Justice Committee

Meeting date: Tuesday, March 8, 2011

Official Report 556KB pdf

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Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010

Agenda item 3 is an evidence session on the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010, which resulted from an emergency bill that was passed by the Parliament in the immediate aftermath of the Supreme Court decision in the case of Cadder v Her Majesty’s Advocate. The decision to take evidence on the act was made following a suggestion by Robert Brown. Today’s session with a panel of witnesses will be followed by a session next week with the Cabinet Secretary for Justice. Members have been circulated a letter from the Lord Advocate, which is paper J/S3/11/8/3, and a letter that the cabinet secretary sent to the United Kingdom Government, which is paper J/S3/11/8/2.

I welcome Professor Alan Miller, who is the chair of the Scottish Human Rights Commission; John McGovern, who is a former president of the Glasgow Bar Association; Raymond McMenamin, who is a member, and Alan McCreadie, who is the secretary, of the criminal law committee of the Law Society of Scotland; and Jodie Blackstock, who is a senior legal officer at Justice.

John Scott, who was also invited to attend on behalf of Justice, is unable to attend because of a court commitment and has sent his apologies. Justice and the Law Society have provided written submissions, which members will find in papers 20 and 21.

I invite members to ask questions of the panel.

Good morning, colleagues. I start by asking a simple question. Regardless of the substance of what we enacted—although that is not entirely irrelevant, of course—do you believe that it was necessary for us to introduce and pass emergency legislation? I would like us to concentrate on the necessity or otherwise of using an emergency legislative procedure. Clearly, my colleagues will then pick up on some of the issues of substance. Who would like to start?

I do not know what you think is the best way of doing this—whether you all want to speak on all the questions, or whether you will decide who is the best person to speak and leave it at that. There are quite a lot of questions to get through, so if you can either make your answers brief or decide among yourselves who the best person is to speak, that will probably be the best way to get through all the issues. I ask whoever thinks they are best able to respond to Nigel Don’s question to fire away.

I am happy to kick off. First, thank you for inviting the Scottish Human Rights Commission to take part in this important discussion.

It is a matter of regret that we are not discussing proposed primary legislation as part of the scrutiny that the Parliament and the Justice Committee usually provide of such important bills. To answer your question directly, I believe that there are lessons to be learned from the experience of the use of emergency legislation procedures. I do not think that Scotland was seen at its best in how it responded to the Cadder decision, or that it had to wait until the Cadder decision was made by the Supreme Court.

However, we are where we are. One lesson that I hope the new Parliament will use after the election is to look at its procedures and governance to see whether a more robust context can be developed whereby there is a clearer onus on the Government to satisfy the Parliament that we are dealing with a genuine emergency and that there is no alternative but to introduce legislation using emergency procedures, thereby bypassing the usual rigorous public consultation and informed scrutiny by MSPs. As I said, it is a matter of regret that we are not sitting here looking at proposed legislation.

Also, without going into the substantive matters—I know that Nigel Don deliberately asked his question before we do that—even if there were plausible reasons for some measures in a bill being treated as emergencies, the Government should be held to account for, and required to justify, why each and every measure in a bill warrants being introduced as part of emergency legislation. A number of commentators from a range of backgrounds have pointed out that there are things in the legislation that Cadder did not require and that what is in there as a result of Cadder might not be fit for purpose.

Thank you, Professor. Before I let anybody else pick up on the general issue—I want to stick to the general issue if we possibly can—I have a further question for you. I recognise that there are some things in the act that did not need to be in emergency legislation; I do not think that that is in dispute. Given that we got there when we did—I accept your criticisms of how we got there—is there anything that we did on that day that needed to be done by emergency legislation?

In my opinion, there was not.

I put the question to the other members of the panel. Does any of you believe that anything in the legislation needed to be done on that day?

10:45

I will answer for Justice. On behalf of Justice, I thank the committee for hearing from us today.

Our submission mentions a 2009 inquiry by the House of Lords Select Committee on the Constitution that considered whether legislation ought to be fast-tracked. The inquiry was the result of a number of pieces of legislation having gone through the Westminster Parliament quickly, in circumstances in which they perhaps ought not to have gone through so quickly. The recommendations of the select committee, which are set out in our submission, are similar to what the SHRC considers sensible. We concur with those recommendations for the next session of Parliament.

There ought to be a requirement for a ministerial statement that sets out why fast-tracking is necessary. Time ought to be built in for pre-legislative scrutiny by committees such as this one, which would consider the proposed legislation before time is even allocated to a debate.

