Lord Hope in Cadder was wrong

Lord Hope in Cadder was wrong

In the Cadder case the question arose:

Should this court follow Salduz?

“The starting point is section 2(1) of the Human Rights Act 1998, which provides that a court which is determining a question which has arisen in connection with a Convention right must "take into account" any decision of the Strasbourg court. The United Kingdom was not a party to the decision in Salduz nor did it seek to intervene in the proceedings…And in R v Horncastle [2009] UKSC 14, [2010] 2 WLR 47 this court declined to follow a line of cases in the Strasbourg court culminating in a decision of the Fourth Section because, as Lord Phillips explained in para 107, its case law appeared to have been developed largely in cases relating to the civil law without full consideration of the safeguards against an unfair trial that exist under the common law procedure".

“The requirement to "take into account" the Strasbourg jurisprudence will normally result in this Court applying principles that are clearly established by the Strasbourg Court. There will, however, be rare occasions where this court has concerns as to whether a decision of the Strasbourg Court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to this court to decline to follow the Strasbourg decision, giving reasons for adopting this course. This is likely to give the Strasbourg Court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between this court and the Strasbourg Court. This is such a case”.

Lord Hope was wrong in relation to his starting point.

The starting point is Articles 1, 2 and 3 of the Treaty of London 1949 (Statute of the Council of Europe). The next step is Articles 44(1) and 46(1) of the Convention.

Article 44(1) “The judgment of the Grand Chamber shall be final”.

Where does it state that there is a discretion to only take into account the judgment and discretion to ignore it?