Public Law

The eagerly awaited decision in Cadder v HMA was handed down yesterday by the Supreme Court. The court took the unusual step of indicating earlier in the year that it would release its decision on 20 October 2010. They were six days late, so was it worth the wait?

Until now, in Scotland suspects could be questioned for up to 6 hours without a lawyer being present. The Supreme Court has decided that this breaches the right of an individual not to incriminate oneself. This right is protected as part of the right to a fair trial under Article 6 of the European Convention on Human Rights.

What does the judgement mean aside from more sleep deprived nights for duty solicitors?  Starting today, “emergency legislation” will be rushed through the Scottish Parliament to change the law on police detention. The Criminal Procedure (Detention, Legal Assistance and Appeals) (Scotland) Bill will be considered and voted on by MSPs this afternoon. In fact, the Bill if enacted will actually increase the permitted period of detention without charge from six to 12 hours.  And it goes further: the Government’s proposals would give a custody officer the power to extend detention by up to 24 hours.

What is the “emergency” that justifies emergency legislation? The decision will not permit closed cases to be re-opened. However, it will affect cases which have not yet gone to trial, where the trial is still in progress or an appeal has been brought in time. The Crown estimates that around 120 solemn cases are affected.

Extending the period of detention to 12 hours in return for access to a lawyer may be a controversial quid pro, but perhaps understandable if one takes the view that “lawyer time” will eat into the detention period. But what about giving the police the discretion to extend detention up to 24 hours (using a procedure akin to that used under the Terrorism Act 2000)? Why is the Scottish Government proposing to give the police discretion to detain for more than 12 hours? Perhaps the parliamentary debate will shed light on this…

Niall McLean

Associate at Brodies LLP
Niall is a member of Brodies' market leading Government, Regulation and Competition practice. Niall gives both public and private sector clients advice in a broad range of areas including: corporate crime and investigations, governance, defamation and reputation management, public law and statutory interpretation.
Niall McLean