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.