There ought to be scrutiny of each element. It is a question not only of whether the general principle ought to be dealt with by way of emergency but whether each element ought to be in the legislation. The select committee recommended that there be a presumption in favour of a sunset clause and, if a sunset clause is not used, that there be justification for that. I commend the select committee’s conclusions and suggest that members read the report because it is quite detailed.

May I stop you there? I take your point. I have read your submission, but it is a matter of definition. If we need emergency legislation, we do not have time to do all those things. Clearly, it is a good idea—you will recognise that we do it all the time for most legislation.

My colleagues will pick up other issues. Does Mr McCreadie from the Law Society believe that anything in the act needed to be done by way of emergency legislation?

I am not entirely sure whether there was anything in the act that had to be enacted under emergency procedure, particularly given the substance of the ruling in Cadder, which seemed to look at the admissibility of evidence that was obtained by a compulsorily detained suspect in a police station and the Lord Advocate’s right to lead evidence that was obtained in that manner.

As I understand it, matters de facto conformed to the Lord Advocate’s guidelines, and solicitors were in a position to get to suspects in police stations. There did not seem to be a need to rush to legislate.

The emergency approach seemed to have been premised on the basis that the existing legislation was not compliant with the European convention on human rights. That was raised in the emergency debate. I do not think that that was correct. The Criminal Procedure (Scotland) Act 1995—prior to the 2010 act that amended it—did not preclude police officers from allowing solicitors to have access to detained persons, to advise them or even to sit in on interviews. Section 14 of the 1995 act did not make any such restriction. To have introduced emergency legislation on the basis that the legislation that applied here in our law was not ECHR compliant was entirely wrong. The question therefore arises: what was the emergency?

Indeed. I am wondering whether I could ask the question of Mr McGovern, as a practising lawyer. Can I describe you that way? You are not the only practising lawyer on the panel. From your position, do you have a different view?

No. I do not. I extend my thanks to the committee for inviting the Glasgow Bar Association. I do not think that I am the only practising lawyer here—

I was not suggesting that you are, but others are here wearing other hats.

I concur with everything that has been said by my colleagues.

After it became clear in the spring what the judgment in Cadder would be, after the Lord Advocate issued the interim guidelines and after listening to the debate in October that led to the legislation being passed, it was a source of some frustration to the GBA and to many solicitors throughout the country that although the legislation was technically passed through the emergency procedure, it was felt that it was perhaps anticipated, given what developed in the spring over Cadder. I think that I speak for many solicitors in saying that we felt that there was a lack of proper consultation of the profession in anticipation of the emergency legislation. That is a source of regret for us, but we have to move on.

Nigel Don’s line of questioning has taken me to where I wanted to go. The Lord Advocate issued interim guidelines in June 2010, and the revised guidelines were published in July 2010. During the debate on the emergency legislation, some members said that the guidelines were sufficient to meet the needs of the Cadder judgment. I want to know what the panel thinks about that, although I suspect that I know what the answer will be, having heard the comments so far. How robust would those guidelines be against any challenge?

The point that John McGovern made has been made to me by constituents: it was not an emergency, we knew that it was coming in the spring, and we should have used the springtime and early summer to consult on proper legislation and leave the word “emergency” out of it. Did the Government make an error of judgment in that regard? There are a couple of questions there, and I would be interested in your opinions.

The interim guidelines were adequate on an interim basis. I take my colleagues’ point that the issue was admissibility: the need to ensure the right to access to a lawyer for someone who is in detention in a police station so that the evidence could therefore be admissible in prosecutions. That was in place; I agree that there was a need for primary legislation to be introduced and for a statutory right for a suspect to have access to a solicitor once he or she had been detained.

However, there was time to get it right. I believe that the Lord Advocate’s guidelines gave us the space in which to consult properly and to learn from other jurisdictions, rather than rushing to legislate in a way that doubled and then quadrupled the length of time for which a suspect could be detained by the police, without any evidential basis—other than anecdotal information—for arriving at 12 hours and 24 hours. I accept that there is a need for primary legislation, but we could have taken the time to get it right.

Can you accept, however, that the back benchers and members of this committee who found themselves bounced into having to take decisions could accept the argument that the doubling from six to 12 hours was necessary in the interests of the suspect? For example, a suspect could be held somewhere to which it takes a bit more time to get a solicitor along, or where there are plenty of solicitors but they are all tied up in giving other people advice. I am not saying that that is necessarily why we all felt that we could support the legislation, but I accepted the argument that the cabinet secretary put forward.

