Public Law

The Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 was passed by the Scottish Parliament in one day. The quid pro quo – that of providing for up to 24 hours’ detention in return for access to a lawyer – has been described by some, including the Justice Minister as essential “to balance the scales of justice”.

We now have plenty of time to review the legislation when of course the Scottish Parliament had a few hours at best. But even on a cursory review, section 6 of the Act does seem to leap out:-
“Where the suspect wishes to exercise a right to have intimation sent [to a solicitor] the intimation must be sent by a constable—
(a) without delay, or
(b) if some delay is necessary in the interest of the investigation or the prevention of crime or the apprehension of offenders, with no more delay than is necessary.”

Re the 24 hour extension, much has been made of the fact that extension will be exercised by a senior officer independent of the investigation. This has been held up as a key safeguard.

However when it comes to letting a lawyer know that their client has been detained there is no similar safeguard – it appears to be down to the investigating officer to make the call (or not, as the case may be).

Why does this matter? Well for the right of access to a lawyer to become real, the lawyer has to know that his client has been detained. The new Act may leave the keys to the right of access in the gift of the investigating officer. His decision not to send intimation to a lawyer has the effect of depriving a suspect of the right of access. Is this decision, minus the “independent officer safeguard”, ECHR compliant? It might not be.

All of which begs the question: Does the emergency legislation cure the previous failings in the law, or create the potential for new failings?

Paul Marshall

Partner at Brodies LLP
Paul leads Brodies’ Corporate Crime and Investigations team. He has more than a decade of experience conducting and managing internal investigations for clients who suspect that something has gone wrong within their business. He advises and support clients facing investigation by the police and specialist regulators
Paul Marshall