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UK Supreme Court rules Scotland suspects have right to counsel during interrogations

By Carrie Schimizzi

[JURIST] The UK Supreme Court [official website] ruled [judgment, PDF] Tuesday that Scottish police can no longer question a suspect in custody without the presence of a lawyer. The court found that the previous law, which permitted interrogation of suspects without a lawyer for up to six hours, violated the Article 6 right to a fair trial of the European Convention on Human Rights [text, PDF]. The court's ruling will potentially affect thousands of criminal cases pending in the UK court system and opens the door for similar convictions to be reviewed or appealed. The court ruled that criminal cases that have already been decided and not appealed must not be reviewed, but added that the Scottish Criminal Cases Review Commission (SCCRC) [official website] will have the discretion to review and refer cases to the high court if public interest demands it. The court indicated the ruling would affect pending criminal cases:

Figures were provided to the court which indicate there are about 76,000 such cases - or are being held in the system pending the hearing of an appeal although not all of them may be affected by the decision in this case. There is no doubt that a ruling that the assumption was erroneous will have profound consequences. But there is no room, in the situation which confronts this court, for a decision that favours the status quo simply on grounds of expediency.

The court's decision has prompted the Scottish government to introduce emergency legislation [press release] to bring the country's rules into line with European human rights laws. Scottish Justice Secretary Kenny MacAskill [official profile] has assured that these changes to the Scottish justice system have been "anticipated and planned for" [BBC report].

The issue of a right to a lawyer during custodial interrogations has been addressed in two other recent high court decisions in both France and Canada. Last week, the French Court of Cassation [official website, in French] ruled [judgment text, in French; press release, in French] that all persons in custody of French law enforcement, including terrorism suspects, are entitled to consult with lawyers [JURIST report] from the outset of criminal proceedings. The decision expanded on a July 30 decision [text, in French] issued by France's Constitutional Court [official website, in French], according to which all persons in custody are entitled to a lawyer from the outset except for people suspected of engaging in terrorism, drug trafficking or organized crime. Also this month, the Supreme Court of Canada [official website] ruled [judgment text] that Canadians do not have the right to have counsel [JURIST report] present during custodial interrogations. The court held that § 10(b) of the Charter of Rights and Freedoms [text], which states that those under arrest have the right "to retain and instruct counsel without delay and to be informed of that right," is typically satisfied once the suspect is advised of the right and, if invoked, permitted "reasonable opportunity to consult counsel." The court went on to say, however, that the charter does not extend so far as to necessitate counsel's presence for the duration of the interview.

Full post as published by JURIST - The Paper Chase on October 26, 2010 (boomark / email).