Human rights ruling puts thousands of prosecutions under threat

In Scotland, an accused person has no legal right for a lawyer to be present when questioned by the police, unlike the position in England.

But a ruling by the European Court of Human Rights (ECHR) – that preventing a lawyer from attending a police interview is a breach of a person's right to fair trial – has caused a flurry of challenges from defence lawyers.

The ruling also raises the possibility that convictions in rape, domestic abuse and other cases could be overturned. And it may force the police to overhaul the way interviews are carried out.

The ECHR decision has led one criminal case in Forfar Sheriff Court being delayed, after the sheriff decided to refer the admissability of evidence obtained during police questioning where no lawyer is present to a panel of High Court judges.

Meanwhile, cases in other courts across Scotland are being challenged on the same legal point.

Neil Hay, of MTM Defence Lawyers in Falkirk, has already launched a challenge in a domestic abuse case that had been due to go to trial at the town's sheriff court on Tuesday. The trial has now been adjourned pending a legal hearing next month.

He said he was "sifting through hundreds of cases" to see which others could be thrown out, if the ECHR ruling is deemed to apply in Scotland.

Mr Hay said: "The ruling by the Grand Chamber of the European Court of European Rights is no longer distant thunder – the storm is already here.

"It could 'knock out' police interview evidence in criminal cases across Scotland and appears to be on a collision course with traditional Scottish criminal procedures."

He said it was likely challenges will ultimately be heard by the Privy Council. If upheld, a string of convictions which relied on such evidence could be deemed miscarriages of justice.

He said criminal cases currently under way would be the "first division" to be affected by the ECHR ruling.

"The second division are those that have already resulted in a conviction, in many cases where the accused is already in jail."

Under section 15 of the Criminal Procedures (Scotland) Act 1995, anyone held in police custody has the right to inform a lawyer of their detention – but no right to have the lawyer present during questioning.

But prosecutors argue that the law in Scotland is fair as police are obliged to inform an accused that they do not have to answer any questions.

John Scott, the vice-president of the Society of Solicitor Advocates and a human rights lawyer, said he had long been concerned about the refusal of police to allow lawyers to be present during questioning.

"This is near-universal practice throughout Scotland and is now being challenged in most of our courts."

The European court upheld an appeal from a Turkish man, Yusuf Salduz, who claimed he was unfairly denied the presence of a lawyer when questioned by police about taking part in a banned political rally.

A spokesman for the Crown Office said criminal procedure in Turkey was "radically different" from Scotland.

"Objection has been taken to the interview procedure in a number of cases, and in one case the sheriff at Forfar has, at the request of both the Crown and the defence, referred the question to the High Court for an authoritative decision. A hearing before three judges will be heard at a later date still to be fixed."