Why not start at six hours? Six hours has been the period of time that has been in place since what is now section 14 in the 1995 act was introduced in the Criminal Justice (Scotland) Act 1980, following the Thomson committee. Why not start there and then consider increasing the time by six-hour increments if necessary, from six to 12 hours, and—perhaps exceptionally—from 12 to 18 hours, on the say-so of either a senior police officer or a sheriff?

As lawyers, our problem with simply imposing 12 then 24 hours is that it appears to be entirely random and not based on any study of what is required. I ask you to put yourself in the situation of a detained person who is young and possibly not terribly well educated and who is taken to a police station and told that they are to be detained. It is undoubtedly the case that they will be told, “You could be here for 24 hours.” From that person’s point of view, that is not a great scenario. The Law Society view is that a degree of moderation ought to have been applied to the imposition of extending the hours. The six-hour period would have been a good starting point.

Two points arise. First, the clear practical issue for island communities is how long it takes for a solicitor to get to a police station to see a detained person. Secondly, the experience in England and Wales is of significantly longer detention periods. What are the panel’s views on those points?

I take the point about island issues. Geographical difficulties may lead to exceptional circumstances in which longer detention times are needed, but why make it a blanket approach? Why take the same approach in the outer isles as in Glasgow, where there are lots of solicitors and, therefore, ample provision to get a solicitor to a police station well within 24 hours? Why not make things different in the outer isles? I see no need for a blanket approach to be taken.

What about the experience of England and Wales?

As an English barrister, perhaps I should pick up on that. There is a 24-hour period before someone has to attend court, but reviews are built into that period. There has to be a review after six hours and every nine hours thereafter. There are welfare checks to ensure that the person who is being held is fit. That is done for all sorts of purposes, including to check whether the person should still be detained. The custody officer reviews the person’s welfare and checks with the investigating officer what they are doing and whether the investigation is proceeding.

The Cabinet Secretary for Justice’s assertion in the debate that Scotland is replicating the English system is not entirely correct. The process that I have described is built into the relevant English act. On receiving the information from the Crown when a case comes to court, the first thing for a defence lawyer to do is to check the custody record, including whether the reviews were carried out correctly. If they were not, a challenge would be made that the detention was unlawful. The unfortunate result of having only a single debate in the Parliament was that it was not possible for that information to be put before the Parliament. A 12-hour period of detention without review is concerning for anyone, particularly any vulnerable persons who are detained. You are taking evidence next week from the Association of Chief Police Officers in Scotland. I hope that ACPOS will assure you that officers are being trained and advised that 12 hours should be kept as the maximum period and that there should be review throughout. That should be put on a statutory footing. It is most unfortunate that it was not put that way.

We should not easily take the default position that those who live on the islands, or in remote parts of Scotland, should automatically be expected to spend longer in a police station because there is not the same administration of justice in those areas. Under the European convention on human rights, the state has an obligation to ensure that there is properly resourced and effective administration of justice; it has to provide equal access to justice for all members of its population. If there are inadequacies in access to lawyers in outlying areas, the state should identify the problem and see how it can address it. The state should ensure better access to legal advice in those areas and not take the default position that those who live in some parts of the country face longer periods of detention than those who live in other parts.

Do you recall the argument on whether the guidance would have been robust enough to meet challenge along the lines of Cadder?

11:00

I appeared in the Supreme Court on behalf of Justice for our intervention in Cadder. The law lords made it clear that there ought to be a period of debate over the summer. Most unexpectedly, in that hearing they gave us a date of judgment, which allowed time for debate to take place. The Lord Advocate’s guidance arose to ensure that there would not be devolution minutes in the interim. Our view was that there would not be challenges as a result of the guidance, if it were implemented fully. The guidance dealt with the issue, although there were other extraneous issues relating to length of detention and getting solicitors into police stations, as a result of remuneration and so on.

As a result of the Strasbourg decision, the Cadder case has two limbs. First, a right to advice and a right to representation in interview must be made available. Secondly, if that does not take place, has the fairness of the trial that goes ahead been prejudiced irretrievably? Those two issues must be looked at. The Supreme Court did not strike down the Cadder case; it came back to the Court of Session and a decision was made here on whether the case should go ahead.

The issue did not need to be placed on a statutory footing given that there was guidance in place. There was an omission from the 1995 act that was covered by guidance for the period in which Parliament and Government needed to debate the additional features that would ensue from giving effect to the right.

