The Supreme Court has given judgment today in this case about whether Scottish criminal suspects must have the right to a lawyer when being questioned in the first hours after they’re arrested and detained, a right which legislation currently doesn’t give them. Or more strictly perhaps, it’s about whether evidence obtained through questioning is admissible if the suspect doesn’t have the right to a lawyer. I mentioned the case a few days ago.
Somewhat unsurprisingly, the Justices have followed the clear line of authority from the European Court of Human Rights that there must be access to a lawyer from the beginning of detention, and from the start of questioning – as a general rule, at least, subject to only limited exceptions. It’s quite astonishing that this right has not been recognised in Scots law until now; this case is one of the shining examples of the benefits of the Human Rights Act. Practice in Scottish police stations will change permanently as a result of this, and for the better, though the Scottish legal aid budget is likey to go up – which will not be convenient for Scottish justice minister Kenny MacAskill or for Alex Salmond. MacAskill has already responded. I can’t understand this comment –
We are concerned that the current devolution arrangements have created an anomaly that seems to put Scottish law at a disadvantage in comparison to elsewhere in the EU. I want to see steps taken to address this anomaly.
– what disadvantage is he on about? But he is legislating to provide for public funding for police station advice – and to lengthen the period of detention, presumably to an initial 24 hours to reflect the position in England and Wales.
The big worry in Scotland was about the possible reopening of past cases, but Lords Hope and Rodger in their judgments have sought to dispel those jitters, Lord Rodger pointing out (paras. 104-106) the importance of time-limits – the procedural hurdle Tony Kelly was quoted as referring to in the Herald – and both Justices rely on Murray CJ’s approach in the Supreme Court of Ireland in A v The Governor of Arbour Hill Prison, Lord Rodger at paragraph 101 citing him at some length:
36. Judicial decisions which set a precedent in law do have retrospective effect. First of all the case which decides the point applies it retrospectively in the case being decided because obviously the wrong being remedied occurred before the case was brought. A decision in principle applies retrospectively to all persons who, prior to the decision, suffered the same or similar wrong, whether as a result of the application of an invalid statute or otherwise, provided of course they are entitled to bring proceedings seeking the remedy in accordance with the ordinary rules of law, such as a statute of limitations. It will also apply to cases pending before the courts. That is to say that a judicial decision may be relied upon in matters or cases not yet finally determined. But the retrospective effect of a judicial decision is excluded from cases already finally determined. This is the common law position.
37. Only a narrow approach based on absolute and abstract formalism could suggest that all previous cases should be capable of being reopened or relitigated (even if subject to a statute of limitations). If that absolute formalism was applied to the criminal law it would in principle suggest that every final verdict of a trial or decision of a court of appeal should be set aside or, where possible, retried in the light of subsequent decisions where such subsequent decision could be claimed to provide a potential advantage to a party in such a retrial. In principle both acquittals and convictions could be open to retrial. But one has only to pose the question to see the answer. No one has ever suggested that every time there is a judicial adjudication clarifying or interpreting the law in a particular manner which could have had some bearing on previous and finally decided cases, civil or criminal, that such cases be reopened or the decisions set aside.
38. It has not been suggested because no legal system comprehends such an absolute or complete retroactive effect of judicial decisions. To do so would render a legal system uncertain, incoherent and dysfunctional. Such consequences would cause widespread injustices.
So I’m not sure Kenny MacAskill really needs to legislate to prevent turmoil in the Scottish courts, or that he can safely go beyond what Lords Hope and Rodger have said without either breaching the right to a fair hearing, which implies a right to access to a court in appropriate circumstances, or limiting the powers of the Scottish Criminal Cases Review Commission. But he’s going to try something, apparently. Let’s see what he comes up with.
Anyway, the 26th of October 2010 is a far better day for Scottish justice than was the 20th of August 2009.