Pending a decision by the Supreme Court of the United Kingdom in the case of Cadder v HMA, the Lord Advocate has issued interim guidance to the eight Chief Constables in Scotland on allowing suspects access to solicitors prior to interview and charge. Having had a very brief read of the guidance it would appear to be heavily based upon the rights of suspects in relation to legal advice and representation contained within the Police and Criminal Evidence Act 1984 (PACE).
The question before the Supreme Court has been considered several times before by the High Court of Justiciary, and on each occasion the High Court of Justiciary has found the system to be compatible with the European Convention on Human Rights (ECHR). However, following a decision by the Grand Chamber of the European Court of Human Rights (ECtHR) in the case of Salduz v Turkey, the matter relating to whether a suspect being denied access to a solicitor prior to or while being interview by the police is a breach of their human rights under article 6 of the ECHR the question has been put to the Supreme Court of the United Kingdom.
The arguments were heard by the court between 24 and 26 May 2010, however, the Supreme Court has indicated that its decision on the matter will not be made until 20 October 2010. This puts outstanding criminal prosecutions in jeopardy should the Supreme Court find against the Crown. In order to try and remedy this situation, the Lord Advocate has issued guidance to the profession and the Chief Constables within Scotland on suspects’ rights to access legal advice before and during an interview with the police.
The Lord Advocate has been clear that these guidelines are not an attempt to pre-empt the decision of the Supreme Court, but are a measure to protect prosecutions that are currently outstanding and those that will be brought in the period until the Supreme Court delivers its ruling on the matter. However, in view of the decision of the Grand Chamber of the ECtHR in 2008, it is difficult to see how the Supreme Court can do anything but hold that the current position is a breach of a suspects human rights.
The Lord Advocate has also advised that there may be changes made to the guidelines following the decision of the Supreme Court. This is of course assuming that the Scottish Parliament do not push something through Parliament in the meantime to enshrine the right to access a solicitor prior to interview into Scottish Criminal Procedure. This is something which, in my humble opinion, is long overdue.
The vast majority of our police officers are decent people trying to do a very difficult job and are not corrupt. These guidelines shouldn’t simply be brought in to try and deal with corruption (like PACE was). It simply means that suspects get access to legal advice and representation a lot quicker than under the current system and that can only be a good thing for justice.
I’m not a fan of trying to bring PACE in its entirety into existence within Scottish Criminal Procedure; a lot of it is pointless and cumbersome. Those working within the profession and in the Police in England will, I’m sure, be all too happy to confirm that. However, there are certainly good aspects to it that we can bring into Scottish criminal procedure which will make the system fairer.
The Lord Advocate’s guidelines can be found here. They came into force on 9 June 2010 for homicides (including drug deaths); Attempted murder and offences of serious violence; All sexual offences (including historical allegations) Road traffic fatalities where such fatality is believed to have been caused by a contravention of the Road Traffic Act 1988; and All other cases which are likely to be prosecuted in solemn procedure. For all other offences they come into force on 8 July 2010. So, for a large proportion of those arrested by the Police, access to a solicitor should be provided in accordance with these guidelines already and for those that are not yet covered with it I’d imagine the Police would still be keen to provide them with access to a solicitor anyway.