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scotkaz · Joined: 28 Aug 2008 Posts: 526

Scotland faces human rights timebomb after experts brand confessions 'illegal'

Apr 18 2009 Paul Thornton

http://www.dailyrecord.co.uk/news...nfessions-illegal-86908-21286930/

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.

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

This is uncanny it is not real.

I have been discussing this with many people Scotkaz included the past few months and I have listed it in one of my submissions to the Justice Committee for the upcoming Law Reforms that I posted here:

http://shirleymckie.myfastforum.org/Proposed_Law_Reforms_about341.html

Anyone else wishing to lodge Proposed ideas for reform should do so by 28th April 2009.

With this article perhaps Mr MacAskill might be forced into Emergency Legislation to bring Scotland into line with the rest of Europe, England Included who have had this right to legal representation for years while being questioned by Police.

The case that springs to mind where this would apply for an appeal would be Luke Mitchell and George Beattie.

Mitchell being far too young to be questioned on his own without Legal Representation see: Claire Codona V HMA Feb 10th 1996:

http://findarticles.com/p/articles/mi_qn4158/is_19960210/ai_n14030151/

George Beattie being of limited inteligence meant both were entitled to be legally represented

Article in Full on Codona:

Girl, 14, freed from life sentence for murder
Independent, The (London) , Feb 10, 1996 by JOHN ARLIDGE Scotland Correspondent
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JOHN ARLIDGE

Scotland Correspondent

The youngest girl serving a life sentence in Britain was released from custody yesterday after three Appeal Court judges quashed the 14-year- old's murder conviction.

Claire Codona burst into tears as she was led from the Appeal Court in Edinburgh and driven home after spending four months in a young offenders' institution.

The schoolgirl was sentenced to be detained "without limit of time" last year for her part in a savage "gay-bashing" murder in a Glasgow park. But three judges overturned the conviction yesterday and said that she was the victim of a miscarriage of justice. They ruled that police officers had unfairly pressured her into making a confession. Her conviction could not stand, Lord Hope, Scotland's senior judge, said.

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The girl broke down when the ruling was announced. As she was led away to be reunited with her mother, Janette, her solicitor, Gerry McClure, said: "She is a child. Her detention has been traumatic. She will certainly be going back to school. She will be getting on with the rest of her childhood."

He appealed to the media to "let her get on with her life in peace and quiet". He said the girl's mother did not wish to speak about the case.

At a trial at the High Court in Glasgow last October, Miss Codona, from Hillhead in Glasgow, who attended Shawlands Academy before her conviction, was found guilty of killing Michael Doran, 33, of Govanhill, Glasgow.

Even though she pleaded not guilty, the court heard that she had admitted to police that she had taken part in the attack.

Mr Doran suffered 83 injuries during a frenzied assault inQueen's Park, Glasgow, a meeting place for gay men, last June. He was stabbed and suffered a fractured skull after being kicked and stamped on.

Three Glasgow youths - Richard Bell, 20, Richard Ferguson, 16, and John Cairns, 18 - were also sentenced to life imprisonment for the killing.

At her appeal yesterday, Miss Codona's counsel, Gordon Jackson QC, argued that the trial judge had erred in law in allowing the prosecution to refer to her "confession".

Police officers told the court she conceded that she had kicked Mr Doran once on the back of the feet. However, the admission had been obtained unfairly, Mr Jackson argued. Officers had put pressure on a young girl who had not been given the protection of a close relative during her interview. There was insufficient evidence to show that she was involved in a "concerted, murderous attack", Mr Jackson said.

Lord Hope ruled that the "confession" was inadmissible. The police, he said, could not be criticised for questioning Miss Codona intensely, especially over her knowledge of the part played by Bell, Ferguson and Cairns.

However, when they questioned her about her own involvement, they appeared to be trying to extract an admission which she was clearly not prepared to make voluntarily.

Angeline · Joined: 02 Oct 2008 Posts: 146

Section 14 interviews are a disgrace - how, in this day and age, can we justify allowing police officers to detain people, without arrest, and question them without a solicitor present?

Luke Mitchell was questioned three times without legal representation, and excerpts "cherry picked" by the prosecution were used against him in court. He was goaded and goaded - at one point, there were three officers calling him a liar, firing question after question without allowing him to answer, cutting him off each time he tried to respond. He asked on numeous occasions to speak with a solicitor, or even his mother, and they told him he had no right to do so. This particular interview was less than three weeks after his fifteenth birthday.

The appeal court ruled that the questioning, and the excerpts used in court did not infringe on his rights or the fairness of his trial because - ready for this?? - they didn't manage to force a confession out of him, and he was able to "stand up for himself."

Either we have rules, or we don't - allowing outrageous and deplorable police behaviour (the appeal court's opinion) in some cases, but condemning it in others just isn't on.

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