I have a couple of questions about the consultation. If I may play devil’s advocate, the Scottish Government might say that it could not do much openly with that between the period of the hearing on Cadder and the decision, because it might influence the court decision in some way and be seen as being derogatory to the court. Does Alan Miller, in particular, accept that? More particularly, would giving the Scottish Parliament two or four weeks, for example, to look at the issue in more detail have caused any problems? Was the Scottish Human Rights Commission consulted before the emergency legislation was introduced?

No. As some members may or may not recall, we sent round a fairly frantic e-mail an hour or so before you went into the chamber to debate and vote on the legislation. That was regrettable. The Government could and should have opened up opportunities for a channel of communication with the SHRC—not necessarily to take every part of our advice, but to have heard more rounded advice before such a significant change to the criminal justice system was made overnight, especially on a human rights point. The SHRC was established by the Parliament and is recognised by the United Nations as an accredited institution, so we are in a good place to offer advice. I would certainly have done so.

It is a bit unfair to criticise only the present Government for creating this situation and introducing the emergency legislation. Since the early 1990s, I and others have pointed out to successive Scottish Administrations of all political colours that there was an anomaly that would not stand test, and that sooner or later there would be a case that would challenge it effectively. The issue was brought to the attention of successive Administrations, not just by me and others in Scotland but by the likes of the Council of Europe and the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. Not only was there not an emergency, but measures should have been put in place long in advance of the situation that arose. It is a bit disconcerting that 857 cases have not proceeded. That need not have happened, had the justice system in Scotland taken a more outward-looking and more forward-looking approach.

Would damage have been done and more cases added to the toll had there been a delay of two, three or four weeks to let the Parliament look at the matter a bit more?

No, because we had the interim safety net of the Lord Advocate’s guidelines. The police were allowing lawyers into police stations, so any evidence would have been admissible and cases would not have fallen.

I want to get back to the point about detentions. I am a Highlands and Islands MSP, and we are not just talking about islands but about places such as Wester Ross, the north Highlands and so on, where it can sometimes be difficult to get legal representation, especially over the weekend. I am sure that Professor Miller appreciates that a lot of cases take place over the weekend. There is definitely a need for allowing longer periods of detention so that people can get the representation that they must now get under the legislation.

The 12-hour period is a maximum period. If a solicitor can get there in 20 minutes, I am sure that that will happen. I am sure that in the central belt and the cities, representation will arrive very quickly, or there will be good reasons for it being delayed.

We have to look at the impact of the legislation on the real world in different parts of Scotland. With the best will in the world, Professor Miller, while it would be great to have unlimited resources and a fantastic criminal justice system in the Highlands and Islands that takes into account our geography and sparsity of population and all the rest of it, that is not going to happen, is it? The money is not going to be spent because it would be so expensive to provide exactly the same level of service in remote rural areas as can be provided in the middle of Glasgow. None of the political parties is going to commit to that kind of expenditure. We have to be realistic. We have to have the best system that we can get in the Highlands and Islands but, even at that, there will always be problems and difficulties.

I understand completely the reality of what you have outlined. However, as a first step, any Government should investigate what smarter and less resource-intensive ways there are of providing access to and advice from a solicitor. Perhaps it could look at innovative means of consulting, such as by using information technology, that would not be necessary in urban areas to ensure a better-resourced and more equal level of access to legal advice for those who choose to live in remoter areas of the country. That will have some kind of price tag, but it might not be as big as we think. We should at least investigate smart ways of improving access to justice in such areas before we default to taking them as no-go areas and making people spend longer in detention than they might need to.

I fully accept that we need to use all the innovative methods that we can, and I am sure that there will be ways of doing that, even if it is simply by using phone contact and so on.

On the amount of time in detention that is necessary, previously a suspect would be interviewed with a tape recorder and our system would require corroboration, and so on. The police might be able to get information from an individual that would allow them to tie up a case relatively quickly. Now that individual has to be represented by a solicitor, and it can take a bit of time to get a solicitor, for whatever reason, whether it be in the Highlands and Islands or the central belt. In certain circumstances, the police might need extra time to gather the necessary evidence or to prevent an individual from arranging for the disposal of evidence. I am sure that we will hear from ACPOS about that at next week’s committee meeting. There could be lots of other reasons why the police might need extra time if a solicitor has not arrived fairly quickly, but there might be a danger that a guilty party could get off because of the tighter timescale under the new system.

