Scottish suspects to get instant legal access

Under existing Scottish legislation, a suspect in the country can be held for an initial six hours without legal representation. But a ruling was passed today to change this practice under the European Convention on Human Rights (ECHR).

The situation in Scotland has been different from that in England and Wales, where an accused person is granted automatic and immediate legal rights to a lawyer.

The ruling found that the practice in Scotland was aimed at making it more likely a suspect might “incriminate” themselves under police questioning, without a lawyer present.

“The decision overturns decades of criminal procedure in Scotland.” Scottish Justice Secretary Kenny MacAskill

The judgement stated: “The ECHR requires that a person who has been detained by the police has the right to have access to a lawyer prior to being interviewed.”

Scottish suspects will now be granted immediate access to a lawyer, once the changes have gone through the Scottish parliamentary system. It will also lengthen the amount of time suspects can be held, from six hours to 12, possibly up to 24 hours at the request of police.

Peter Cadder case
The decision was made after judges upheld an appeal by teenager Peter Cadder, who was convicted based on evidence given before he spoke to his lawyer. He was convicted of assault in Glasgow in 2009.

His lawyers argued, successfully, that this was a breach of his human rights and the decision led to today’s ruling. Because it is retrospective in Mr Cadder’s case, there are concerns it could also affect hundreds of other cases where suspects were convicted on evidence gained while they did not have legal representation, and it could lead to widespread appeals.

The Scottish government estimated today that up to 3,400 cases could be affected.

But the judgement did find that cases which had already been dealt with by courts and not appealed should not be reviewed.

It added: “The Scottish Criminal Cases Review Commission must make up its own mind, if it is asked to do so, as to whether it would be in the public interest for those cases to be referred to the High Court.”

Emergency legislation
The Scottish government said it would make “swift legislative changes”.

Justice Secretary Kenny MacAskill said: “With Parliament’s support we will be making swift legislative changes to protect the victims of crime and safeguard communities…it is a decision we did not seek but it is one to which we must respond.

“The decision overturns decades of criminal procedure in Scotland, a proud, distinctive, justice system, developed over centuries and predicated on fairness with many rigorous protections for accused persons.

“It is rightly admired by other jurisdictions. This issue is about legal advice at one step in the investigatory process.”

He said the changes would see an increase in the legal aid bill by between £1m and £4m.

He also announced that Lord Carloway, a senior High Court judge, will carry out a review of Scottish criminal law following today’s decision.