There could be trouble in store for Scotland’s justice system as a recent ruling by the European Court of Human Rights in a Turkish case, where a confession was withdrawn because the suspect did not have access to legal advice – as is the case currently in Scotland.
The Daily Record reports :
Apr 18 2009 Paul Thornton
THOUSANDS of criminals could fight for their freedom after human rights experts branded confessions extracted by Scots police as illegal.
Scotland is one of just a few EU countries where suspects cannot demand legal advice when they are being grilled by police .
But, after a landmark ruling in the European Court of Human Rights (ECHR) over a Turkish case, lawyers are beginning to lodge bids to have evidence from interviews thrown out.
That case saw the confession of a 17-year-old Turk retracted because he did not have a lawyer present during his police interrogation.
The human rights convention states everyone has the right to a fair trial, including legal representation.
Last year the ECHR decided that this applied to pre-trial investigations and upheld the teenager's appeal that a confession was inadmissible as evidence.
The dramatic ruling could also see thousands of cases in Scotland since 2000 being appealed.
Prosecutors and police insist they act within the law and that the Court of Appeal has ruled interviews without lawyers are legal.
But an Edinburgh solicitor claimed there have so far been two successful appeals in Forfar which the Crown Office are now appealing.
Solicitor advocate Matthew Auchincloss, of the Public Defence Solicitors' Office said: "The ECHR say where an accused person has been interviewed by police without the presence of a lawyer his human rights have been irrevocably breached and he can't have a fair trial.
"It could be in all of these cases the Crown could not seek a prosecution."
That would be a time-bomb which could blow apart the Scottish system.
Mr Auchincloss said: "If these arguments are held it could mean all such convictions since the human rights law was introduced in 2000 could be appealed.
"We are talking about thousands of cases. It would exclude all confessions elicited during police interviews and also anything they said after being cautioned."
Mr Auchincloss said he often sees vulnerable people interviewed without help.
He added: "I dealt with a case in Haddington where a 16-year-old boy with learning difficulties. Police interviewed him under caution with no advice and no adult present."
Mr Auchincloss said lawyers from countries where legal advice is a right during interview find it incredible that Scotland has a different system.
He said: "I work with a Polish lawyer who was appalled we were not allowed representation in interviews."
Last night the Crown Office said neither Scots law or the convention on insisted on legal representation.