In just over a month we are expecting the Supreme Court to issue its judgement in the case of Peter Cadder v Her Majesty’s Advocate.  This is the case that sparked the emergency guidelines by the Lord Advocate relating to access to a solicitor while in police custody and which has caused a divide in the profession regarding certain parts of the emergency guidelines contravening the Solicitor’s Code.

There have been some interesting discussions surrounding the case, and for most people appear to be of the view that the eventual decision by the Supreme Court is quite clear.  In order to comply with decisions from the European Court on Human Rights in Strasbourg it is highly likely that the Crown will lose this case.  This will most likely mean changes being required to the Criminal Procedure (Scotland) Act 1995 and to the Solicitor’s code.

Regardless of whether the Supreme Court upholds the appeal or not, changes should be made to criminal procedure in Scotland to allow access to a solicitor.  I have said it before, and I will say it again, I do not believe this is needed because our police are corrupt or do not follow the law when investigating criminal activity.  Of course, there is the odd one or two within our police forces who break or bend the rules, but this is not something that is confined to the police and every profession has individuals who do not act within the rules.  They should be dealt with according to that professions rules and regulations (and the law where applicable), but should not be thought of as the norm.

Being in police custody can be a confusing and intimidating time (well, for those who are not in there every other day that is) and as such in the interests of fairness and justice suspects should not only be entitled to consult a solicitor while in custody, but to have one present during any interview by the police.  This does strengthen the position of the accused greatly as it allows them the opportunity to seek a qualified legal opinion at any time throughout their detention.  It also opens the evidence that the police have up to early scrutiny.  Is the evidence the police have really enough to take the case forward to court?  Now, of course the only right and proper people to make this decision is the Procurator Fiscal.

Now the time that the police in Scotland currently have to question a suspect and to take a decision on whether to charge or release the accused is very short in comparison to other areas of the United Kingdom.  It is probably adequate based on our current criminal procedure.  However, if you are starting to factor in time waiting for solicitors to turn up and have a private consultation with their client it would be insufficient to ensure that the police can properly question a suspect.  So, in the interests of fairness and justice the length of time the police have to hold a suspect before either charging them or releasing them will also have to be increased to allow for access to a solicitor.  How long that should be is a question that will need to be looked at very carefully indeed and is one to be answered at a later date.

Now all of this I have said before.  However, as I have being giving thought to the predicament the outstanding judgement in Cadder v HMA has placed us in I thought about the opportunity we have the fix the problems within our criminal justice system, close loopholes that exist and simply improve it so that it is better able to provide fairness, justice and compassion.

We know where the loopholes and problems are within the system.  The Criminal Procedure (Scotland) Act 1995 has been around for 15 years or so now and our practitioners have become used to working in the system.  Ask any criminal lawyer and I am sure they would be able to suggest improvements, identify loopholes and problems within the system:  they will be there as no system is perfect.  However, this should not stop us from aiming to have a perfect criminal justice system.  We must not let this opportunity pass us.  The Scottish Government have indicated a change in the law on double Jeopardy this is something that could be included in a new criminal procedure bill – let’s reform the system and have it all in the one places instead of dealing with individual issues separately and passing more legislation than is needed.  The SNP have got it right in this area:  a Government should not be judged on the amount of legislation it passes, but instead the quality of the legislation it passes and the effect that legislation has on the country.

I am not suggesting that our criminal justice system is totally broken and urgently requires fixing.  All I am suggesting is that we have a number of issues within the CJS in Scotland that we have to address so let’s address the others as well.

I continue to wait with anticipation for the decision of their Lordships in this case before the supreme court, as I’m sure many of my readers are also.

• Criminal Justice
• Criminal Law
• Legal System
• Scots Law