The gathering of evidence comes under a different section of the legislation, and the police can delay access to a solicitor if they need to make further inquiries. Unfortunately, only one section of the legislation has a reference to exceptional circumstances. There can be a delay of intimation without many safeguards being put in place at all, which is another issue that we have raised in our submission. Perhaps that would have been worthy of consideration during the debate. I do not think that, where there is a concern about evidence being destroyed, the gathering of evidence would be brought into any time extensions.

I am concerned that we are talking a lot about hypotheticals. We have had a lot of time since June, when the Lord Advocate’s guidance came into force, to see its effect in practice. The Government was fully aware that there would be a judgment in October, and it ought to have been gathering information from the police on the effects of the guidance and its impact on their ability to investigate cases, and to have come to Parliament with empirical evidence showing all the reasons why time extensions were necessary. We are concerned by this 12-hour blanket period, because it allows the police to use the whole 12 hours. Of course, the guidance—

But surely the whole process would be speeded up if a solicitor were able to come along within 20 minutes to advise the client, deal with things and so on. In such circumstances, it is unlikely that the accused would be there for the whole 12 hours. Have I got that wrong?

No—and I hope that that would happen in most cases. However, the experience south of the border when the 24-hour period was introduced—and indeed, 20 years ago, when solicitors were allowed into police stations—was that there is a balancing act involving the police, who are doing their job in their own environment, are in control and will assert what needs to be done in the course of their investigation. Legislation may stipulate a 12-hour period for investigation, but there might be circumstances in which a solicitor’s attendance at a police station will not make the slightest bit of difference to how long that period of detention lasts. Only when the case gets to court will the solicitor be able to make arguments about whether or not it really ought to have been that long.

There is also a question about the amount of information that the police have to give solicitors to allow them to make any representations at all. At the moment, there is no obligation on them to provide a single scrap of information to a solicitor who attends at a police station. All those things ought to have been dealt with in legislation.

This discussion is very interesting, but the fact is that, because there is no evidence base, we are all in the dark. Because it was emergency legislation, there was simply no time to gather that evidence; it was simply based on anecdotes from ACPOS. However, we are where we are.

On the question whether we should try to get the evidence and then review whether the emergency legislation is needed in its current form or whether it should be repealed or amended, we now have the Carloway reference group, which the commission is trying to ensure has the ability to access data on how the police are actually using the detention powers. It should be able to provide in six or 12 months’ time evidence for the Parliament’s consideration and to show whether in fact the legislation got it right and what amendments or repeals might be necessary. We hope that the evidence is being gathered just now and can be properly analysed by all of us, after which a more informed decision can be made about having a detention period of six, 12 or 24 hours. However, as I have said, because it was emergency legislation, we are all scrabbling in the dark a bit.

Another practical consequence of the legislation is that we do not know what constitutes exceptional circumstances. No doubt that matter will come before the courts, but we certainly have to find out what they are. It might be better to ask ACPOS about that, but at the moment we have legislation that envisages exceptional circumstances but no one here knows what they are.

Is it not better to be safe than sorry? Was it not better to pass the legislation then commission the Carloway report to give us a bit of time to look at the matter, see whether any changes are needed and deal with them? Had the legislation not been passed and had there been cases in which it was clear that someone had managed to get off with a serious crime because the law had not been changed, I can just imagine the outcry about the Government not acting quickly enough to plug the gap. The way we have done it might not have been perfect or ideal, but at least the gap has been plugged and we now have a review that is due to report very soon. Things can change at that point. Was it not better to have approached the issue in that way rather than the other way, which would have just left the potential for real problems to arise?

11:15

As I understand it, the focus of the Cadder judgment and the legislation is the rights of an individual when they are detained as a suspect in relation to an alleged crime. It is important that, following on from ECHR, Cadder and the debates in Parliament on the issue, people in that situation know precisely what their rights are, but it appears from the legislation, which is vague and untried, that people do not know what their rights are in that regard.

Again, I understand completely your safety-first approach to the matter. However, when a Parliament passes emergency legislation, it must have the highest regard to its effect on fundamental rights. The issue of the police’s capacity to carry out further investigations into a case, which may then lead to an effective prosecution, was not an overnight emergency. The police have been investigating crimes day and daily, year on year, without needing to rush to Parliament to say, “We need emergency legislation, because six hours is not enough. We need 12 and 24 hours.” That did not happen, so the driver did not come from the police. The police may have legitimate needs, but Parliament should not embark on emergency legislation without having proper evidence, because that is a slippery slope. What is the next piece of emergency legislation going to be about?

Previously, there was no need for a solicitor to be present, and that is the difference.

