European Court of Human Rights

 

FOURTH SECTION

DECISION

Application no. 19923/10
Ryan PATERSON
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 3 September 2013 as a Chamber composed of:

     Ineta Ziemele, President,

     David Thór Björgvinsson,

     Päivi Hirvelä,

     George Nicolaou,

     Paul Mahoney,

     Krzysztof Wojtyczek,

     Faris Vehabović, judges,
and Françoise Elens-Passos , Section Registrar,

Having regard to the above application lodged on 29 March 2010,

Having regard to the Court's partial decision of 22 May 2012,

Having deliberated, decides as follows:

THE FACTS

1.  The applicant, Mr Ryan Paterson, is a British national, who was born in 1984. He was represented before the Court by Ms R. Cameron, a lawyer practising in Edinburgh with John Pryde & Co Supreme Court Solicitors. The United Kingdom Government ("the Government") were represented by their Agents, Ms A. Swampillai and Ms A. McLeod, of the Foreign and Commonwealth Office.

A.  The circumstances of the case

2.  The facts of the case, as submitted by the parties, may be summarised as follows.

3.  On 12 March 2008 the applicant had sexual intercourse with a woman, W.

W. subsequently alleged that the applicant had raped her.

4.  The applicant was interviewed by the police without the presence of a lawyer. In the course of the taped interview he admitted having sexual intercourse with W. but maintained that it had been consensual.

5.  The applicant was subsequently charged and tried for rape at the High Court of Justiciary at Glasgow. At the trial, the prosecution introduced the taped interview as evidence. On 12 May 2009, the applicant was convicted by a majority verdict of the jury and sentenced to five years' imprisonment.

6.  The applicant applied to the High Court of Justiciary sitting as a court of criminal appeal ("the Appeal Court"), for leave to appeal against conviction and sentence, inter alia on the ground that it was incompatible with Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 for the prosecution to have introduced the police interview as evidence at trial.

7.  By letter dated 19 November 2009 the applicant was informed that, on 19 November 2009, the single "sift" judge had refused leave to appeal. The judge stated that the applicant's grounds were based on this Court's judgment in Salduz v. Turkey [GC], no. 36391/02, ECHR 2008. However, the Appeal Court's judgment in HM Advocate v. McLean [2009] HCJAC 97 (which declined to apply Salduz to Scots law: see paragraphs 12–17 below) made clear that these grounds were unarguable.

8.  By letter dated 3 December 2009 the applicant's legal advisers intimated their intention to have the refusal of leave to appeal reviewed, and the case papers passed to the "second sift" (review by a panel of three judges). On 15 December 2009 the applicant was informed that the second sift judges had refused the applicant's appeal against the single sift judge's decision. They stated that the appeal against conviction was unarguable for the reasons given in McLean. Furthermore, even if the admission of the evidence regarding the interview was erroneous, they did not think it arguable that it had resulted in a miscarriage of justice, having regard to the content of the interview.

9.  By letter of 24 December 2009, the applicant's legal advisers wrote to the High Court of Justiciary stating that the court's decision of 15 December 2009 represented the determination of a "devolution issue" in the case. (A devolution issue is a dispute as to whether the Scottish authorities, including the Lord Advocate as head of public prosecutions, have acted ultra vires. This includes whether they have acted incompatibly with their obligations under the Convention. A Scottish criminal case can only be appealed to the Supreme Court if a devolution issue arises in it). The letter of 24 December 2009 asked for a procedural hearing to be arranged so that an application for leave to appeal to the Supreme Court could be made.

10.  On 5 January 2010 the applicant was informed that the application for a procedural hearing had been considered and refused by the Criminal Appeals Administration Judge for the following reasons:

"The refusal of leave brought this appeal to a conclusion. Contrary to what you maintain in your letter of 24 December, that refusal does not amount to the determination of a devolution issue from which an appeal may lie to the Supreme Court of the United Kingdom. There has been no such determination by the High Court. Quite the contrary, the appeal was not given leave to proceed. This case is at an end and no further procedure is competent."

11.  After the conclusion of these proceedings the applicant sought to have his case referred back to the Appeal Court by the Scottish Criminal Cases Review Commission ("the Commission"), on different grounds, namely that there was insufficient evidence to support the mens rea (mental element) of rape and that the jury's verdict was unreasonable. For reasons given to the applicant in March 2012, the Commission decided not to refer the case back to the Appeal Court on these grounds.

