Scottish Human Rights Law Group

An article by Niall McCluskey:

A recent ruling by the European Court of Human Rights in the case of Salduz v Turkey (see HUDOC) threatens thousands of criminal prosecutions in Scotland.  The ruling may also open the floodgates with respect to appeals taken against existing convictions.

In Salduz v Turkey the ECHR held that there had been a violation of Article 6 of the European Convention which guarantees the right to a fair trial because Salduz who was under eighteen at the time of the offence was denied legal assistance while in police custody, during which time he made a confession which he later claimed was made under duress. The ECHR said that Article 6 “requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even when compelling reasons may exceptionally justify denial of access to a lawyer, such restriction- whatever it’s justification – must not unduly prejudice the rights of the accused under Article 6…the rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.”

The decision in Salduz has been followed by the ECHR in two other recent cases from Turkey, Amutgan v Turkey and Cimen v Turkey (both available on HUDOC).

In another recent case from Cyprus the ECHR came to a similar decision in the case of Panovits v Cyprus (HUDOC). In this case the ECHR stated: “As regards the applicant’s complaints which concern the lack of legal consultation at the pre-trial stage of the proceedings, the Court observes that the concept of fairness enshrined in Article 6 requires that the accused be given the benefit of the assistance of a lawyer already at the initial stages of police interrogation. The lack of legal assistance during an applicant’s interrogation would constitute a restriction of his defence rights in the absence of compelling reasons that do not prejudice the overall fairness of the proceedings.”

As far as Scotland is concerned the issue appeared to be settled 9 years ago when the appeal court decided the case of Paton v Ritchie (2000 SCCR 151). The Scottish Appeal Court held that Article 6 of the Convention  implied the right of an accused to communicate with his lawyer as a fundamental part of the preparation of this defence but that the right conferred by art. 6 was not unsusceptible of restriction and that if the accused had been questioned without his solicitor being present, the question was whether this was in conformity with the general principles of fairness laid down in Article 6. The court decided that Article 6 did not create a universal right for an accused to have access to a solicitor before or during questioning by the police.

Interestingly the decision in Paton v Ritchie was in part influenced by the European commission decisions of Windsor v UK  and Robson v UK  (both Scottish cases – see HUDOC) where the European Commission said that the absence of a solicitor during police interview did not amount to a breach of the European Convention. A five judge bench came to a similar decision to Paton in the case of Dickson v HMA (2001 SCCR 397).    

The facts of the Salduz case are really quite different from the  standard Scottish case. This is a factor that the Crown will seek to rely on when debating the implications of Salduz. Salduz was taken into custody by police officers from the Anti-Terrorism Branch of the İzmir Security Directorate on suspicion of having participated in an unlawful demonstration in support of an illegal organisation, namely the PKK (the Workers’ Party of Kurdistan). The applicant was also accused of hanging an illegal banner from a bridge in Bornova on 26 April 2001.

Subsequently Salduz was interrogated at the Anti-Terrorism Branch in the absence of a lawyer.  Later he was brought before the public prosecutor and subsequently the investigating judge. He made statements before the public prosecutor and the investigating judge.,After the questioning was over, the investigating judge remanded Salduz in custody. Only then was he allowed to have access to a lawyer. Such an extensive period without access to a lawyer would not be permissible in Scotland however the difficulty that the Crown faces is that on a view Salduz establishes a principle that an accused should have access to a lawyer whilst in police custody notwithstanding the factual differences in criminal procedure that exist between Scotland and Turkey.

Because of Salduz and the other ECHR decisions I have referred to there is a strong argument that the absence of a solicitor whilst in police custody constitutes a breach of the European Convention. Clearly however there is a tension between the Salduz case and the earlier Scottish Appeal Court cases I referred to. It is this tension which the High Court is now required to resolve in a case referred to it from Forfar Sheriff Court. Whatever decision the High Court comes to it is likely to be appealed by the losing party with a view to arguing the case in front of the Judicial committee of the Privy Council.

It is a complex legal issue that will decide whether or not Scottish citizens are represented by solicitors when being interviewed by the police.

NIALL MCCLUSKEY IS AN ADVOCATE SPECIALISING IN CRIMINAL LAW AND HUMAN RIGHTS

This article is an adaption of an article that appeared in the Scotsman newspaper on 25 May 2009.