On Dave Thompson’s question, the point is that the panel’s view is that there was no gap to be filled, because the interim guidance and the published guidance covered the situation and, had there been another challenge along the same lines as Cadder, there would have been the interim guidelines to fall back on. Is that right?

Yes.

Yes.

Yes.

Yes. If the Lord Advocate issues guidance, the police and procurators fiscal must follow it, and they were following it from the evidence that was available. If a suspect who was detained asked for a lawyer but did not receive one, that would be an example of a police officer not complying with the guidance, and a devolution minute would be raised as a result. However, as far as we are aware, there is no evidence to suggest that the police were not doing their jobs on a wide basis.

But the panel can confirm that there was no gap to be filled, because there was guidance.

Yes.

The guidance would have sufficed for a period to allow further consideration to take place, but that did not happen.

I am interested in this point. I do not want to be rude, but if we get five lawyers, we usually get five opinions. It is interesting that you are now guaranteeing that during the period when the guidance was in effect, we would not have been challenged, and that if we had been, we would have been able to defend that successfully. That is a guarantee, is it?

I could not give a guarantee—

So it is not a guarantee. I was careful to listen to the language that was used, which was that you thought that the position would have been sufficient. While it might have been sufficient, you cannot be absolutely sure that it would have been sufficient to resist a challenge without our passing emergency legislation.

The Cadder case was about what the police were not doing. It was a challenge about the Lord Advocate’s acts, not about legislation. As we have heard, section 14 of the 1995 act needed to be amended in time as a result of the Cadder case. However, the challenge was about the Lord Advocate as head of the prosecution service and, therefore, everyone below her exercising their role. The guidance filled the gap by requiring police officers to make the right to access to a solicitor effective. Had the police not done so, that could have been challenged.

I understand that, but I also understand that the police and all the services were following the rules as they were laid down before Cadder, yet there was a challenge. The fact that they were following the rules at the time did not prevent a successful challenge.

The rule before the case did not require them to allow advice or representation.

I know that. This is the point that I want to come on to. I was interested in comments from various members of the panel about the amount of time that we had to resolve this issue. If I am quoting you correctly, Professor Miller, you said that you have been raising this issue since the early 1990s, it has all been known about for years, we have known that it has been coming and it could have been sorted long before now. Nobody has given their view on the seven very senior judges who ruled in the highest court in Scotland that things were all right—I paraphrase—and that we did not have to change. With all due respect, why should Parliament or Governments take your word for it as opposed to the word of the seven High Court judges?

Did not Lords Hope and Rodger deal with that issue in the Cadder judgment? Did they not deal with the seven-judge decision?

Eventually, but at the time what we had in place was the ruling from the seven judges, was it not?

I think that Lord Hope—if not Lord Rodger—said that it was a surprise to them that this issue had not been raised before in Scotland, because there was this clear anomaly.

Yes, but I am interested in why you do not seem to have any particularly strong view on the fact that this judgment was in place prior to the United Kingdom Supreme Court judgment. You do not think that that has any relevance or import.

What I said in answer to the first question was that lessons arise for all of us—Parliament, Government and the justice system—out of this episode. A lesson for everyone in the justice system is to be much more outward and forward looking than has, to some extent, been the culture until now. The McLean judgment perhaps crystallises the point that there was an inability to grasp what the European Court of Human Rights and the European convention on human rights required of the Scottish legal system.

We are a small country off the north-west of Europe. We have a distinctive legal system. You can understand why there might be some insularity, but in today’s world you cannot be insular; you have to be open and forward looking. Yes there is much to be proud of in our system, but we have to see ourselves as others see us. There is no doubt that this decision was waiting to happen.

Can I just ask about the other side of the coin? In a sense, nobody can give any guarantees about who might challenge what—that is perfectly obvious—but we now have legislation. Is the legislation ECHR compliant or might it be challenged as a result of the rush to pass it and the deficiencies in it?

Perhaps others will have better informed views on this than I have, but one of the victims of the rush to legislate is the police. I do not envy police officers in stations up and down the country who are having to make very difficult decisions about what are exceptional circumstances and in what circumstances they cannot allow the suspect access to a lawyer. What training, guidance, codes of practice and learning from other jurisdictions has there been to enable police officers properly to understand and apply the legislation? Is a telephone call in a particular case going to be equivalent to the practical and effective right of access to a lawyer to get advice and to have a lawyer present during the interview? Clearly not. Even when you give a suspect advice as a lawyer, what practice will there be to ensure that there is disclosure of information to the lawyer, which will ensure that informed advice can be given to the suspect?

