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Big Wullie · Joined: 25 Apr 2007 Posts: 1149 Location: Glasgow

I have said for years people in Scotland should have Legal Representation while being interviewed by the Police like our counterparts south of the border.

Perhaps now Kenny MacAskill will be forced into "Emergency Legislation" to rectify and remedy this clear breach of our human rights to Equality

http://thescotsman.scotsman.com/s...puts-thousands.5288337.jp#4047774

ECHR Decision:

http://www.bailii.org/cgi-bin/mar...suf+and+Salduz&method=boolean

The following:

(see Brennan v. the United Kingdom, no. 39846/98, § 45, ECHR 2001 X).
In the John Murray v. the United Kingdom judgment of 8 February 1996
In the John Murray v. the United Kingdom judgment of 8 February 1996, the Court observed: “national laws may attach consequences to the attitude of an accused at the initial stages of police interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings. In such circumstances Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation. However, this right, which is not explicitly set out in the Convention, may be subject to restrictions for good cause. The question, in each case, is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing” (§ 63).
In the Brennan v. the United Kingdom judgment of 16 October 2001, which is based on the same principles, the Court said that “[t]he manner in which Article 6 §§ 1 and 3 (c) is to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case” (§ 45). It observed: “although Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation, this right, which is not explicitly set out in the Convention, may be subject to restriction for good cause. The question in each case is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing” (ibid).
We can reasonably infer from the above-mentioned case-law the following elements:
Firstly, it is now clear from the Court's case-law concerning Article 6 § 3 (c) that the assistance of a lawyer already at the initial stages of police interrogation is the rule and the lack of assistance is the exception.
Secondly, both in the John Murray and Brennan judgments, the Court made it equally clear that, if there is a restriction on the right to the assistance of a lawyer already at the initial stages of the proceedings, there must be a “good cause” (des raisons valables) for such a restriction.

Finally, the Government have not advanced any “good cause” (des raisons valables) for the restriction at issue. The only “good cause” was probably that the legislation in force at the material time in the respondent State concerning such crimes did not provide for access to a lawyer during police custody.
On a more general level, we would also observe that in the last few years a number of State Parties to the Convention, including the respondent, have changed the relevant legislation concerning access to a lawyer during police custody. Some of them expressly invoked the Court's case-law as the main reason for such a change. In this respect, we should not send out the wrong message by saying that the mere fact that a statement made to the police during pre-trial detention is not the sole basis for an applicant's conviction retrospectively justifies any restrictions on access to a lawyer during police custody, which is simply not true.
Last but not least, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the CPT) has frequently recommended that the right of access to a lawyer be guaranteed from the very outset of custody (see as a recent reference CPT/Inf/E (2002) 1 – Rev. 2006, page 12, § 41). The CPT has stressed that, in its experience, the period immediately following deprivation of liberty is when the risk of intimidation and physical ill-treatment is greatest. Consequently, the possibility for persons taken into police custody to have access to a lawyer during that period is a fundamental safeguard against ill-treatment. It is difficult for us to accept that our Court, while being more and more careful about any situation that could possibly be problematic under Article 3 of the Convention, is at the same time moving backward as to the protection afforded under Article 6 § 3 (c) of the Convention.
The aim of the Convention is to protect rights that are not theoretical or illusory but practical and effective. That rule is true also of the right to legal assistance. As we all know, the crucial moments in criminal proceedings come right at the beginning, with the first stages of police intervention, which may determine the outcome of the proceedings definitively and irremediably.
That is the main reason why the right to legal assistance as soon as possible and throughout criminal proceedings is set forth as a guaranteed fundamental right in the proposal of 28 April 2004 for a Council Framework Decision on certain procedural rights in criminal proceedings throughout the European Union, with the aim of setting common minimum standards.

Can be found here:

http://www.bailii.org/cgi-bin/mar...suf+and+Salduz&method=boolean

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scotkaz · Joined: 28 Aug 2008 Posts: 527

http://news.bbc.co.uk/1/hi/uk/8060814.stm

The Scottish Government is to consider a European Court of Human Rights ruling to see if it may affect thousands of criminal convictions in Scotland.

Last November, judges in Strasbourg quashed the conviction of a man in Turkey because he did not have a lawyer present during a police interview.

In Scotland an accused person can be detained for six hours and interviewed by police without legal representation.

This provision in Scots law is now to be considered by an appeal court.

The Criminal Procedure (Scotland) Act 1980 introduced statutory powers of detention for six hours for the purpose of investigation.

During this period, the suspect is entitled to notify a solicitor and one other person that they have been detained.

If this case is upheld it's on a collision course with Scottish legal procedure
Neil Hay
MTM Defence Lawyers

After six hours the person must be freed or charged. If charged, the police are unlikely to have any further interest in interviewing the suspect, since they must have all the information they need to bring a charge.

