Cadder–consistent with its civilian roots–prized the confession, although in other respects pursued a path intermediate between the two systems (Scots law has the right to silence, for example, in its traditional form — in that no negative inference can be drawn against someone who invokes it). The importance of the confession meant that the Suspect (often called Pannel, a Celtic term) could be interrogated for up to six hours by the police before being given access to a lawyer. The interrogations were video-recorded, and the recordings made publicly available during the trial. The Scottish constabulary, with some justification, thought it had its collective backside covered. Apparently not. The Cadder ruling meant emergency (and badly drafted) legislation designed to stop the entire Scots criminal justice system from falling over under its own weight was rushed through the Scottish Parliament, while the SNP promised ‘no more Cadders‘ if it won a majority in Holyrood.

That majority achieved, Alex Salmond and co are now making their move.


  1. Posted May 30, 2011 at 6:54 am | Permalink

    Civilians think all the American Constitutional protections for the accused are designed to ensure that no-one ever goes to gaol,

    Which is interesting given the US has the highest incarceration rate in the world.

    Common lawyers, for their part, despise Continental civilian systems’ lack of a right to silence, rejection of the right of confrontation and use of anonymous witnesses.

    Has there been any studies to compare the rates of false positives between the two systems?

  2. Posted May 30, 2011 at 7:26 am | Permalink

    desipis: there’s been lots of studies within legal systems, particularly in France and the US, but they are quite hard to compare. About the only thing everyone can agree on is that civilian systems make life easier for the Crown/state, while common law systems make things easier for the accused.

    I know this seems incredible, but it is partly based on what is criminalised. In Europe, there is no ‘war on drugs’ as such; the problem (even where drugs remain illegal) tends to be to medicalise, rather than incarcerate. The French system really does lock up a lot of rapists, while the American system really does lock up a lot of minor druggies that the French couldn’t give a bugger about.

    I’ll have a dig around in the morning for some personal favourites and pop the links up (it’s about my bedtime now).

  3. Jeremy Gans
    Posted May 30, 2011 at 8:14 am | Permalink

    Cadder was a classic case of common lawyers misunderstanding both civilian law and the Convention they were called upon to interpret).

    SL, what did the UKSC misunderstand in Cadder about either civilian law or the convention? It seems to me that your beef should be with the ECtHR, which unanimously held in Salduz v Turkey:

    The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.

    Maybe that’s a terrible ruling, but it’s hardly the UKSC’s fault. Also, do you know what ‘possible remedies’ are being considered in Scotland? Apart from following ECHR law, the alternative option appears to be to secede from both the UK and the CoE.

    LE, we have ‘not proven” here. It’s called ‘not guilty’. A less accurate phrase,but arguably more consistent with the presumption of innocence, which equates lack of proof with lack of guilt.

  4. Jeremy Gans
    Posted May 30, 2011 at 11:32 am | Permalink

    Rape is easier to prove (requiring only that the woman prove that she did not consent; anything in the Suspect’s head at the time is irrelevant)…

    Scotland no longer uses Continental Romano-Canonical procedure, but its substantive law on provocation and harassment is still civilian.

    This seems to suggest that there’s no mens rea of rape under Scottish law.

    But, until recent statutory changes, Scotland required an honest belief or recklessness, reasonable or not: see Watt, Re Lord Advocate’s Reference [2002] ScotHC 35. A 2009 statute now applies the usual objective test.

  5. Posted May 30, 2011 at 1:58 pm | Permalink

    From the Beeb (second link):

    Ministers in Edinburgh said the Scottish legal system should have direct access to the European court in Strasbourg, as was the case for other legal jurisdictions.

    The effect of Salduz in Europe has not been to stop interrogation in the absence of a lawyer (in Italy, for example, police interrogation in the absence of a lawyer is permitted for up to 30 hours). The ECHR ruling is designed to ensure that the Suspect can speak to a lawyer first if they so desire, not that a lawyer be present throughout. The UKSC has interpreted it as requiring the presence of a lawyer throughout all and every police interview. This is what happens in England and now, Scotland, too.

