Scots law brought in line with ECHR

Changes to Scots legislation have been approved by Parliament to put it in line with the European Law.

On the basis of the Criminal Procedure (Scotland) Act 2010 recently approved by the Scottish Parliament, Scottish police can no longer question suspects without their lawyer.

The emergency legislation Act followed an appeal to the Supreme Court by teenager Peter Calder, whose assault conviction was based on evidence gathered before he spoke to his lawyer. This was ruled a breach of the European Convention of Human Rights (ECHR), which states that access to a lawyer is fundamental to a suspect receiving a fair trial.

The European human rights legislation was written into the Scotland Act and as such has to be followed by Scottish judiciary.

It was only in October last year, however, when seven judges at the Scottish Appeal Court unanimously approved the Scottish procedures as consistent with the ECHR.

In an official statement Kenny MacAskill, Scottish Justice Secretary, welcomed the new legislation, by saying: “Justice requires a balance between the rights of an accused person and those of victims and communities.”

However, some concerns have been raised regarding the new legislation. Cameron Ritchie, vice president of the Law Society of Scotland, told The Journal:

“There are aspects to welcome in the Scottish Government's legislation, particularly provision to ensure that suspects have a right of access to a solicitor when detained by the police.

“However we don't think the case had been made for doubling, and in some cases quadrupling, of the time in which a suspect can be detained. It will now be important to ensure this change does not pressure suspects into waiving their rights to legal advice from a solicitor for fear of being held for longer. That would weaken a suspect's human rights rather than strengthening them.”

A review of the new legislation is to take place prior to next year’s elections at Holyrood and is hoped to detect any errors in the new procedures.

In the review the senior Scottish Judge, Lord Carloway, will also look into other areas of Scots law that might be affected by the Bill, such as the right to silence and need for corroboration.

“Those essential protections must be retained and indeed as a jurisdiction we should possibly be suggesting that the fundamental rights which a citizen of Scotland enjoys should be extended throughout Europe by incorporation in the European Convention of Human Rights,” said Mr Ritchie.