A case that threatens to tarnish the credibility of Scots law has triggered a number of emergency meetings as members of the legal profession prepare for a looming crisis. Justice Secretary Kenny MacAskill last week held talks with the Law Society over the potential implications of a human rights challenge that is anticipated to force the re-examination of thousands of convictions.
It is expected that judges at the Supreme Court in London will rule later this year that the Scottish legal system breaches human rights by not giving suspects access to a lawyer during the first six hours before they are formally arrested. Lord Advocate, Elish Angiolini, said the decision on how police interview suspects could lead to “seismic change” requiring an emergency review of about 100,000 cases.
The Crown earlier this month issued guidance that suspects should now be advised they can have access to a solicitor when being questioned, in a move attempting to minimise the risk. Members of the society requested the meeting with MacAskill because they claimed the interim guidance was in “direct conflict” with the code of conduct for solicitors. A working group has now been established within the legal profession to try and cope with the new guidance.
Concerns remain about the practicalities of the change – including having sufficient lawyers properly paid, the length of the six-hour detention period, the impact on police questioning and the reputation of Scots law. Another concern raised has been the implications of getting lawyers to suspects quickly in remote parts of the country.
It is also feared the move could cost taxpayers tens of millions of pounds in increased legal aid bills. The Supreme Court case, which was heard last month, centres on the conviction of Peter Cadder, who was found guilty of two assaults and a breach of the peace in Glasgow, in part as a result of his answers in an interview without a lawyer present.
He appealed to the Supreme Court, challenging the way Scottish police can interview suspects and a decision is expected in October. Last year, after examining the treatment of teenager Yusuf Salduz by Turkish police, the European Court of Human Rights in Strasbourg ruled that access to a lawyer was part of the fundamental right to a fair trial. In England and Wales, suspects have had immediate access to legal representation since 1984.
The issue has previously been raised and last year judges in Scotland unanimously agreed there was no human rights breach because the law had in place a number of safeguards, including the right to silence. Following MacAskill’s meeting with the society last week, a Scottish Government spokesman said: “The meeting with the Law Society took place in the context of the Scottish Government’s ongoing preparation for all possible eventualities arising from the Cadder case and was a very useful and positive meeting. Both ourselves and the Law Society have agreed to continue to work closely over the coming weeks and months.
“There are a range of issues that need continued consideration, discussion and, if required, action. What everyone involved in the process is committed to is ensuring that our judicial system has the ability and freedom to pursue the judicial process in a way that is compatible not just with human rights but with the smooth and effective administration of justice.” The society held talks throughout the week and on Thursday agreed it would join a working group, which will also include the Crown Office, Association of Chief Police Officers in Scotland and Scottish Legal Aid Board, to look at how best to operate under the interim guidelines in the short term.
Jamie Millar, president of the society, said. “We understand why the interim guidelines were introduced, but in their current form they present practical difficulties for solicitors in their day to day work.
However, we are confident that by working together we can resolve any issues to ensure that the administration of justice continues to work in the interests of the public.”