Scottish Government v. Human Rights

Last Tuesday, the UK Supreme Court ruled in Cadder v HMA that the Scottish system of using evidence gathered during the initial police questioning of criminal suspects held in detention without access to a lawyer was in contravention of Article 6 of the European Convention on Human Rights (ECHR), which guarantees the right to a fair trial. The day after the ruling, the Scottish Government pushed through in less than three hours legislation which would usually require months of scrutiny. The resultant legislation, the Criminal Procedure (Scotland) Act 2010, itself a rather dubious statute, potentially sets a dangerous precedent for future procedure, causing one Lib Dem MSP, Mike Rumbles to declare that the Scottish Parliament "should be ashamed."

The need for reform was certainly present. Gathering admissible evidence from suspects without representation is a reasonably obvious breach of Article 6 as Professor Alan Miller, the chairman of the Scottish Commission on Human Rights, confirms. "The European Court of Human Rights has repeatedly held that the right of any person charged with a criminal offence to be effectively defended by a lawyer is a fundamental element of ensuring that the right to a fair trial is practical and effective." Pressed as to why legal representation is so important in these cases, Professor Miller tells me that "the presence of a lawyer enables the detained person to be advised as to what the law is, whether they have any defence if they were involved in the alleged offence, or how to present evidence to show their innocence if they were not."

An effective defence protects the interests of the detainee, giving legitimacy to the trial proceedings. So, accepting that Scots law had to be changed in order to bring it in line with the ECHR, why the urgency and why the lack of scrutiny? The Journal put this question to a government spokesperson, who said that they had "no choice but to act swiftly to address the serious and far-reaching consequences imposed on them by this judgment." Professor Miller disagrees, however, saying that "the Lord Advocate had already issued interim guidelines to provide for this in Scotland, so there wasn't any need to rush emergency legislation through Parliament."

In fact, he claims, "because the legislation was rushed through the Scottish Parliament without the proper scrutiny, consultation or preparation [it] could itself be subject to challenge." So if, by not scrutinising the legislation the Scottish Government are opening the door to potential challenges in future cases, why expend so much energy pushing it through so rapidly?

Professor Miller believes that “the Scottish Government inappropriately used emergency procedures to introduce legislation”, meaning that the aspects of the Bill which were required to be brought into force following the Cadder ruling were used to press for urgency and this in turn was used as a cloak to allow the passage of measures which were potentially ill-prepared or contentious without appropriate debate and discussion. The government deny that there was a lack of scrutiny and preparation saying that “We planned for many months for every eventuality arising from the case, consulting closely with partners… as we carefully crafted legislation that was passed overwhelmingly in the Scottish Parliament”. However, it does seem that as well as providing for access to a lawyer while in police custody, the Act goes some way further than the requirements of Cadder.

One key example is the extension of the detention period - the time a suspect can legally be held without formal charges being brought - from six to twelve hours in the ordinary case, with the option to for a further extension to 24 hours in exceptional circumstances. This is not specifically required under the Cadder ruling, though the government justification is that the measure is necessary "because accessing a lawyer takes time, especially in remote areas", so presumably, with the new legislation requiring access to a lawyer before questioning can take place, for practical reasons the police may need more time to gather evidence. This seems rational, though whether or not it is reasonable is another question.

Professor Miller doesn't think so, saying that "the government didn't present any substantive evidence to support the need for this extension," and highlighting that "this longer time limit could  be used disproportionately" with different detention periods depending on your locality or remoteness. An extended detention period could also be viewed as a further encroachment of individuals' human rights as their freedom of movement would be restricted for longer. With this in mind, and given Professor Miller's feeling that the Act may not even provide "the effective legal assistance necessary to comply with the Article 6 right", it is worrying that the legislation has been passed so quickly.

The legislation's provisions also provoke concern over their impact on the appeal system of the Scottish Criminal Cases Review Commission (SCCRC). Prominent human rights lawyer Tony Kelly has suggested that the Act's message is loud and clear: "don't appeal." Responding to this claim, Professor Miller explains that "the emphasis that the legislation gives on finality and determination of cases that have already been concluded creates a climate where it's going to be more difficult for the SCCRC to bring cases to the High Court... [and] will undermine access to court for victims of miscarriage of justice."

Approached for comment, the Scottish Government said that "the purpose of the finality and certainty test and the additional powers for the High Court introduced in the Act is to stop the SCCRC becoming a back-channel for cases where a change in the law or the understanding of the law after the conclusion of a case is the only reason for an application." So in fact, the reason for this change was to stop, or at least stem the flow of appeals based on the changes to the law resulting from the Act. Asked about the practical effect of this measure, Professor Miller commented that "it will have a chilling effect on the important function of the SCCRC to effectively review and address alleged miscarriages of justice."

It is surprising that an act justified as emergency legislation in order to protect detainees' human rights may in some cases actually have a detrimental effect on those rights, by increasing the time they can be held without charge and making it even harder for them to appeal. Professor Miller offers an apt summary of this dubious state of affairs: "The Act may in fact fall short of what the judgment requires in some aspects, and in others it introduced changes that were totally unrelated to the judgment."