Scots legal upheaval as 3500 convicts win new appeals

ALMOST 3,500 criminals plan to appeal their conviction after a Supreme Court judgement triggered sweeping changes to Scottish law.

The Scottish Government will this week rush through emergency legislation doubling the maximum time a suspect can be held without charge in response to the UK's highest court ruling over the rights of suspects to legal representation.

The ruling found that the Scottish system allowing people to be held for six hours without access to a lawyer was aimed at making it more likely they might "incriminate" themselves under police questioning and breached European Human Rights laws.

The ruling was prompted after an appeal brought by Peter Cadder, a 20-year-old Glasgow man who was convicted at Glasgow Sheriff Court of two assaults and breach of the peace last year in part as a result of his answers in an interview without counsel.

Solicitors anticipating the result have highlighted 3,471 convictions they believe are now unsound, and which could come before the Court of Appeal in Edinburgh.

Of those, 15 are crimes of the most serious nature which were heard in the High Court, while 105 were considered serious enough to require a sheriff and jury trial. The rest were minor offences.

The Supreme Court initially said 76,000 convictions could be affected. However, by ruling that their judgement does not apply to closed cases they have effectively capped the number at 3,471 - those already raised by solicitors which are therefore considered live. In particular, the ruling casts doubt on rape, sexual assault and domestic violence convictions which have not been witnessed by a third party, and therefore have less corroborative evidence than crimes committed in public.

In their ruling, the Supreme Court judges said it was "remarkable that, until quite recently, nobody thought that there was anything wrong with this procedure" of questioning suspects without their lawyer present. "There is no room, in the situation which confronts this court, for a decision that favours the status quo simply on grounds of expediency," the judges said.

• Background: Making the case for a lawyer to be present

• The arrest and questioning process

• Analysis: Sea change in way suspects treated

"The issue is one of law. It must be faced up to, whatever the consequences."

The ruling will see the Scottish Government's legal aid bill rise by between 1 million and 4m a year at a time when it is trying to cut costs and could lead to a need for more police cells if suspects are held for longer.

The time a suspect can be held without charge will rise from six hours to 12 under the new legislation, although this could be extended to 24 with the approval of an inspector who is not involved in the case.

The bill, which is to be debated in Holyrood today in the hope of receiving Royal Assent by Friday, was brought through so quickly that it did not even have a full name yesterday.It will be known as the Criminal Procedure Scotland Act.

Meanwhile, Lord Carloway, one of Scotland's senior judges, has been asked to carry out a broader review of Scots Law, covering areas such as the importance of corroboration - independent, secondary evidence - in securing a conviction, which could lead to more legislation going through in 2011/12.

Justice secretary Kenny MacAskill revealed he had approached Lord Chancellor Ken Clarke for assistance, as UK laws are not as open to challenge as Scottish ones, but the UK Government chose not to intervene.

He said: "It is a decision we did not seek but it is one to which we must respond.

"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.

"We are concerned the current devolution arrangements have created an anomaly that seems to put Scottish law at a disadvantage. I want to see steps taken to address this anomaly."

He said he had asked Lord Carloway to look at areas such as "whether any inference can be drawn if a suspect remains silent" and "requirement of corroboration", as "speedily as he can".

Lord Advocate Elish Angiolini, who introduced interim guidelines ensuring suspects are always provided with lawyers after the Cadder case was brought earlier this year, said: "Unlike any other jurisdiction in Europe, Scots Law requires two sources of evidence to support each essential fact in a prosecution.

"This rule of 'corroboration' presents a further challenge to prosecution in Scotland.

"It must be ensured that the convention rights of victims to have 'effective criminal sanctions in place' are maintained where their human rights are flouted by the criminal actions of another."

Neil Hay, solicitor advocate at MTM Defence Lawyers, in Falkirk, said he has up to 300 cases which could be affected by the ruling, 100 of which he would expect to be dropped altogether because of it.

He welcomed the ruling, adding: "The system now is fairer to the general public than it was before. When people are interviewed by police, they are interviewed by professional interrogators.

"Very often they say what they think the interrogators want to hear. This is a safeguard against false decisions."

The Scottish Human Rights Commission also welcomed the court's decision, but raised concerns about the speed with which new legislation is being brought. Professor Alan Miller, chairman of the commission, said: "This is no time for emergency legislation as there is no emergency. The floodgates have not been opened - this decision clearly does not apply to concluded cases.Rather, Now it's time to get it right, and we have the time to get it right."

Scotland's police, already anticipating major funding cuts and a change to the eight-force structure, face new challenges in light of the judgement, both in terms of building a case against a suspect, and providing the additional capacity and staffing needed to hold suspects for longer.

They will tell the Scottish Government how much it expects this to cost over the coming days.

Chief Constable David Strang, the Acpos lead on criminal justice, said: "There will be significant implications on police budgets and Acpos will be discussing funding options with the Scottish Government."

Mr MacAskill said he has already held talks with the opposition parties' justice spokesmen, and expects the emergency legislation to be supported through parliament.

There was no comment from Mr Cadder's legal representatives.