B.  Relevant domestic law and practice

1.  HM Advocate v. McLean [2009] HCJAC 97

12.  At the time of the above judgment (and the time of the present applicant's trial), sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act") provided that a person detained at a police station had the right to have the fact and place of his detention intimated to a solicitor, but did not have the automatic right of access to a solicitor either prior to or during a police interview.

13.  Sections 14 and 15 of the 1995 Act gave legislative effect to the recommendations of the Thomson Committee on criminal procedure in Scotland. The Committee recommended the introduction of a limited or temporary form of arrest, arrest on suspicion, which should be given the separate name of "detention" (as distinct from arrest after a suspect is charged). Detention should not last longer than was necessary in the interests of justice, should be succeeded as soon as possible by either release or arrest, and should not exceed a fixed period of time at the end of which the detained person should either be released or arrested and charged. The Committee considered that while an arrestee should be entitled to an interview with a solicitor, it should be a matter of police discretion whether to allow a detainee an interview with his solicitor. In making this recommendation, the Committee noted that the purpose of interrogation of a suspect/detainee was to obtain from him such information as he might possess regarding the offence, and this purpose might be defeated by the participation of his solicitor.

14.  The compatibility of sections 14 and 15 of the 1995 Act with this Court's judgment in Salduz v. Turkey [GC], no. 36391/02, ECHR 2008 was considered by the High Court of Justiciary sitting as a court of criminal appeal ("the Appeal Court") in HM Advocate v. McLean.

15.  The Appeal Court considered that Salduz was open to interpretation. It could, on the one hand, be read as requiring that every jurisdiction have in place a system where access to a lawyer was ordinarily provided as from the first interrogation of a person, whatever safeguards there may otherwise be for a fair trial. Alternatively, the Court could have required that access to legal advice be seen against the guarantees which were otherwise in place to secure a fair trial.

16.  The Appeal Court favoured the latter interpretation. Proceeding on that basis, it was satisfied that the guarantees available under the Scottish system were sufficient to secure a fair trial of someone who was interviewed without access to a lawyer and whose responses were relied on by the prosecution. The Appeal Court stated:

"[27]  In the first place it is important to notice that Scots law is particularly jealous to protect a person who has, in the domestic sense, been charged with a crime, that is a person who, having been cautioned that he need not respond, has had read to him by the police the charge or charges which they propose should be preferred against him. Such a person, if arrested, has the right to have a solicitor informed of what has happened and to a subsequent interview with him before his appearance in court. He may not, after caution and charge, be further questioned by the police. He may, if he chooses, make a voluntary statement but that is taken by officers not involved in the inquiry. Problems occasioned by these protections persuaded the Thomson Committee to recommend, and Parliament to endorse, a form of limited or temporary apprehension on suspicion - to which they gave the separate name of 'detention'. A number of safeguards apply to persons in detention. Before being questioned by the police the detainee must be cautioned that he need not answer any questions put ‑ other than certain formal particulars (section 14(10) [of the 1995 Act]) - but that, if he does answer, his answers will be recorded and may be used in evidence. In all serious cases the interview is tape recorded - and in some cases, as in the present case, video recorded - with the tape or tapes sealed at the conclusion of the interview. While the police may question the detainee, and may do so persistently and robustly, they are not entitled to coerce him or otherwise to treat him unfairly. If they do so, that will render any incriminating answers which he gives inadmissible in evidence at his subsequent trial (Lord Advocate's Reference (No.1 of 1983) 1984 JC 52). Challenges to admissibility on such grounds may be made either in advance of the trial or in its course. The accused is entitled to give evidence as to the circumstances of the questioning during detention without being required to answer any questions as to the substance of the charge or charges; thus his right to silence at his trial is protected. The onus of proving that any admission made by the accused in the course of detention was fairly elicited is on the prosecution (Thompson v Crowe 2000 JC 173). The trial judge must forthwith rule on the challenge to admissibility by either excluding or admitting the answers in evidence. (It is noted that in Salduz the Izmir State Security Court did not 'take a stance' on the admissibility of the applicant's statements - para 57). Even where the judge admits the answers, the jury in solemn cases is entitled to take into account the circumstances in which any incriminating answers were given and, if they think fit, to give no or little weight to such answers. As explained in the caution, a suspect is entitled to decline to answer any of the questions (other than the formal questions) put by the police. That right when exercised is respected. The jury is expressly directed at the trial that it may not draw any inference adverse to the accused from any declinature to answer police questions. Even if the accused makes an admission during detention which is held to have been freely and voluntarily given in fair circumstances, he cannot be convicted on the basis of that admission alone. Scots law requires that there be corroboration by independent evidence (Morton v HM Advocate 1938 JC 50; Sinclair v Clark 1962 JC 57). A person may not be detained for more than six hours; it may be less (section 14(2) [of the 1995 Act]) - as it was in this case. He must be informed immediately upon the termination of his detention that his detention has been terminated (section 14(2)). He may not be further detained on the same grounds or on any ground arising out of the same circumstances (section 14(3)). Although a detained person has no right to have access to a lawyer before being questioned, he is entitled to have the fact of his detention and of the place where he is detained intimated without unreasonable delay to a solicitor and to one other person reasonably named by him (section 15(1)). Additionally, the police may, if they think fit, allow a lawyer or other person to be present during the detention. This discretion is likely to be exercised where the detainee is perceived to be a vulnerable person."