Jodie Blackstock might add to this, but I think that in England when they introduced the Police and Criminal Evidence Act 1984 there were a couple of years when they had codes, training, interpretation and good practice, after which the police were better equipped to apply the law, which I hope meant that there were fewer successful challenges because of mistakes made by the police.

Having had a month or two to look at it, do you think that there are deficiencies in the legislation that might lead to challenges? You touched on the telephone call issue.

One area that may give rise to challenge is the lack of provision for children and vulnerable individuals. There is nothing in the 2010 act that takes account of someone who falls into either of those categories being detained for up to 24 hours. It is not difficult to imagine challenges arising from that scenario.

The Lord Advocate has, since Cadder, referred a number of cases to the Supreme Court for clarification. They cover issues such as admissions that have been made while an individual’s house was being searched, documentation or real evidence that have been recovered as a result of admissions that were made, and information that has been given during roadside interviews or at an earlier stage than in the police station. Are there serious issues there? Do you think that there is the potential for problems to arise from all that? Might further legislation be needed in that regard?

There are serious issues. As someone who practises in Glasgow sheriff court every day, I am aware of numerous challenges based on the particular issues that Robert Brown raises. The devolution minutes issue, which did not arise two or three years ago, is now commonplace, largely because of the Cadder judgment, and the Salduz judgment before it.

Specifically on the legislation, there are issues arising from how the police are coping with suspects. They are using SARFs—solicitor access recording forms—but I am aware of one challenge to an interview that occurred after a suspect declined to exercise his right to legal advice prior to interview. He was interviewed in the absence of a solicitor, and the form for the decision that was made by the suspect has been challenged. We are in fairly serious uncharted waters, and there is a long way to go.

We have a figure of 800-odd cases at present. We have not had much of a breakdown of that figure, but one imagines—from trying to view the matter in more general terms—that a reasonable percentage of those cases involve people who did commit the offences with which they are charged. There are worries, particularly with regard to rape cases and other such cases, that a number might go down the tubes. Have you any views on the eventual number of cases that might be a problem beyond Cadder? I presume that you cannot give out general information, but I would like to hear your views on the eventual number of cases and the extent to which there are problems beyond Cadder.

There is one issue that I have certainly not read about. The figure of 800 or so prosecutions has been mentioned, which seems to be the figure that is in the public domain. However, the public perhaps do not recognise that although prosecutions will continue at present, any interview that was undertaken with a suspect in the absence of a solicitor—a pre-Cadder type interview—will, by and large, not now be used by the prosecution. The prosecution may well continue on the basis of other evidence, but the point is that the decision may well weaken the prosecution’s force. It does not seem, to my knowledge, that that issue is being highlighted.

My final question will develop that particular point. I have heard suggestions that in a sense, the very fact of the ability to rely on admissions in the past—the court of seven judges and all that—has perhaps led to laziness in investigation and prosecution techniques. Can the panel comment on that from their experience?

In England, they have got round those problems, despite having the new arrangements in place for a number of years. They have managed to secure convictions, and they have not had the same difficulties. Although it is often said that there is no law of corroboration in England, in reality corroboration of some sort is offered in almost every English case because of the weight-of-evidence argument. Are there issues around investigations having allowed sloppy practices to creep in?

11:30

There are different practices in taking evidence of admissions. In a very basic situation, there might simply be a police officer writing things down in a notebook—although we now have electronic notebooks. In more serious cases, police officers might interview suspected persons, with or without a solicitor, and take a video or audio recording, which will be used in evidence or lodged for later trial proceedings. Those of us who have been in practice for some time can remember the very basic statements that police officers used to take and then read out in court from their notebooks. Generally speaking, it is hard to say what one should or should not do, but the more scrutiny police officers’ practices in taking evidence come under, the better—often for the police as much as anyone else. The less tight or controlled the situation, the more open to challenge it is likely to be.

As I have said, it is difficult to say what the police should or should not do in any given situation, because various situations can arise. However, if we leave those things unscrutinised, we will in the future face problems that are similar to those that gave rise to the Cadder case.

The issue of suspects waiving rights of access to a solicitor has been touched on briefly. Is there evidence, from other jurisdictions where the period of detention has been extended, of a change in the number of people who have waived such rights? Has the number increased, decreased or stayed the same? After all, an underlying concern is that more people might be more likely to waive that right if they are told that they are going to be detained for an extended period.