    I don’t usually recommend popular culture depictions of any legal system, but the early scene in the Michael Caine film Harry Brown where a lawyer is present for an entire police interview gives an idea of what the system looks like in practice.

    As for leaving the UK, Salmond promised a referendum on Scottish independence as part of his election campaign, and is quite deliberately timing it so that the result suits the SNP. The really big fight is over the Crown Estate, which takes in the North Sea oil reserves. Under the English doctrine of estates, the oil is ‘of the Crown’, but under the Scots/civilian doctrine of dominium, they belong to Scotland (leaving aside the Continental Shelf cases with their principle of equidistance).

    There are elements within the SNP who want out of the ECHR, but that is more likely to happen in England, thanks to the blow-up over prisoner voting. Parliament voted down the ECHR ruling, so it is only a matter of time before someone tests the water by appealing directly to the ECHR for compensation. I suspect that the reason that hasn’t happened already is concern by human rights lawyers that defeat in Strasbourg on the prisoner voting issue may well see the UK walk away from the ECHR entirely. (I say ‘UK’ because the Scottish situation is up in the air for a while yet; a lot of people are also waiting to see whether the Euro fails, leading to unknown but serious problems for the EU. That doesn’t matter for the UK so much, but does in places that have adopted the single currency).

    desipis: I will be back with linkies later, at the moment I am doing my commenting on an iPhone routine, which I’m sure is very bad for my wrists (well, it feels bad).

  6. Jeremy Gans
    Posted May 30, 2011 at 2:55 pm | Permalink

    The ECHR ruling is designed to ensure that the Suspect can speak to a lawyer first if they so desire, not that a lawyer be present throughout. The UKSC has interpreted it as requiring the presence of a lawyer throughout all and every police interview.

    Where does the UKSC say that? The judgment refers throughout to ‘access to legal advice’. Hope’s lead judgment refers to the requirement for the accused to have ‘access to a solicitor for advice before he is questioned by the police’ [50]. Rodger refers to ‘the right to consult a lawyer first’ [93]. Brown says that what is imperative is that ‘before being questioned he has the opportunity to consult a solicitor’ [108]. No requirement anywhere of presence throughout the interview. The issue of presence clearly didn’t arise, given that it was common ground that Cadder was only told of a right to tell his lawyer that he was being questioned (and that the police were entitled to stop the lawyer from talking to him until their six hours were up.)

    As for the plan of direct access to the ECtHR will prevent any more Cadders. France had direct access to the ECtHR and was told to change its procedures on suspect access to lawyers. See Brusco v France. And they are (slowly.) When in Rome…

  7. Jonathan D
    Posted May 30, 2011 at 2:59 pm | Permalink

    The ECHR ruling is designed to ensure that the Suspect can speak to a lawyer first if they so desire, not that a lawyer be present throughout.

    I know nothing, but I don’t see that in the judgment itself, even if that’s what has happened in response. Apart from at points being quiet clear that the grounds are not having had a chance to speak to a lawyer, they mention changes in France and Netherlands, so why would they be saying Scotland needs to go further?

  8. Posted May 30, 2011 at 3:07 pm | Permalink

    Jeremy, lawyers are now present for the whole interview, in both England and Scotland. That may not be what any of the courts wanted, but that is what is happening. It has not happened in Europe, but it is happening here. That suggests the problem is at the UK end, not the ECHR end (much as I dislike a great deal of what comes out of the ECHR, this one does seem to be a mess of Britain’s own making).

    Apart from at points being quiet clear that the grounds are not having had a chance to speak to a lawyer, they mention changes in France and Netherlands, so why would they be saying Scotland needs to go further?

    Jon D: it’s England (and now Scotland) that is ‘taking on’ and going further than they need to. England has whittled away much of the right to silence, but Scotland still retains it (that will probably change, all other things being equal). There is also the problem that ECHR jurisprudence isn’t, ahem, stellar (something canvassed in great detail in the Commons debate on prisoner voting), so getting it wrong at the UK end is entirely possible (a point Lord Hoffman has also made, speaking extra-judicially). The French, to be fair, tend to ignore ECHR judgments they don’t like, or implement them in such a desultory fashion that they have no meaning. The Brits and the Germans are more dutiful. A good (and very fair) summary of the to-and-fro is available in this piece:

    The issue, of course, isn’t prisoner voting, but parliamentary sovereignty. Prisoner voting rights is just a convenient smokescreen.

