Following the decision of the UK Supreme Court in the case of Cadder v HM Advocate which held that the process in Scotland of detaining people for up to 6 hours in police custody without giving them access to a Solicitor was in contravention of Article 6 of the European Convention of Human Rights the law was changed to provide those held in custody with a right to consult a solicitor if they wish. The rushed manner in which the Scottish Government responded to the judgment of the Supreme Court has resulted in a significant number of problems, concerns and questions which were simply not dealt with in the legislation passed.
Over recent months problems have arisen in the provision of Solicitors to those detained in police custody. The Scottish Legal Aid Board (SLAB) is responsible for providing legal aid funding in Scotland for Civil and Criminal matters. The legal profession in Scotland has overwhelmingly refused to join the duty scheme brought into place by SLAB to provide sufficient coverage to ensure suspects can have access to a Solcitor. This has come amidst accusations that the SLAB system is “unfair” and “unreasonable”. Figures suggest that as many as 90% of the private criminal bar have refused to enter into the scheme. It has also been alleged that th eonly incentive to join the scheme is the threat that if not part of the scheme Solicitors would be unable to provide state funded legal advice at a police station for their client.
If a scheme is not in place that ensures that solicitors are readily availble to provide advice to suspects who request it then there could be a situation whereby Scotland is still failing to comply with its obligations under the ECHR. It is time that the Government got involved in the resolving of this row to ensure that anyone in custody who wants access to a solicitor can access one whether they can afford to pay for one or not.
Other problems that have been highlighted with the emergency legislation relate to the way in which the system works for children and vulnerable adults as well as if, when and how suspects can waive their right to having a solicitor. Some enormous issues that were not addressed as Parliament rushed the legislation through in one day in October 2010.
The Cadder debacle is likely to rumble on for months to come as the police station duty row continues and while we await the publication of Lord Carloway’s review into criminal procedure and evidence in Scotland.
The Information Commissioner is still considering an application for a decision over a Freedom of Information request sent to the Scottish Government looking at how the Government handled the drafting and passing of the emergency legislation last year. It has been just over two months since that application was made and hopefully a decision will be reached in the near future.