Thomas Ross KC: The ECHR – is it all that?
I have learned from experience – that when it comes to expressing views on social media in 2023 – it is usually wise to begin by making crystal clear what I am not saying. I am not saying that the United Kingdom should withdraw from the European Convention on Human Rights.
That said, viewed strictly from a Scottish criminal justice context, the exaggerated claims made for the Convention are seldom justified by the evidence. In the relatively recent past a former MSP and current legal academic had the temerity to suggest that maybe the ECHR ‘wasn’t all that’. From my knowledge of Scottish criminal appeal cases I was inclined to agree with him – but having observed the torrent of criticism and abuse that he received for saying it – I kept my agreement to myself.
So why enter the debate now? Well it is one thing when the ECHR isn’t making things any better – and a different thing altogether when it’s making things substantially worse.
I speak of course of the recently reported case of Barr which concerned an application to extend the 12 months time limit. When learning the law our teachers were always visibly proud of our time-bar rules – stressing that ‘not all countries have them’. The rule required that when a citizen appeared in court on a charge serious enough to merit trial by jury – the state must commence the trial within 12 months. In March 2020 the courts were mothballed due to Covid and the Scottish Parliament ‘temporarily’ extended the period to 18 months. The state is permitted to make an application to extend the 18 month period ‘on cause shown’ – but as it is extremely unusual for the accused to oppose the application – it is equally unusual for the ‘cause’ to be examined by the court.
In Barr v HMA  HCJAC 9 a sheriff at Edinburgh granted an application to extend the 12 month period. In response B exercised his right of appeal. In rejecting B’s appeal Scotland’s most senior judge, the Lord Justice General (Carloway) observed that “it may often be difficult to resist an application for an extension of the 12 month time bar when the trial remains due to start within what would be regarded as a reasonable time under the Convention, where a reason for an extension is proffered and no additional prejudice is demonstrated”. European Court of Human Rights authorities can readily be found where almost four years between charge and trial has been considered ‘reasonable’ in the particular circumstances of the case. Result – a one-year rule introduced by legislation of the UK Parliament – potentially extended to a three or four year one – in a single sentence.
To be fair to Lord Carloway – it can be argued that his remarks simply reflect the reality of the High Court in 2023 – absent any case related reasons to extend the time bar a two-year wait for a trial is very far from uncommon. I’m all for common sense solutions to criminal justice challenges – but isn’t it better to have a definite target? What incentive now for the Crown to get its act together on time? What chance of the 18 month period ever returning to 12? Most importantly of all, with 2,000 untried prisoners on remand in Scotland, how long before the same logic is applied to the 140 day custody time bar?
Recovery of personal records is another area in which the ECHR has undoubtedly made things much worse for the accused. One phrase often uttered by advocates depute in rape trials is guaranteed to really grind my gears – ‘why ladies and gentlemen would X make it up’. Well in the first place Crown Office know that people make false claims of rape: Crown Office prosecutes people for it. In the second, Crown Office know why people make false claims of rape – because the people who do it put forward pleas in mitigation when they get caught. KH – jailed for a year in Aberdeen sheriff court in 2014 – did it because she was suffering from depression and alcoholism. In the shocking recent case of EW – the Barrow woman who made multiple false claims of rape against men serious enough to merit sending her to prison for 8.5 years – it was said that she suffered from “complex post-traumatic stress disorder resulting from childhood trauma”. All of which brings me back to recovery of personal records.
I remember the days when you could go to Crown Office with a suspicion that there might be something of relevance to the defence in the complainer’s records and the Crown would recover the records for you. The records would be viewed only by the lawyers – and in the vast majority of cases – very little if any material would ever enter the public domain. The adoption of the ECHR put paid to all of that. Now the defence must make a formal application to the court, based upon the somewhat challenging notion that you have to tell the court what of relevance is in the records before you have seen them – at a hearing at which the complainer is entitled to be represented to oppose. How do you fancy those odds?
And so it is with telephone records. From the Aberdeen Live report of the SS case (given 14 months for a false complaint of rape in December 2022): “police arrested the man … and immediately pleaded with officers to look at his phone. Detectives then discovered incriminating messages sent from SS to him”. That man was lucky that he still had the handset; it would have been a different story if he had asked the police to dispossess SS of her phone at the time when she was maintaining that the rape allegation was true. If it had been necessary for him to petition the court to order Vodafone to produce records – there is every chance that SS AND Crown Office would have opposed the application.
I accept that the vast majority of rape allegations are true; but we know as a matter of fact that not all are. A study suggested that in England and Wales the percentage of false allegations might be as low as two per cent and certainly no higher than 10 per cent. As I have often observed: if I found myself in the sex offenders wing in HMP Shotts as a result of a false rape allegation, separated from my family, my career ended and my very future blighted by inclusion on the sex offenders register, I doubt if the fact that only two per cent of rape claims are false would offer very much by way of consolation.
But what I hear you say of Cadder – the case that established the right of a suspect to have a lawyer present at interview? Well by the time the judgment of the Appeal Court was delivered in Dickson the legislative gates had been opened to allow the ECHC to flow up the Clyde and the Forth. But if the ECHC had been expecting an ambassadorial reception at the quayside – it was to find that Scotland had put its lights out and was pretending that it wasn’t in.
In Dickson 2001 JC 203, five judges failed to put right the issue of access to legal advice at interview. A full eight years of lawyer-free interviews passed before seven judges re-considered the matter in McLean 2010 SLT 73. By then few thought that the European Court of Human Rights case of Salduz v Turkey (2008) EHRR 19 left the matter in any doubt; but again the appeal was unsuccessful.
It took the UK Supreme Court in London to sort the whole mess out in Cadder  UKSC 43. Little wonder that Lord Hope of Craighead chose to begin with the following words “It is remarkable that, until quite recently, nobody thought that there was anything wrong with this procedure. Ever since the statutory power to question a suspect prior to charge was introduced … the system … has proceeded on the basis that admissions made by a detainee without access to legal advice during detention are admissible. Countless cases have gone through the courts, and decades have passed, without any challenge having been made to that assumption.”
Cadder was great news for all the people still to be interviewed – and for those yet to be prosecuted – but what of those historically convicted on the basis of confessions at interview in the absence of a lawyer. Certainly no retrospective right was recognised. They just had to take it on the chin.
Perhaps when the outgoing first minister was drawing up her list of apologies for things that she had no responsibility for she should have included an apology to people like Raymond Gilmour who served 20 years for a rape and murder that somebody else committed – on the basis of things allegedly said to the police at interview in the absence of his lawyer?
This article first appeared on the Scottish Criminal Law Blog