'Parochial' Scots defend interrogation of suspects without legal representation
Scots law has been undermined by the Supreme Court's decision to outlaw solicitor-free police interviews, according to first minister Alex Salmond.
Scots law has been undermined by the Supreme Court's decision to outlaw solicitor-free police interviews, according to first minister Alex Salmond.
Academics and lawyers from across Scotland have welcomed the court's ruling. 'The lack of access to a defence solicitor during detention was largely about saving money and giving the police the opportunity to get a confession out of the accused before arresting him,' said Peter Duff, professor of criminal justice at Aberdeen University.
But leading politicians from all main parties have pushed the human rights argument to one side, instead branding the judgment an attack on the integrity of the country's justice system, which they say was perfectly equipped to cope with any potential injustices thanks to an array of well-established safeguards.
SNP justice secretary Kenny MacAskill said: 'The decision overturns decades of criminal procedure in Scotland, a proud, distinctive, justice system, developed over centuries, and predicated on fairness with many rigorous protections for accused persons.'
In an earlier letter to the Advocate General, Lord Wallace, SNP leader Salmond wrote: 'The devolution settlement did not envisage the Supreme Court acquiring such a degree of jurisdiction in relation to criminal matters.
'It is a central part of our distinctive Scottish legal system that the High Court should be the highest criminal authority in Scotland '“ but the devolution arrangements of 1998 seem to have unwittingly undermined this.'
Scottish Conservative justice spokesman John Lamont said: 'Once again the ECHR is looking after the interests of the criminals rather than the rights of the law-abiding majority.
'All right-minded people will be angry and disturbed that a freely-given confession, by someone of sound mind, taped and witnessed, can no longer be used as evidence in a court of law.'
And the Scottish Labour Party's justice spokesman, Richard Baker, added: 'The cornerstone of Scottish justice itself, which is the corroboration of evidence, will need to be examined.'
In a unanimous decision, handed down last week, seven justices held that allowing police to interview suspects for the first six hours without the presence of legal representation was in breach of their right to a fair trial.
Lord Hope, giving the leading judgment, said: 'It is remarkable that until quite recently nobody thought that there was anything wrong with this procedure.'
The case of Cadder v Her Majesty's Advocate (Scotland) [2010] UKSC 43, challenging a young man's conviction on the basis that he made admissions of guilt while in a police interview without legal representation, is estimated to have an impact on thousands of live cases.
Lord Roger said: 'In my view there is not the remotest chance that the European Court would find that, because of other protections that Scots law provides for accused persons, it is compatible with article 6.
'Strasbourg has spoken: the courts in this country have no real option but to apply the law which it has laid down.'
Professor Ed Cape, director of the centre for legal research at the University of the West of England, added: 'Some of the views being expressed in Scotland, such as those by the first minister, are very parochial. It has nothing to do with the devolution settlement, and everything to do with ensuring that the right to fair trial is respected, and that the police are held to account.'
Emergency legislation has been pushed through Holyrood as MSPs scrabble to adhere to the ruling and the government will now need to find funds for the additional legal aid bill.
Criminal defence lawyers have warned there is no infrastructure in place to manage an immediate change in procedure, arguing it will put them on call 24 hours a day.