BREAKING NEWS: Scottish detention procedure is unlawful

Today their Lordships in the United Kingdom Supreme Court unanimously held that the procedure in Scotland that allows an individual to be held in police custody for up to 6 hours without access to a solicitor is unlawful.

Sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995 allow the police to detain a person who they has reasonable grounds for suspecting has committed or is committing an offence punishable by imprisonment. This detention can last up to six hours. During detention, the police may question the detainee, although the detainee does have the right to remain silent and he is to be informed of this at the time of his arrest. The detainee is entitled to have a solicitor informed of his detention. However, the detainee has no right to consult with that solicitor prior to interrogation by the police or to have a solicitor present while the police are questioning him. The question before the court was whether this amounts to a breach of the right to a fair trial, recognised in Article 6(1) and 6(3)(c) of the European Convention of Human Rights (ECHR).

Their Lordships held, applying the decision in the European Court of Human Rights in Salduz v Turkey that this was unlawful.  However, they did not give their judgment retrospective effect.  In other words where a case, including all appeals has been concluded, the judgment is unlikely to have any impact.  Where it may have an impact is in cases currently before the Courts or yet to go before the courts.  Whether the Lord Advocate’s energy guidelines will have had an impact in this area or not remains to be seen.

The Scottish Government is probably going to be publishing a statement relating to the decision of the Supreme Court later today and I suspect that the Crown Office will also make or issue a statement later today.

Once I have had time to digest the judgment of their Lordships I will comment more fully on the case.

The press summary can be read here and the full judgment of their Lordships can be read here

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3 thoughts on “BREAKING NEWS: Scottish detention procedure is unlawful

  1. Hi there. I’m also a law student (1st Year) at the University of Stirling. Couldn’t help but smile at your post about rushing around trying to hand in your essay. I can only imagine that horrible sinking feeling that you felt on the train when you realised that you have to hand in an electronic copy. I completely understand the frustration of looking for a computer that isn’t being used in the library – it’s dire.

    I was sitting waiting for the decision of the UKSC on this one after my mum mentioned hearing about it on the news. I can’t help but feel that this decision was correct. It does seem underhanded and unjust for the police to be able to question a person before they have had any advice from a legal professional. But, I’m glad that their Lordships said that it will have no retroactive effect – that will settle a lot of nerves.

    • It’s nice to hear from you. While I am a second year LLB student at Stirling I am on a slightly different LLB programme to most (due to circumstances that are well documented on here). Two out of my three modules this semester are first year modules, so if you’re LLB you’ll probably be in some of my lectures.

      It was very much the correct decision to make. While Scotland has rules about corroboration of evidence (which extends to confessions), unlike many other jurisdictions, this does not (as their Lordships pointed out) go far enough to guarantee the rights of a suspect.
      The Lord Advocate issued emergency guidelines in May on the matter, which in itself caused huge problems within the profession as they were issued without prior consultation with the Law Society of Scotland. They risked putting solicitors in breach of the Solicitors’ Code of Conduct over the taking of instructions.

      Hopefully as the legislation passes through Parliament over the next few days the problems will have been ironed out behind the scenes over the past few months. I don’t think anyone seriously thought that the UKSC would hold something different to what it did today so I would be surprised if there has not been a lot of behind the scenes preparation going on anyway.

      Lord Carloway’s review of Criminal Procedure and Evidence could produce some interesting recommendations regarding the system. We are living in some interesting times so far as our Criminal Justice System is concerned.

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