Solicitor advocate John Scott wonders if the First Minister knows as much about the law as he claims, and calls for reassurance that Scotland's justice system is in safe hands.

“We are determined that Scotland should be seen as a voice for peace and justice in the world.”


The evidence of the past few weeks suggests that it was not Alex Salmond who drafted these fine words for the SNP Manifesto.

Our First Minister is not happy. Certain people are getting in his way, preventing him from doing just exactly what he thinks best for Scotland. But why should he have to put up with this? After all, he is the leader of a majority Government. No need to play nice any more. Tell it how it is, Mr. Salmond. You are Scotland now.

So, instead of concentrating on the business of government, our First Minister took time out to lambast those who have dared to upset him recently. In no particular order they are Lord Hope, the Deputy President of the UK Supreme Court (not the English Supreme Court, despite what you may have heard), Lord Wallace, the Advocate General for Scotland, and Tony Kelly, Professor of Human Rights and a practising lawyer.

The accusation against these distinguished and respected lawyers is that they are somehow preventing Scotland from being all it can be, indeed even conspiring to do it down. They are traitors who should be treated as such by all who care as deeply for our country as the First Minister does.

The level of ire raised in our glorious leader is such that the insults have flowed freely, with personal slurs and the attribution of low motives joining the general vitriol.

I rather suspect that the individuals concerned may be a little surprised by the evident strength of feeling which has been unleashed on them.

In the legal profession I am certainly aware that there is strong support for those the FM has attacked, even from some who may agree that there is some merit in debating the issues.

Following the FM’s latest outburst and the Justice Secretary’s shameful “he who pays the piper calls the tune” remark about the Supreme Court it is time for our Government to stop acting like a tin-pot dictatorship. This sort of abuse of judges and human rights lawyers is prevalent in countries with some of the worst human rights abuses. It is neither appropriate nor welcome in a country aspiring to be a modern democracy. The independence of the judiciary and the legal profession, indeed the rule of law itself, may otherwise be at risk.

I should declare an interest. I am a friend of Tony Kelly, and worked with him for a couple of years on the most recent Lockerbie appeal. Tony is a solicitor of great integrity. If anything, Tony is considered rather geeky about the law, even for a lawyer. He has a passion for the law and the great good it can do for those in need, whoever they are. That has meant that he has acted for some who would win no popularity competitions but that is what good lawyers are supposed to do. Unlike politicians we cannot simply hitch our wagon to the most popular engine.

But, as the FM said, he took the trouble to get elected so perhaps we should forgive him for playing to the gallery, although, unlike him I suspect that the public have a greater appetite for meaningful debate on issues, rather than his increasingly heated mud-slinging.

Mr. Salmond has vented so much that it is hard to keep up. What he overlooks is that the cases taken by Tony Kelly and others have often been necessary because successive governments have broken their promises to meet international standards of fairness. For example, in relation to the Cadder decision we knew what to expect because we had repeated warnings.

In 1994 I was a member of the committee of the then Scottish Council for Civil Liberties (later the Scottish Human Rights Centre). As part of its visit to the UK the Committee for the Prevention of Torture (“CPT”) consulted with us about a number of issues in Scotland which were of relevance to its work.

Alan Miller (now Professor and Chief Commissioner of the Scottish Human Rights Commission) and I gave evidence to the Committee about what happened when suspects were detained in terms of what was then section 2 of the Criminal Justice (Scotland) Act 1980( now section 14 of the Criminal Procedure (Scotland) Act 1995).

We were asked many questions and, it appeared to me, that there was puzzlement at some of our answers, especially in relation to pre-charge access to a solicitor. The Committee’s report was duly published in 1996. The following recommendation may seem familiar:

The CPT recommends that all persons taken into police custody be entitled to have access to a lawyer from the very outset of their custody. This right should include the right to contact the lawyer and to be visited by him (in both cases under conditions guaranteeing the confidentiality of their discussions) and, in principle, the right of the person concerned to have the lawyer present during interrogation.