17.  The Appeal Court added that, if it was wrong in its interpretation of Salduz, it had to consider the effect of that assumption. Ordinarily, as a result of the obligation to take account of Strasbourg jurisprudence under the Human Rights Act 1998, United Kingdom courts should not without good reason depart from the principles laid down in a carefully considered judgment of the European Court sitting as a Grand Chamber. However, there was no evidence that, in Salduz, the implications for the Scottish system had been "carefully considered" by the Grand Chamber. In those circumstances the Appeal Court was of opinion that, while the judgment in Salduz commanded great respect, it was not obliged to apply it directly in Scotland. Thus, even if Salduz amounted to the expounding of a principle that Article 6 required that access to a lawyer should be provided as from the first interrogation of a suspect by the police, the Appeal Court was satisfied that that principle could not and should not be applied without qualification in Scotland. In particular, if other safeguards to secure a fair trial of the kind which it had described were in place, there was, notwithstanding that a lawyer is not so provided, no violation of Article 6.

2.  Cadder v. HM Advocate [2010] UKSC 43

18.  Peter Cadder was detained in May 2007 following an incident in which two men had been attacked by a group of youths. He was taken to a police station and interviewed, under caution but without the presence of a lawyer, by two police officers. During the interview he made a number of admissions with regard to the offences with which he was later charged. He was then arrested, cautioned and charged with assault and breach of the peace. At trial the audio tape recording of his police interview was played in full to the jury and they were given copies of the transcript. On 29 May 2009 he was convicted on all charges. He appealed against conviction inter alia on the ground that his interview had been relied on at trial. His appeals to the Appeal Court were refused on the papers at the first and second sift stages. He then submitted an application for special leave to appeal to the Supreme Court.

19.  On 26 October 2010 the Supreme Court unanimously found that: (i) McLean had been incorrectly decided by the Appeal Court; (ii) Cadder's case should be remitted to the Appeal Court for further consideration; and (iii) its ruling should not apply retroactively.

20.  On the first issue, Lord Hope found that the Appeal Court had erred in its interpretation of Salduz. The Grand Chamber's judgment was to be understood as laying down two statements of principle: that access to a lawyer should be provided as from the first interrogation of suspect; and that the rights of the defence would be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer were used for a conviction. There was room for a certain flexibility in the application of these requirements but they did not permit a systematic departure from it, which was what had occurred under the 1995 Act. As to whether Salduz should be followed, Lord Hope noted that the judgment had been given by a unanimous Grand Chamber, it had been repeatedly followed in subsequent cases and was now firmly established in the jurisprudence of this Court. Lord Hope also observed that the majority of those Contracting States which prior to Salduz did not afford a right of legal representation at interview (Belgium, France, the Netherlands and Ireland) had recognised that their legal systems were, in that respect, inadequate (see the decision of the Supreme Court of the Netherlands LJN Bh3079, 30 June 2009; decision no. 2010-14/22 QPC, 30 July 2010 of the Conseil Constitutionnel; and the Court of Cassation's judgments no. 5699, 5700 and 5701, 19 October 2010). If Scotland were not to follow the example of others it would be alone in not doing so, and would find no support in England and Wales or Northern Ireland, both of which jurisdictions allowed the right of access to a lawyer.

