Supreme Court Ruling on Tuesday 26th October 2010 and subsequent Emergency Legislation now in force since Saturday 30th October 2010

As many of you will know, judges in the Supreme Court in London on Tuesday upheld an appeal by teenager Peter Cadder, whose assault conviction was based on evidence gained before he spoke to his lawyer.

Until yesterday, 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 practice violated human rights to a fair trial.

The Scottish Government has reacted almost immediately (anticipating the ruling, as we at Nicholas J. Scullion & Co. had) by passing this new Act on Friday which fundamentally changes Scots law and procedure. These new procedures came into force yesterday meaning 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 the above is that in all cases where a Trial is yet to commence, a confession given by a suspect of sound mind given 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.

And what of the rights to appeal for all those 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. This is 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” and "The issue is one of law. It must be faced up to, whatever the consequences” have also made it clear, however, on the other hand, that their ruling would not apply to closed cases. This in itself is a rather peculiar state of affairs and is 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, the Justiciary and the Defence 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.

Should you discuss the implications of Tuesday’s Supreme Court ruling or Friday’s Act of Parliament with one of our Criminal Defence Solicitors on your specific case and circumstances then please do not hesitate to contact us 24/7 on our urgent online enquiry@scullion-law.co.uk. We at Nicholas J. Scullion & Co are also on hand 24/7 by telephoning 01698 283 265 to answer your concerns and questions and finally please feel free leave a comment on this blog.