This provision in Scots law has already been challenged, and an appeal court made a ruling that, in effect, it was compliant with the European Convention on Human Rights.

However, following the case in Turkey of a 17-year-old youth who had made a confession during questioning, concern has been raised again.

A case at Forfar Sheriff Court has been halted and made the subject of a "devolution reference" to an appeal court - to check whether it is compliant with the convention.

It is understood a second case, from Falkirk, has also been referred on similar grounds.

If the appeal court finds these cases are not compliant with human rights legislation, it could lead to convictions being re-examined with defence lawyers challenging key police evidence.

Assault cases

Neil Hay, of MTM Defence Lawyers in Falkirk, told BBC Radio's Good Morning Scotland programme that the judgement could affect thousands of cases currently going through the Scottish court system.

He said: "There are some cases this judgement will affect and they are those where there's very little evidence, for instance domestic abuse, sexual assaults and rape.

"In Scotland the law says that in order to convict a person there must be two sources of evidence.

"If this judgment is upheld in the courts in Scotland it will mean one of those sources, that is the police interview which might often amount to a confession, would not be able to be used by the prosecution at the trial."

Mr Hays said trials throughout Scotland were already being delayed and appeal hearings were being set down.

He added: "If this case is upheld it's on a collision course with Scottish legal procedure."

kevin donald · Joined: 29 Oct 2007 Posts: 198

I found this on wrongly accused site.

Good article, It relates to Police interviews.

We all know and recognise the famous "caution" -
"Joe Bloggs, you are being arrested for the murder of Jack Black. You do not have to say anything, but anything you do say may be taken down and used in evidence against you."

You'd think, then, that anyone who has been arrested would know they had been arrested, and would have the right not to answer any questions until they have a solicitor present.

Well, if the caution was delivered exactly as it's shown here, that would be the case. But there are two significant problems with this.

Firstly, it's rarely delivered as clearly, or as obviously. Often the caution is hidden within a whole bunch of "information" fired at the "suspect" (who probably has no idea he is a suspect) by the arresting officer or officers.
Secondly, many people who are taken into a police station for questioning "under caution" have not actually been arrested.

In Scotland, there are two circumstances in which a person will be cautioned, held and questioned without actually having been arrested.

The first is as a "Voluntary Attender." Most people believe, at this stage, they are witnesses, helping the police with their enquiries. What they do not understand is that they are already a suspect, and anything they say may be used against them.

Consider the following, from a real life case:
The police officer first explains why they are in the police station, saying they need more information about the deceased from her "immediate friends" and a clearer understanding of the witness's "observations at that time." It's all very innocuous, with no hint that the "witness" is in any way "under suspicion." The officer then asks the witness to complete and sign a declaration of "Voluntary Attendance" which says "I agree to remain with police for interview regarding....." and then "I understand I may terminate this interview at any time."

This might seem self evident - once there's nothing more you can tell the police, the interview will naturally come to an endâ€¦. won't it? But then, after all this softly, softly introduction, and after the form is signed, the officer states, "OK, in fairness... it's a procedural thing... I have to caution you that you're not bound to answer any of these questions we put to you today, but if you do, your answers will be recorded, may be noted, and may be used in evidence."

Helping the police with their enquiries as a witness, you may believe the fact that it's just a "procedural thing" because the officer didn't say "may be used in evidence against you." There would be no point in obtaining information if it wasn't going to be used in evidence - it's the omission of the critical words "against you" that keeps the person believing he only a witness.

Weeks later comes "Detention under Section 14." Here the "witness" is told he is being detained for questioning. He is told "OK, you're going to be asked questions about the murder of X, you're not bound to answer these but if you do, your answers will be recorded and may be used in evidence." Once again, the words "against you" are omitted. This time, though, he is not free to terminate the interview - he must stay with the police for the full duration allowed by Section 14, after which the police must either arrest him, or set him free. But this is not explained to him by the police. He is still not told he is a suspect, and worse, he is not entitled to have a solicitor present, either as a Voluntary Attender or under Section 14.

He asks if he has been arrested and is told "No." He asks if he is being accused of the murder and is told "No."
Put yourself in that position. You haven't been arrested, you haven't heard the proper version of "the caution," you're not being accused of anything and you haven't been told that your answers may be used in evidence against you. What would you think had happened to you?

If you ever find yourself in a police station, helping police with their enquiries and are told that your evidence may be used "in evidence," beware. Your witness status has just turned to suspect status, and you won't even know it.

by Sandra Lean - July 2008

Big Wullie · Joined: 25 Apr 2007 Posts: 1149 Location: Glasgow

Scotkaz

I believe the video link above you linked, actually uses the words it is Illegal to refuse to allow an accused access to a Solicitor.

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