21.  For Lord Hope there was also no room for finding that the guarantees otherwise available under the Scottish system were sufficient to secure a fair trial. Those guarantees were commendable but were, in truth, incapable of removing the disadvantage that a detainee would suffer if, not having access to a solicitor for advice before he was questioned by police, he made incriminating admissions or said something which enabled the police to obtain incriminating evidence from other sources which was then used against him at his trial.

22.  Lord Rodger, concurring in judgment, stated that the many other safeguards which existed in Scots law for accused persons, and which the Appeal Court had relied upon, were "beside the point". This Court's reasoning in Salduz was based on the implied right of an accused person not to incriminate himself. This being so, the only safeguards in Scots law which could be relevant would be those which were designed to protect that right. The safeguards relied on by the Appeal Court, though admirable and going further than some other systems, could not, and did not, protect that right. Instead, it was clear from the recommendations of the Thomson Committee that the purpose of sections 14 and 15 of the 1995 Act was intended to give the police and prosecution an enhanced possibility of obtained incriminating admissions from the suspect which could then be deployed in evidence at his trial. The procedure provided for in those sections was, therefore, the very converse of what the Grand Chamber held to be required in Salduz. For this reason, in Lord Rodger's view, there was "not the remotest chance" that this Court would find that, because of the other protections Scots law provided for accused persons, the Scottish system was compatible with Articles 6 §§ 1 and 3 (c).

23.  On the second issue, both Lord Hope and Lord Rodger declined simply to quash Cadder's conviction. Lord Hope found that such a course would only be appropriate if it was clear that there was insufficient evidence for a conviction without the evidence of the police interview or that, taking all the circumstances of the trial into account, there was a real possibility that the jury would have arrived at a different verdict had they not had that evidence before them (per Lord Hope at paragraph 64).

24.  On the third issue, the effect of the Supreme Court's ruling, both Lord Hope and Lord Rodger (with whom the other Justices agreed) held that, in the interests of legal certainty, the ruling should not permit the re‑opening of closed cases, but rather only apply to cases which had not yet gone to trial, to cases where the trial was still in progress and to appeals that had been brought timeously. For all closed cases it was a matter for the Scottish Criminal Cases Review Commission to decide whether the cases should be referred back to the Appeal Court and for that court to decide what course it ought to take if a reference were to be made to it by the Commission.

3.  Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010

25.  Immediately after the Cadder ruling, the above Act ("the 2010 Act) was passed by the Scottish Parliament. It amends the Criminal Procedure (Scotland) Act 1995 to allow a suspect the right to have intimation sent to a solicitor inter alia that the solicitor's professional assistance is required by the suspect. It also provides for the right to a private consultation with a solicitor before any questioning begins and at any other time during such questioning. Consultation includes, for example, consultation by means of telephone. The 2010 Act also provides that a suspect must be informed of these rights.

26.  The Scottish Criminal Cases Review Commission is a public body with the task of reviewing and investigating cases where it is alleged a miscarriage of justice has occurred. The 2010 Act amends the provisions of the 1995 Act which give the Commission the power to refer cases to the Appeal Court. The 2010 Act directs the Commission, in determining whether or not it is in the interests of justice that a reference should be made, to have regard to the need for finality and certainty in the determination of criminal proceedings (section 194C(2)) of the 1995 Act as inserted by the 2010 Act). The 2010 Act also gives the Appeal Court the power to reject a case which has been referred to it by the Commission if the court considers that it is not in the interests of justice that any appeal arising from the reference should proceed (section 194DA(1)). The Act provides that, in determining whether or not it is in the interests of justice that any appeal arising from the reference should proceed, the Appeal Court must have regard to the need for finality and certainty in the determination of criminal proceedings (section 194DA(2)).