    The broader point (which I should have made in the main post) is that the Scottish system didn’t need to be changed; there was nothing wrong with it. Many of the awful debates in England concerning right to silence, the implementation of various changes in the law of evidence etc had simply passed Scotland by. That is also feeding into the SNP (and public) anger over this issue.

  9. Jeremy Gans
    Posted May 30, 2011 at 3:29 pm | Permalink

    Actually, it suggests that the problem is at the Scottish end and is a mess of Scotland’s own making. Maybe they should read Cadder themselves, rather than demonising it.

  10. Patrick
    Posted May 31, 2011 at 9:40 pm | Permalink

    Actually, it is happening in Europe as we speak.

    Further to Jeremy’s point about France, in essence, the French ultimate court of non-constitutional appeal, the Cour de Cassation, has held on 15 April that the EHRC was to the same effect, basically, and has held yesterday that this applies to nullify testimony obtained without the presence of a lawer even before the Court’s 15 April decision.

    So I’m with Jeremy Gans on this, the Scots are not going to change Cadder no matter how hard they blow.

    Talk about sensationalised reporting of legal issues 😉 !

  11. Posted May 31, 2011 at 9:53 pm | Permalink

    Cette décision signifie que dans le cadre d’une instruction, les mis en cause vont pouvoir plaider la nullité des procès-verbaux d’audition réalisés en garde à vue au cours des six derniers mois s’ils n’ont pu être assistés d’un avocat. Lorsqu’il n’y a pas eu d’instruction, ces nullités pourront être soulevées devant le tribunal correctionnel.


    Mais les avocats estimaient qu’il fallait aller plus loin et que tous les actes (déclarations, aveux…) consignés lors de gardes à vue antérieures au 15 avril hors de la présence d’un avocat devaient pouvoir faire l’objet de demande de nullité. L’entrée en vigueur officielle de la loi réformant la garde à vue interviendra demain même si la plupart des mesures de la réforme sont déjà applicables depuis le 15 avril.

    My French is rusty, Patrick: does this mean the lawyer has to be present throughout the police interview, or only contacted/made available beforehand? I’m reasonably sure that the latter is all that’s required by the judgment, but that the English and Scots (and possibly the French, pending your translation) have simply gone too far (or misinterpreted the ruling, or both).

  12. Jeremy Gans
    Posted June 1, 2011 at 5:20 am | Permalink

    SL, again, why are you talking about the English interpretation of Cadder? The English legal advice system pre-existed Cadder by decades and is a consequence of PACE and the English roll-back of the right to silence (which necessitates much more legal advice to suspects.) Apart from UKSC devolution decisions like Cadder and Fraser, the wider UK has no say in what goes on in Scots criminal justice. It is the Scots alone in the UK who have to deal with Salduz and Cadder.

  13. Posted June 1, 2011 at 6:47 am | Permalink

    I’m asking about the French interpretation of recent ECHR rulings here, and trying to work out if a lawyer is required to be present throughout the interview in France. This is certainly the case in England (I was in practice there until 2010), and is also how Cadder is being interpreted in Scotland. I want to know if that is what is happening in France and other civilian jurisdictions. I’m not really interested in which ECHR ruling is the basis for it, but what people are doing on the ground in different jurisdictions.

    The requirement for legal attendance throughout interview in England has been detrimental to Legal Aid provision and not terribly useful to Accuseds. If a similar system is being imposed on civilian regimes (where there is far less tradition of it), and the Scots are just following along, that will seal my view of the ECHR and see me join the growing group of Tories who want to use the prisoner voting issue as a trigger to allow Britain to walk away from the Convention. If, however, both England and now Scotland have just ballsed it up, then that, I am afraid, is business as usual. Welcome to Britain etc etc.

