New laws may land Scotland back in dock, warns human rights chief

Published on 28/10/2010 18:42

SCOTLAND risks a humiliating return to the Supreme Court because of the way contentious new justice laws covering the questioning of prisoners have been written, the country's human rights tsar has warned.

Professor Alan Miller, chairman of the Scottish Human Rights Commission, has criticised legislation rushed through Holyrood in under six hours on Wednesday, following a ruling all suspects must have access to a solicitor in police interviews.

He fears there are legal loopholes and elements open to interpretation, which could expose Scots Law to further challenges in the Supreme Court.

The Supreme Court ruled that Peter Cadder, now 20, who was convicted of two assaults and a breach of the peace in Glasgow Sheriff Court, on the basis of admissions made in police interview last year, should be allowed to appeal his conviction because he was not given access to a solicitor.

Prof Miller had urged MSPs to vote against the Criminal Procedures (Detention, Legal Assistance and Appeals) (Scotland) Act, when it was debated in the Scottish Parliament.

"Right of access to a lawyer by someone detained has to be practical and effective," he said. "If the legislation allows access to a lawyer to be diluted to a telephone call, especially in circumstances where the lawyer may not have adequate information about the circumstances, that may give rise to a challenge."

He also has concerns about the different rules for exemptions in Scots Law, compared with the European Convention on Human Rights.

Prof Miller said: "Another area where there's a real risk is that police can decide not to allow access, where it's in the interest of the investigation or the prevention of crime.

"The convention is clear that you should provide access unless there are compelling reasons not to."

The Scottish Liberal Democrats share Prof Miller's concerns about both areas, and they put forward amendments to the bill to tackle them, but were voted down.

Robert Brown, Lib Dem justice spokesman, said: "I am very worried that the inadequate scrutiny of this important legislation will lead to significant and unnecessary problems in the future."

The Glasgow Bar Association is debating the implications of the Cadder judgement today.

A spokesman for the Scottish Government said: "We are confident that the legislation complies with the law of Scotland and the European Convention. It was found to be compliant by the law officers and the Presiding Officer.

"The police are obliged to observe a human right, and it is not envisaged, for example, that anyone charged with a serious offence will rely solely on telephone advice. In these cases, we would expect solicitors to follow up an initial phone consultation with a police station visit."Offering an initial counsel by telephone will help to protect an individual's human rights, by ensuring they do not waive their right to a solicitor in an attempt to quicken the process. The exemptions for when a solicitor does not have to be provided are consistent with the example offered by the UK Supreme Court."

A Crown Office spokeswoman said: "The Crown will continue to work with the Scottish Government to ensure that the Scottish criminal justice system can comply with the judgment of the Supreme Court in a manner that is both fair and effective."