4.  "Post-Cadder" case-law

27.  The Appeal Court considered the proper approach to sections 194DA(1) and (2) in two references made by the Commission in M [R.M.M.] v. HM Advocate [2012] HCJAC 121. Each of the two references concerned cases of sexual offences where the prosecution had at trial relied on statements made by the accused in police interrogations when they had not had access to solicitors before questioning. In allowing the references to proceed the Appeal Court stated:

"An independent body specifically entrusted with considering cases of possible miscarriages of justice has decided that it is in the interests of justice that it should make these references (1995 Act, s 194C(1)). In making that decision the Commission has considered the interests of finality and certainty (s 194C(2)). Although this court has been given the power to reject a reference in language that replicates the provision applicable to the Commission (s 194DA(1), (2)), it cannot be right for us simply to duplicate the Commission's function and give effect to our own view. In light of the impressive record of the Commission, it is unlikely that we will have cause to differ from its judgment on this point. I think that we are entitled to assume, unless the contrary is apparent, that the Commission has considered the criteria set out in section 194C and has duly made its independent and informed judgment on them. In my view, we should reject a reference only where the Commission has demonstrably failed in its task; for example, by failing to apply the statutory test at all; by ignoring relevant factors; by considering irrelevant factors; by giving inadequate reasons, or by making a decision that is perverse."

28.  When R.M.M.'s case later came before the Appeal Court for consideration of whether the conviction should be quashed (R.M.M. v. HM Advocate [2012] HCJAC 157), it was accepted by the Crown that the leading of the evidence of the interviews conducted by the police was in breach of Article 6 and that, on that account, the evidence was inadmissible. The issue was whether, without the evidence, there would have been insufficient evidence for a conviction or that, taking all the circumstances of the trial into account, there was a real possibility that the jury would have arrived at a different verdict had they not had the interview evidence before them (see Lord Hope's observations in Cadder, paragraph 23 above).

The Appeal Court went on to observe that, in a case such as R.M.M.'s, the appropriate starting point was an examination of the role which the evidence of the questioning of the accused played in the prosecution case, and a useful starting point in that examination might well be the extent to which that evidence was invoked in the prosecutor's address to the jury at the conclusion of the trial. Having examined the transcript of that address, the court concluded that the police interviews were clearly presented to the jury as being of major importance to the Crown case. The centrality and importance of those interviews led the court to conclude that there was a realistic possibility that, had the interviews not been before the jury, the jury might have returned a different verdict. For this reason, the Appeal Court quashed the conviction.

29.  In Mark Chamberlain-Davidson, the Commission referred a conviction for assault with intent to rape. However, it did so on grounds other than Cadder, finding that, while the "Cadder principle" had been breached (and, in the absence of the appellant's police interviews, an acquittal would have been inevitable), it was not in the interests of justice to refer the case to the Appeal Court. It reasoned that the appellant had served his prison sentence of eighteen months and, at trial, had relied on the police interviews as part of his defence.

Applying R.M.M., the Appeal Court accepted the reference ([2012] HCJAC 120) and, notwithstanding the view of the Commission, then gave the appellant leave to lodge an additional ground of appeal based on Cadder ([2012] HCJAC 122). Having heard submissions, it then quashed the conviction finding that, without the interviews, there was insufficient evidence for conviction ([2013] HCJAC 54).

COMPLAINTS

30.  The applicant complained under Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1, that his trial was unfair because he was denied access to a lawyer during his detention and his statement to the police was subsequently relied on by the prosecution at trial.

THE LAW

A.  The Government's declaration and the parties' submissions on it

31.  After unsuccessful friendly-settlement negotiations, by letter dated 19 January 2013, the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the applicant's complaint. They further requested the Court to strike out the application in accordance with Article 37 of the Convention. The declaration provided as follows (footnotes omitted):

"1. The United Kingdom accepts that there has, in the circumstances of the present case, been a breach of the applicant's rights under Article 6(3)(c) of the Convention in respect of the failure of the police to give the applicant an opportunity to consult a lawyer before or during the police interview and the reliance subsequently placed on the interview at the applicant's trial.

1.1. The applicant was the sole suspect in respect of an allegation of rape. The applicant was interviewed at a police station by two police officers. The applicant was not given an opportunity to consult a lawyer either before or during that interview. Although the applicant attended the police station voluntarily, if he had not agreed to attend for questioning, the police would, in this case, have detained him using compulsory powers.

1.2. At the applicant's trial, the prosecutor had the tape of the applicant's police interview played to the jury and distributed transcripts of the interview to the members of the jury. The prosecutor referred to aspects of the interview in his speech to the jury. The trial judge, in the course of his charge to the jury, identified certain aspects of the interview which tended to support the Crown case.

