Wednesday, 25 July 2012

Restoring Liberty? (2010)


Imogen Michel, Restoring Liberty?’ The Student (Edinburgh), 2 November 2010



Until this week, if you were detained by police in Scotland then you could have been questioned for up to six hours without the right to take legal advice or have a lawyer present at interview. This was in sharp contrast to the rest of the UK, and indeed the vast majority of Western Europe, where you have the right to request a lawyer as soon as you have been arrested, and you have the right to have a legal representative sit with you whilst you are questioned by police. However, this week emergency legislation was passed which finally brought Scots law in line with the European Convention on Human Rights (ECHR) on this issue.


Critics have provided many responses to the new Criminal Procedure (Scotland) Act, which was passed by the Scottish Parliament on the 27th October 2010, having passed all three stages (which would normally take months) in just one afternoon.  This followed a judgement in the UK Supreme Court the day before on the case of Peter Cadder, a fourteen year old boy convicted of assault in Scotland in 2007 based on admissions he made at interview without a solicitor present. Journalists, lawyers and shadow politicians all claimed that this would open the floodgates for appeals by undermining previous convictions and result in many millions of pounds being paid out in compensation to those convicted on evidence garnered during police interviews where the suspect was denied access to a lawyer. It was also suggested that the Scottish legal aid bill would increase as more detainees become entitled to legal representation.

These are certainly real concerns. The government need to be careful where it chooses to put its money, and taxpayers are likely to be uncomfortable with the idea of their money being used to overturn convictions and pay out compensation to those who have previously been found guilty of a crime under Scots law. However, I would suggest that these are necessary steps to take in order to uphold the basic human rights of police suspects in Scotland, whose rights to access to a lawyer upon detention and against self-incrimination have been neglected for so long.

So why does the right of access to a lawyer matter? In the ECHR, right of access to a lawyer is a key part of the right to a fair trial (Article 6), as having a solicitor present means that the suspect can be advised of their rights whilst in detention and at interview, whether they have a case to argue in their defence, and ensure that the suspect fully understands the implications of what is being said at interview. This is especially important when you consider that a large number of people who are detained by the police may be vulnerable in some way, whether this be that they use drugs or alcohol, have some form of mental illness or learning difficulty or are still young and do not fully understand the legal system. Having a solicitor present, who is paid to look after the suspect’s interests and must necessarily have a good understanding of the legal system and its wider implications, ensures that the interview is fair to the suspect.

Even before now, many groups and individuals have pointed out the fact that Scotland has been out of step with human rights in this area and that the lack of a right of access to a lawyer contravenes the ECHR. Most notably, in 2005, the European Committee for the Prevention of Torture (ECPT) produced a report which negatively commented on the Scottish situation in regards to a suspect’s right to access to a lawyer, emphasising the very real importance of access to legal representation in the prevention of ill-treatment and intimidation by the police of the suspect. Whilst in the UK the threat of violence or harassment against a suspect by the police is mercifully small, in other countries the absence of the presence of a solicitor has almost certainly allowed police to brutalise or threaten a suspect into a confession. This was the case argued in 2008 in Salduz v. Turkey at the European Court of Human Rights, where Salduz claimed that the police interviewed him without a solicitor present and extracted a confession from him under duress after being arrested on suspicion of attending a protest in support of an imprisoned leader of the Kurdistan Worker’s Party. The case was upheld in favour of Salduz, and the judgement made absolutely clear that, unless there are very good reasons for not doing so, to deny a suspect access to a lawyer whilst in detention was a breach of the suspect’s human rights. Whilst we are fortunate in Scotland to not live in fear of arrest and intimidation for merely attending a political protest, this right to access to a lawyer needs to apply to everyone, not just in those countries such as Turkey where other human rights are perceived to be more at risk.

There is one especially problematic criticism of the new law that has been brought in this week, however. As mentioned earlier, the new Criminal Procedure Act (Scotland) was brought through the Scottish parliament incredibly quickly, as emergency legislation. Critics have claimed that there is no emergency, and that hasty law-making can produce both anomalies and injustices within the legal system as the act will not have undergone sufficient consultation and scrutiny before being passed. They are of course correct in many ways, and the manner of the passing of this legislation is certainly not ideal. But as Lord Hope, the Deputy President of the UK Supreme Court, said last week in his summing up of the Cadder case, although there will inevitably be ‘profound consequences’ of this decision, the need to reform the right of access to a lawyer in Scotland ‘must be faced up to, whatever the consequences’, rather than ignored on grounds of expediency.

It would of course have been far better for this new law to have been debated fully, over the normal length of time for such legislation, rather than in one day. However, as has been argued, upholding the human rights of suspects in police custody is vitally important in gaining a fair trial where the verdict will stick. The perception that this new law will mean many cases have to be reopened at a high cost to the taxpayer may cause some resentment, but if the evidence which led to that conviction was unsound and in contravention of the defendant’s human rights, in the interests of justice it is necessary to rectify this situation.

For a system of justice to work, and to gain the respect of the people to whom it applies to, it is vital that all those suspected of a crime are given a fair trial, and that their human rights are respected. Scotland has finally made a step in this direction, and whilst it is early days yet, and the step is a shaky one, this step comes better late than never.

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