Solicitor Nicholas J Scullion explains the fundamental changes to Scots Law & Procedure and the consequences
On Tuesday 26th October 2010 judges in the Supreme Court London upheld an appeal by teenager Peter Cadder. His assault conviction was based on evidence gained before he spoke to his lawyer.
Prior to 30th October 2010 when the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 came into force, suspects could be detained and then questioned for six hours without a prior consultation with a lawyer. The Supreme Court judges ruled this very practice violated the human right to a fair trial.
The Scottish Government has reacted almost immediately anticipating the ruling by passing the new Act which fundamentally changes Scots law and procedure.
These new laws now ensure that persons being questioned by the police on suspicion of having committed an offence have the right of access to legal assistance. Further, this right applies to persons detained (an initial maximum of 12 hours with a potential increase to 24 hours) and those who attend voluntarily at a police station or other location for the purpose of being questioned by Police.
The result of this is that in all cases where a Trial is yet to commence a confession given by a suspect of sound mind to Police officers, even after being formally cautioned (i.e. advised of his right to silence by the Police Officers) will not be able to be used by the Crown as evidence at any forthcoming Trial if the suspect had not been offered a private consultation with a Solicitor prior to the questioning.
We at Nicholas J. Scullion & Co have already forced the Crown to formally announce that they shall be taking no further proceedings in a great many of our cases since October 2010the most notable success being that achieved on behalf of our client Mr James Skilling, who was acquitted on 9th November 2010.
What about the rights to appeal for persons convicted in the past, after the Crown had led evidence of their admission / confessions where prior legal advice by a lawyer was not allowed or given?
This area is less than certain because the very same Supreme Court judges in the Peter Cadder ruling who said, on the one hand "There is no room, in the situation which confronts this court, for a decision that favours the status quo simply on grounds of expediency … the issue is one of law... It must be faced up to whatever the consequences” have made it clear, that their ruling would not apply to “closed” cases. This in itself is a rather peculiar state of affairs and one which itself will likely be the subject of another legal challenge.
Notwithstanding that, the Supreme Court ruling was expressed as not retrospective, even at the present time for all “closed” cases, there is still at the very least, the option of an application to the Scottish Criminal Cases Review Commission (SCCRC) for a “Review".
The SCCRC’s review of a case is completely independent of Parliament, the Scottish Government, the Crown and the Justiciary and the SCCRC will decide for itself whether there may have been a miscarriage of justice and if it is in the interests of justice to refer a case to the High Court for determination.
Nicholas J. Scullion is the Senior partner at Nicholas J Scullion & Co. Solictors
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