Supreme Court Considers Scots Law on Police Detention Powers
25th May 2010
The UK Supreme Court today begins hearing a human rights appeal that challenges the lack of a right to a lawyer when detained by the police in Scotland. As the law now stands, the police may detain a suspect for questioning for up to six hours without legal advice. Some critics say this breaches the European Convention on Human Rights, particularly Article 6, the right to a fair trial.
The case Is brought by Peter Cadder, a Scotsman who was convicted of assault partly for answers he gave in police interview before legal advice.
Last year the Scottish Criminal Appeal Court ruled it was not a violation of human rights. However, human rights watchdog, Justice, argues this may lead to miscarriages of justice.
This case shares similarities with the Turkish case of Yusuf Salduz, a teenager who was who imprisoned for two-and-a-half years for participating in an unlawful protest. While in custody he was interrogated. However, he later claimed duress and won an appeal before the European Court of Human Rights.
The Grand Chamber of the European Court of Human Rights has states that a suspect is entitled to a lawyer at the outset of interrogation unless there exist compelling reasons to the contrary.
However, Scottish Appeal Court Judges, Lord Hamilton (the Lord Justice General), Lord Gill (theLord Justice Clerk), Lord Osborne, Lord Kingarth, Lord Eassie, Lord Wheatley and Lady Paton, ruled that Scots law provides adequate safeguards to protect the interests of the suspect during detention. In other words, the Scottish form of police detention is proportionate.
For example, in Scotland, a statement given by a suspect during interview is usually not enough on its own to secure a conviction, and corroboration (evidence from some other source) will also be necessary. By contract, although in England a suspect does have the right to a lawyer from the outset, nonetheless a statement alone is enough to secure a conviction — there is no need for corroboration. Moreover, in England the policy may detain a suspect for up to 24 hours.
Only five European nations, namely Scotland, Ireland, France, Belgium and the Netherlands, do not give suspects the right to a lawyer.