Hundreds of criminal cases have been kept on hold for months awaiting the Court’s decision on whether the Scots law practice of detention and arrest was lawful.Leanne Gordon reports on a far reaching Turkish case whose impact in Scotland is still being assessed.

The freedom of police officers to question criminal suspects without a solicitor being present is being challenged as a contravention of a person’s basic human rights. An ongoing human rights case working its way through the Scottish legal system has the potential to force massive changes to the Scottish system of policing, and may be one of the first from Scotland to exercise the new UK Supreme Court.

The absence of a solicitor’s legal expertise and guidance during the initial police interview is one of the biggest anomalies between the Scottish legal system and that of its southerly neighbour. The case of Salduz v Turkey from the European Court of Human Rights is threatening to revolutionise the treatment of crime suspects arrested by the police, or at least bring it in line with the standard level of human rights that is expected elsewhere. It’ll surprise many Scots who find themselves on the wrong side of the law to be told they have no automatic right to a solicitor during the hours they spend detained and questioned.

Yusuf Salduz, a 17-year-old Turkish national, challenged his conviction after he was arrested and interviewed by police and subsequently a judge before he was allowed to see a lawyer. The teenager was convicted of taking part in an illegal demonstration and hanging an illegal banner.

His conviction rested largely on a statement signed during the police interview despite Salduz later renouncing it as a confession obtained while under duress. The judges at Strasbourg ruled that the Salduz’s human rights had been violated, specifically his article six right to a fair trial. The Grand Chamber of 17 judges said a lawyer must be present from the first police interview unless there are “compelling” reasons to restrict this basic right. Even where those reasons are compelling, the suspect’s rights under article six must not be prejudiced.

In many countries, including in England, Salduz v Turkey would have been registered with a flicker of interest and filed away in the ‘case law we already ascribe to’ drawer. In Scotland, where six hours of lawyer-free detention is routine, the situation has not been quite so clear cut.

Lawyers and their clients have bene keeping a keen eye on the progress of the case of Donald McLean who argued that his trial was a contravention of human rights under Salduz. Forfar Sheriff Court relayed the case to the Appeal Court for a decision from the higher echelons of the judicial supreme. They in turn considered it appropriate to seek a decision from a bench of seven judges. Earlier this month the appeal judges rejected the challenge, ruling that the absence of a solicitor was not an abuse of the accused’s rights.

McLean’s lawyers have now signalled their intention to take the case to the new Supreme Court.

When the Scotland Act was fresh on the statute books, and human rights became a tangible force to be reckoned with, police officers predicted a change to the practice of interview without representation, says John Scott, criminal vice-chair of the Society of Solicitor Advocates.

“People in Scotland other than criminal lawyers don’t realise quite how backwards our law is in this area. People will assume our rights are the same as in England and we have got the right to have someone sitting beside you in an interview.”

He says the detention interviews are “used heavily” by police as a key source of evidence at trial.

“This happens to the extent I think, it saves them in some situations doing a more thorough investigation of other areas they can look into,” he said. It can lead to lazy policing that relies too heavily on the suspect confessing.”

“It was, at best, an inconvenience to have to wait for the solicitor. In the vast majority of cases, there is no access at all.”
With a deferral to the newly-constituted Supreme Court, it could be the end of 2010 before a final direction becomes clear. The mere fact of a deferral to the Supreme Court could be the key to a change in the law, according to Mr Scott.

“Although there will be Scottish judges on the Supreme Court, the English judges will be wondering how in God’s name a country so close to them can behave in such an uncivilised manner,” he said.

“They will be surprised that we are in line with Turkey. They certainly won’t see any good reason why the law shouldn’t be changed. They understand that it works in England and why it was changed. The evils it was designed to write out.”

The Salduz case has the potential to shake up a system that has fallen prey to “a degree of complacency”, he continued.

“There is a real fear in Scotland on the part of some people, the Crown and possibly the government, that if the court changes the law to be in line with Salduz, it has pretty major implications for the way the police work.

Since the Salduz decision was made, solicitors across the country lodged a ream of devolution minutes challenging the competency of the cases before them because their clients were interviewed without legal representation.

The treatment of these cases became a bit of a “postcode lottery”, according to Neil Hay of MTM Defence Lawyers in Falkirk.
At Livingston Sheriff Court in West Lothian prosecutors are, where possible, looking at the case and trying not to rely on interview evidence, he said.

In Edinburgh sheriffs have refused to consider the point, arguing that the question does not apply. Sheriffs across the country, including Stirling, Falkirk and Aberdeenshire have been continuing cases from month to month to await the determinative decision of the High Court.

“My office has nearly 100 of these cases,” said Mr Hay. “That’s 100 accused, with usually around three or four civilian witnesses in each case.

“We are having days in court when we are dealing substantially with these cases. The effects upon the running of the system are probably being masked by the different approaches of the different jurisdictions. In some courts this is having a substantial knock on effect in the diarying of court business. We are planning for a substantial up-turn in court business if this is refused.”

The recent Strasbourg decision contradicts earlier rulings of the Scottish courts addressing the question of legal representation during detention. The cases of Paton v Ritchie in 2000 and Dickson v HMA a year later established a principle that the accused could be interviewed without a solicitor being present without any contravention of his Article six rights.

“The decision of the court in those cases was that it’s a matter of general fairness,” said Mr Scott. “If the police behaved unfairly in an interview, it should be excluded.”

With a decisive answer still several months away at best, solicitors and academics have little to do but speculate on the possible outcome and it’s impact on both policing and criminal prosecutions. Some believe that a change of the law is long-overdue. The developing situation in Scotland has not escaped the attention of the country’s political representatives in Europe.

Scottish MEP Alyn Smith, a member of the European Parliament’s constitutional affairs committee says if we can learn lessons from other territories, Scotland should keep an open mind on whether we should reform our practice.

“The ECHR is doing a power of work in raising rights across Europe, and while the substance of this case is a very different set of circumstances from those anyone in Scotland deals with, we should always keep how we do things under review and thinking about how we do things will be no bad thing.”

Defence solicitor Neil Hay is in agreement. “I think there is a general recognition by different solicitors that this is a deficiency in our system,” he said.

“There is also a recognition it will require a change in working practices. Some people will welcome that, some people won’t.
“I don’t think it’s anything that defence solicitors should be frightened of or wouldn’t welcome.”

The impact of a decision in favour of Salduz could be as far reaching as to force legislative changes to be made. The lingering possibility of a decision that could invoke such a radical shake-up in Scotland’s long-established method of policing is a nerve-wracking prospect for many who benefit from or are accustomed to the current system.

Such landmark rulings are a crucial element of a fluid legal system that is constantly revising itself to stay in-line with, and sometimes ahead of, the rest of the world.

“Only four years ago an accused person was not allowed to see the prosecution’s evidence against him at a criminal trial,” said Mr Hay. “Lawyers look back at it in disbelief that we allowed the system to exist.

“It was so unsatisfactory, but that was our system. I have found it a very unhappy moment to realise Scotland’s legal practice has something in common with the Turkish security courts,” he continued.

“Article six requires that as a rule access to a lawyer should be provided. It doesn’t say except in Scotland. The tide has not just turned. It’s turned and it’s moving further away from Scotland the whole time.”