  14. Jeremy Gans
    Posted June 1, 2011 at 7:11 am | Permalink

    I realize you’re working through these issues (though your initial post gave quite a different impression.) But you also seem to be confusing a lot of different things: (a) whether it’s a ‘good’ thing (whatever that means) to have a defense lawyer present during an interrogation (standard practice in England and Australia for decades); (b) what exactly that practice us (which, in the case of Scitland, we have nothing other than your – and maybe the SNP’s – assertion; (c) why that practice exists (which you initially blamed on the UKSC misunderstanding Salduz; and then on the ‘British’ misunderstanding Cadder), as if there’s a single – and apparently ECtHR – cause of practices in Australia, England, Scotland and France. Apparently, you’ll achieve all of that understanding by translating a French judgment. Could I recommend simply reading Cadder, which is conveniently available in English?

  15. Posted June 1, 2011 at 7:21 am | Permalink

    I should add that I am a hold-out among Tories because I have some sympathy for the ECHR (I understand, even when I do not approve, its interpretation of Article 8). However, I also think that it is very important that parliament, all the while Britain remains ‘the UK’, remains sovereign.

    I also think that laws should work. LE is in the process of preparing a post on the terrifying vulnerability of Article 8 to new technologies. Since experience has taught us that when the law fights technical changes, the law always loses, then no matter how fine the arguments are for a right to privacy, we may simply have to give it up.

    In this case, ECHR jurisprudence that has the effect of demanding legal attendance throughout interview is profligate in its waste of legal aid moneys for little or no gain. Now ECHR jurisprudence isn’t stellar, but I doubt it would be so stupid. Which is why I think (hope) that until now England has been in the wrong and Scotland is in the process of going the same way.

  16. Posted June 1, 2011 at 7:30 am | Permalink

    Not in Queensland, at least, Jeremy. A lawyer is always offered (very clearly and explicitly) but many people waive the option (trial division supreme court associate, 18 months; saw this lots). If this is all the ECHR is asking for, then I have no problem with it; indeed, it seems very sensible. That was not how it worked in England, as I discovered soon enough. I read Cadder, and (coloured by my experience, I confess) thought that the UKSC was imposing the English system (Scotland had no PACE, remember) on Scotland.

  17. Jeremy Gans
    Posted June 1, 2011 at 7:31 am | Permalink

    And, to anticipate another conflation: (d) whether a lawyer for suspect interviews should be funded by legal aid (England and the US) or the suspect (Australia, in most cases.) That distinction, of course, has nothing to do with the ECHR and is heavily dependent on local arrangements. And yet it seems to be one of your main beefs (again without explanation) with Cadder/ECHR/the ‘British’.

    All of this makes me surly, because not reading judgments (I.e relyingbon newspapers), making unreferenced assertions about practice, and making unexplained claims that a particular procedure is a disaster, is standard form for both sides of debates about human rights and criminal justice. That’s not surprising for the likes of Bob Carr, but can’t lawyers do a little better?

  18. Jeremy Gans
    Posted June 1, 2011 at 7:41 am | Permalink

    Ok, now you’ve raised a further issue: waiver. That’s a perennial and difficult issue. Waiver usually needs informed consent, so how does it work for a suspect waiving the right to be informed? Australia and the US allow waiver (the latter with more formalities.) I don’t know English practice. But Salduz does say some things about waiver that tended towards the US option. What I can say is that waiver us always complex and contingent on a lot of local conditions.

    In Cadder, waiver wasn’t the issue because Cadder was told that his lawyer couldn’t communicate with him. A waiver of a right you’re told you cannot use is no waiver at all, right? Foe a similar Australian ruling, see the appeal of Joseph Terrance Thomas (Jihad Jack) in Victoria. Cadder didn’t address the issue of waiver when you are told you can consult with a lawyer and elect not to.

  19. Patrick
    Posted June 1, 2011 at 10:18 pm | Permalink

    SL, assisté means basically attended, so would imply ongoing presence as opposed to merely a contact.

    Note that in France there are competing but effectively confluent forces:
    – EHCR
    – Anti-judge backlash resulting from some apocalyptic miscarriages by investigating magistrates (but not actually to do with the ‘auditions’ they are talking about here), and
    – the legislation reforming these auditions, part of, but different to, the above.

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