2. The Government notes that at the applicant's trial the principal evidence against the applicant came from the complainer. The applicant gave evidence himself and expressly confirmed that he stood by what he had said at interview. His evidence comprised substantially the same account which he had given to the police. The applicant's lawyer stressed the manner in which the applicant had co-operated with the police at interview and sought to draw favourable inferences from that. The jury heard the evidence of the complainer and the applicant, and was able to assess the credibility and reliability of their respective positions in light of the other evidence in the case. The Government refers to the charge [summing up] to the jury and to the observations at pp. 5 to 7 of the trial judge's report to the Appeal Court...

3. The applicant's case was concluded before the decision of the UK Supreme Court in Cadder v. HM Advocate [2010] UKSC 43 was issued. In the interests of legal certainty, the UK Supreme Court made clear that its ruling in Cadder did not (subject to the powers of the Scottish Criminal Cases Review Commission to refer a case to the Appeal Court) permit the reopening of closed cases: paras. 60-62 per Lord Hope; 100-103 per Lord Rodger of Earlsferry. This Court [the European Court of Human Rights] has, when applying the time limit in Article 35(1) of the Convention to applications from Scotland concerning access to legal advice, acknowledged the propriety of that aspect of the UK Supreme Court's decision: Lang and Hastie v. the United Kingdom, Application Nos 19/11 and 36395/11, para. 32.

4. Following the issue of the Supreme Court's decision in Cadder, domestic law was immediately amended to give a detained suspect in the position of the present applicant the right to legal advice before and during questioning by the police: section 15A of the Criminal Procedure (Scotland) Act 1995, as amended by the Criminal Procedure (Legal Assistance, Detention and Appeals)(Scotland) Act 2010 [see paragraph 25 above].

5. In the circumstances of the case, the Government offers to pay the applicant the amount of EUR 4,500 (four thousand five hundred euros) to cover any and all pecuniary and non-pecuniary damage as well as any costs and expenses, to be paid in pounds sterling into a bank account nominated by the applicant within three months from the date of the decision of the Court to strike the case out of the list pursuant to Article 37 of the Convention. This payment will constitute final settlement of the applicant's case."

32.  In his comments on the adequacy of the declaration, the applicant observed that the acknowledgement of a violation by the Government and the subsequent legislative changes which have been introduced availed him of nothing in Scots law. As a matter of Scottish criminal law, there would not have been sufficient evidence to convict him without the transcript of his police interview. The payment of just satisfaction did not open up the conviction in the Scottish courts. His appeal in the Scottish courts had been lodged in time, and should not therefore be caught by the prohibition on re‑opening of "closed cases" (the third issue in Cadder: see paragraph 24 above), which would be the effect of the declaration. Therefore, he would not be provided with a domestic remedy as a result of the proposed unilateral declaration. The Appeal Court case of Mark Chamberlain‑Davidson (see paragraph 29 above) showed that there was no guarantee that, if the applicant were to apply to the Commission, it would refer his case back to the Appeal Court. Finally, the unilateral declaration did not reflect the costs of making his application to the Court.

33.  In response to these comments, the Government pointed out that Cadder expressly allowed for the Scottish Criminal Cases Review Commission to refer cases back to the Appeal Court and it would be open to the applicant to apply to the Commission asking it to do so. It would be for the Commission to decide whether or not to make such a reference. Although the Appeal Court had the power to reject a reference, it had taken the view that it should do so only so in limited circumstances, such as when the Commission had demonstrably failed in its task; for example, by failing to apply the statutory test at all; by ignoring relevant factors; by considering irrelevant factors; by giving inadequate reasons, or by making a decision that is perverse (see the acceptance of the Commission's reference in M [R.M.M.] v. HM Advocate at paragraph 27 above). Since Cadder had been delivered, the Commission had made references to the Appeal Court, and the Appeal Court had accepted those references and quashed the appellants' convictions; it had done so in cases similar to that of the applicant (see again the substantive appeal in M [R.M.M.] v. HM Advocate at paragraph 28 above). A decision of the Commission not to make a reference could be challenged by way of a petition for judicial review. It was not appropriate for the Government to pre-empt the view that the Commission might take on any such application by the applicant or indeed, the view the Appeal Court might take if the Commission were to make a reference. While the Commission would be bound to consider the need for finality and certainty now contained in the statutory criteria for the making of a reference, it would be entirely for the Commission to consider how those considerations fell to be applied in the circumstances of the present case.

