We thought that it would be helpful, in the aftermath of the famous Supreme Court decision in the case of Cadder, to clarify when something said to the Police is regarded as admissible in evidence.

 

The decision in the Cadder case was that the prosecution cannot use in evidence any answers which may have been given by somebody who has been detained by the Police and then has been subjected to questioning by them without the benefit of legal advice.  In subsequent cases it has become clear that this rule applies not just when somebody has been formally detained (in terms of section 14 of the Criminal Procedure (Scotland) Act 1995) but also in situations which are arguably analogous to detention.  For example, there was a case where the Police were carrying out a search of a property in connection with a suspected Misuse of Drugs and the accused was handcuffed and placed under arrest for obstructing the Police.  Although the accused was in his house and not in a Police Station, it was held that answers which he gave to Police questioning at that time were inadmissible.  This is because his situation was tantamount to being under detention and, accordingly, the Court held that he should have been given the benefit of legal advice before being questioned.  On the other hand, there was a case where the Police, in relation to an alleged assault, questioned the accused at his home address under caution (but without handcuffing or arresting him).  In these circumstances, it was held that the accused did not have the right of access to legal advice.  The deciding factor appears to be: was the accused under detention or in some similar way had his freedom of action significantly curtailed?  If so, he should be offered the opportunity to take advice from a Solicitor before being questioned.

 

The Supreme Court has also recently considered when a suspect can be regarded as having validly waived his right of access to legal advice.  The answer is that the right can be regarded as validly waived when the accused has been informed of his rights, he unequivocally states that he does not wish to exercise them and this waiver was freely and voluntarily made.  Thus, if you are a fully functioning adult, are offered the opportunity to take advice from a Solicitor and decline that opportunity, what you say to the Police thereafter may be used in evidence against you.  However, there are certain categories of suspects who require to be treated withgreater consideration: for example, people of low intelligence; people who, for other reasons, are vulnerable; and those who are under the influence of drugs or alcohol.  The Police would not be allowed to question them without bending over backwards to establish that they fully understood their entitlement to access to legal advice.

 

In conclusion, it is worth re-stating the common law regarding spontaneous admissions.  The test was clearly spelt out in the famous Manuel case more than fifty years ago and it still applies.  The prosecution are entitled to use a statement which has been freely and spontaneously given and has not been elicited by questioning, pressure or inducement.