Access to Solicitors while in Custody in Scotland

I wrote earlier this month about the Interim Guidelines issued by the Lord Advocate relating to suspects rights to access a solicitor while in police custody in Scotland.  Generally I agree with what is contained within these guidelines, however, there are a number of practical issues with them currently.

The rules governing solicitors’ practice in Scotland mean that solicitors are only able to take instructions directly from clients.  So this has caused problems for solicitors when being asked to attend a police station by a Police Officer.  While the Police Officer is making the request on behalf of the suspect, it is not coming directly from the suspect (i.e. the client).  This has lead to solicitors in the highlands boycotting the guidelines.  Lawyers in Glasgow almost followed the example of the solicitors in the highlands, however, the Glasgow Bar Association decided not to issue guidance.

It has been reported that there has been wide-spread disruption to custody suites across Scotland and has lead to calls by the Association of Chief Police Officers in Scotland (ACPOS) to request more time to question suspects in light of the interim guidelines.

The Law Society of Scotland (the body responsible for regulating the legal profession in Scotland) has also had issue with this and issued a letter to members (which can be viewed here) stating the following:

“The Society is of the view that the Lord Advocate’s guidelines infringe the Code of Conduct for Criminal Work, which states that instructions can only be accepted from the client directly.”

The above is not really the whole point of this post.  The point of this post is to look to the future.  This issue is not going to go away with the decision in Cadder v HMA still being awaited and due on 20 October 2010.  It is likely, in view of recent European Court of Human Rights (ECtHR) rulings that the current practices set out within the legislation governing Scotland’s criminal procedure will be held to be incompatible with the right to a fair trial afforded by the European Convention on Human Rights (ECHR), Article 6.

It would be in the best interest of the Profession for the Scottish Law Commission to begin looking at the issue and reporting back to Scottish Ministers by the end of the year.  This would allow all interested parties to have their say in the matter and for recommendations to be made to Ministers that are workable and have been consulted on.  We then need to see legislation being laid before parliament in time to be passed before the elections in May 2011 and coming into force after enough time has elapsed for the necessary procedures to be put into place.   This does seem like a very tight timeline, but it can be done and done properly.  Only this way can we be in situation that works and does not put solicitors at risk of breaching their Codes of Practice.

We do need to make changes to our Criminal Procedure in Scotland, it is not good practice to be detaining and questioning suspects without access to legal advice.  As I said in my last post, I do not for a minute believe that there is a problem of corruption in Scotland’s police forces.  Allowing early access to a solicitor can only be a good thing for justice.

Of course, if we do introduce the right to access legal representation into our Criminal Procedure fully and properly, it would only be right and proper to allow the Police more time to detain and question suspects for.  Adding in the right to consult a solicitor and seek legal representation is of course going to eat into the very tight time limits the police in Scotland currently have.