B.  The Court's assessment

34.  Article 37 of the Convention provides that the Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

"for any other reason established by the Court, it is no longer justified to continue the examination of the application".

In certain circumstances, the Court may strike out an application or part thereof under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued. To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey (Preliminary objection) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; Sulwińska v. Poland (dec.) no. 28953/03, 18 September 2007; Gołębiewska v. the United Kingdom (dec.), no. 43153/08, 17 May 2011).

35.  The Court is satisfied that it is no longer justified to continue the examination of it. The facts of the case are not in dispute. The remaining issue in this case - the failure to allow the applicant access to a lawyer when he was interviewed by the police and the subsequent use of his interviews by the prosecution at trial - has become the subject of settled case-law, both of this Court in its judgments since Salduz, cited above, and of the domestic courts since the Supreme Court's judgment in Cadder. The Government have accepted that, in the light of that case-law, there was a violation of Article 6 in the applicant's case. They have done so in clear terms.

36.  Indeed, the applicant's objection to the Government's declaration (and, consequently, the Court's striking his case out of the list) is not its lack of clarity, but that the declaration will not automatically result in the quashing of his conviction.

37.  However, in the present case, the same would be true if the Court were to deliver a judgment finding a violation of Article 6 in the case (a contrario, Hakimi v. Belgium, no. 665/08, §§ 26–30, 29 June 2010; Kessler v. Switzerland, no. 10577/04, § 32, 26 July 2007). It has always been the case that, following such a judgment in such a case against the United Kingdom, it has been for the relevant criminal cases review commission (the Criminal Cases Review Commission for England and Wales and Northern Ireland, the Scottish Criminal Cases Review Commission for Scotland) to decide whether to refer the case back to the criminal appeal courts so that the courts can to decide whether to quash the applicant's conviction. The Court would point out that whether such a reference should be made and whether, when a reference is made, the courts should quash the conviction are essentially matters for the domestic authorities and for the Committee of Ministers in its role in supervising the means by which a respondent State discharged its legal obligations under Article 46 of the Convention (see Dowsett v. the United Kingdom (no. 2) (dec.), no. 8559/08, 4 January 2011, concerning the refusal of the Criminal Cases Review Commission to refer the applicant's case back to the Court of Appeal, and Lyons and Others v. the United Kingdom, (dec.), no. 15227/03, ECHR 2003-IX, concerning the Court of Appeal's decision not to quash a conviction in case which had been referred to it by the Commission).

38.  There is nothing in the facts of the present case which would call into question the Court's rulings in Dowsett (no. 2) and Lyons and others. It is true that, as a consequence of the enactment of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010, when deciding whether to make references to the Appeal Court, the Scottish Criminal Cases Commission is now required to have regard to the need for finality and certainty in the determination of criminal proceedings. However, there is no evidence that, even guided by these new criteria, the Commission would refuse to give proper consideration to any application for referral which the applicant chose to make to it, not least because, if the applicant's submissions are correct, this case would not appear to be a "closed case" of the kind considered and declared inadmissible by this Court in Lang and Hastie, cited above.

39.  Similarly, although under the 2010 Act, the Appeal Court can reject a reference made by the Commission, the Court finds that, in light of the post‑Cadder case-law set out above, there is no evidence that, if such a reference were made by the Commission, the Appeal Court would fail to give it the consideration it deserved. Indeed, even the case relied on by the applicant - Mark Chamberlain-Davidson (paragraph 29 above) – shows the willingness of the Appeal Court to quash convictions on Cadder/Salduz grounds and even in the absence of a referral on that ground by the Commission.

40.  Finally, although the applicant has submitted that the Government's declaration does not cover the costs of his making an application to this Court, the Court is satisfied that the EUR 4,500 that the Government have undertaken to pay him to cover pecuniary and non-pecuniary damage and costs and expenses is an appropriate sum in this case.

41.  In view of the above, it is appropriate to strike the remainder of the applicant's case out of the list.

For these reasons, the Court unanimously

Decides to strike the remainder of the application out of its list of cases.

Françoise Elens-Passos                                                          Ineta Ziemele
            Registrar                                                                         President