A further visit by the CPT in 2003 resulted in the same recommendation being repeated in its 2005 report, albeit with rather more urgency:

The CPT wishes to stress once again that, in the interests of the prevention of ill-treatment, it considers it essential that all persons in police custody should be entitled to have access to a lawyer from the very outset of their deprivation of liberty; indeed, the period immediately following deprivation of liberty is when the risk of intimidation and ill-treatment is greatest. It therefore reiterates its recommendation in this respect; the right of access to a lawyer should include the right to contact and to be visited by the lawyer (in both cases under conditions guaranteeing the confidentiality of their discussions) and, in principle, the right of the person concerned to have the lawyer present during police interviews.

In response to this the Scottish Government said:

"The Scottish Executive accepts in principle that if a detained person requests access to a lawyer, or vice versa, this should be allowed, unless there is good reason to deny such access e.g. in the interests of the investigation, the prevention of crime or the apprehension of offenders. The extent of access should remain a matter for the professional judgement of the police who will have to consider the matter carefully before reaching a decision."

Although the same issue surfaced twice in argument before the Appeal Court, in Paton v Ritchie in 1999 and in Dickson v HMA in 2001, on both occasions the practice of denying access to a solicitor was considered and held to be compatible with the European Convention of Human Rights. But the issue did not go away.

In the Salduz case in 2008 the European Court took the issue to a new level. On the face of the Grand Chamber decision article 6 was taken to include access to a solicitor during the investigation phase of criminal proceedings. The development appeared decisive. At that stage everyone expected that significant change was upon us. The Law Society warned the legal profession of this in February 2009. Court challenges proliferated and even the Crown took precautionary steps in how it handled interview evidence.

But then at the end of 2009 an Appeal Court bench of 7 judges in Scotland considered the point in the case of HMA v McLean. The Court decided that nothing had changed. It interpreted away what appeared to be the clear meaning of Salduz and threw in for good measure a robust defence of the fairness of the Scottish system when it came to dealing with such evidence. It is not entirely clear where the Court got the idea that “… the police may, if they think fit, allow a lawyer or other person to be present during the detention. This discretion is likely to be exercised where the detainee is perceived to be a vulnerable person.”(paragraph 27).Before last summer, in over 20 years as a criminal lawyer, I was allowed to be present during only one section 14 interview. Until then, contrary to what the Crown told the Supreme Court in Cadder, the police had interpreted the continuing attitude of the Court as being a blank cheque to exclude solicitors. Indeed I understand that guidance from ACPOS may even have directed the exclusion of solicitors, contrary to what the Government had suggested in response to the CPT.

Our Government allowed itself to maintain an unacceptable position in relation to solicitor access and chose to hope instead that Scotland, alone of all European countries, might get away without what was now considered a fundamental aspect of the right to a fair trial. Mr. Salmond suggests that this practice might have withstood challenge at Strasbourg. He is simply wrong.

I accept that our system is fair in many ways but no one has yet explained to me what is wrong with an often vulnerable individual being allowed legal advice before being interviewed. Many people I know thought that such a right already existed in Scotland and were surprised to discover otherwise.

“Scotland in Europe” is another SNP slogan. I like it. As a Scots lawyer it chimes with my understanding of how our legal system developed, not in splendid isolation, but as part of a much wider legal(and especially European) community, based on universal principles of fairness. Even our FM seems to accept the jurisdiction of the European Court of Human Rights. He should be aware that many of the same developments as happened in Cadder are coming through the European Union which is also developing increased procedural safeguards for a fair trial. Our system cannot stand still and proclaim perfection. I am proud to be a Scottish lawyer but part of that is being open to change for the better. I think that we can show others how certain things might be done better in their countries, but practitioners like me are well aware of the faults which those who know “a wee bit about the legal system” may be ignorant of. We are friendly and well-intentioned critics, not enemies or traitors.

In the meantime I would like to think that Mr. Salmond will calm down and apologise for his recent intemperate remarks.  He must now persuade the country that justice and our independent(not isolated) legal system is safe in his hands.

Otherwise, if he still wants tame judges who meekly toe the Government line, and lawyers who abandon those most in need, it is Mr. Salmond who is in the wrong country.

John Scott