In January, research about the situation in England over the past 20 years was published. It is still the case that officers can sometimes—inadvertently or not—advise that there might be a delay in getting out of a police station if the person in question chooses to wait for advice from a solicitor. It does inform views. I am trying to remember the figures: in the past nearly 30 years from 1986, when the right to advice was introduced, the number of people seeking such advice has increased steadily from something like 20 per cent to almost 80 per cent. The figures have not undergone a full national check for the past five or six years, but are extrapolated from localised and in-depth studies of police stations, which show that almost 80 per cent of people ask for legal advice and that the 20 per cent who waive that right do so because of the length of time that they have to remain in the station waiting for that advice.

However, in explaining why they waived the right, that 20 per cent might also say, “What difference would a solicitor make? I know whether I’m guilty or not.” There is a real question about how the police go about informing suspects of their rights and that will require training and guidance. Although ACPOS’s guidance explains the purpose of the right quite well, the police still need to be fully informed to ensure that they can pass on to a suspect the right information about why he or she might want to have a solicitor present. Of course, the people who attend a police station are not criminals, but suspects. The police might have got things wrong; after all, they act on intelligence that they receive. Moreover, the person at the police station might well have been involved in a crime but might have a defence. The role of a solicitor is not only to advise the client to remain silent but to advise them that, if they have a defence, they should put it forward. It is crucial that suspects in a police station fully understand the purpose of having legal representation.

On what Mr Brown said about challenges, the glaring absence from the legislation is the right to representation in a police interview, although it states that there is a right to advice. Such representation is what the Cadder judgment gives effect to, as well as the right to advice. It is clear from the judgment that that is what is meant. The SARF forms that Mr McGovern just spoke about do not include an obligation to explain that suspects have a right to representation.

Just to be sure, you seem to suggest that there has been no increase in people waiving their rights because of the extension of the periods for which suspects can be detained in England. In fact, the position seems to be the other way round.

No.

The two may not be connected.

They probably are connected, but there was not an extension of time in England and Wales—it is also up to 24 hours. It is difficult to see whether that had an impact, in the way that you could find out here through research, because there was no correlating extension of time at the point when the right came, nor is it possible—

I am sorry, I did not explain that well. When someone is being detained, an application can be made for an extension beyond the normal period. Has that led to people being more likely to waive their rights?

I am not aware of any research about that.

Okay. Thank you.

Section 7 of the 2010 act put in an additional test on finality and certainty for cases that the Scottish Criminal Cases Review Commission may refer. It has been suggested that that condition may be a constraint in dealing with cases in which there is a potential miscarriage of justice. Does anyone on the panel have a comment on that?

Yes. I am glad that we have the opportunity to touch on this issue before we close the session. This is a clear example of a measure that was introduced through emergency procedures without any requirement by the Cadder judgment to do so, and which also went beyond that judgment in that it applies to all cases that the Scottish Criminal Cases Review Commission will look at and not just to cases relating to a Cadder point. There is a real concern as to whether that measure will have a chilling effect on the hitherto successful work of the SCCRC and its relationship with the High Court, which can now turn away cases from the SCCRC and not look at them, as it had done up until the 2010 act was passed. It is a real worry that the measure was introduced for reasons that were not required by Cadder, and that it goes well beyond the implications of the Cadder judgment.

We have time for a short question from Nigel Don before we conclude.

I wonder whether I can get the panel to clarify my thinking, because many of the population may be thinking the same way. If, as you have said, the Lord Advocate’s guidance was adequate to deal with Cadder, why are we talking about over 800 cases having to be dropped? Are they only cases in which the interview occurred before the Lord Advocate’s guidance was put in place?

I do not think that we said that the guidance was adequate to deal with Cadder. Our view is that it was sufficient to deal with the interim set of circumstances and to allow debate. I think that it is accepted that the legislation had to be looked at and that something had to be done. However, the Lord Advocate’s guidelines could have stayed in place for a period to allow sufficient time to debate and scrutinise what required to be done.

Forgive me, but I have already heard that and I am not disputing it. However, I still want to know where the 800 or so cases came from. The only conclusion that I can draw from the statement that the Lord Advocate’s guidance was good enough is that all the cases that have had to be dropped are cases in which the interview took place before the Lord Advocate’s guidance came in. If that is not the case, could somebody explain to me in short words and, preferably, short sentences why those cases have had to be dropped?

To my knowledge, those cases would have involved pre-Cadder interviews, but none of us works for the Crown Office and Procurator Fiscal Service, so we cannot confirm that.

That is your logic, as well. Your understanding is that that would be the case.

That would be my logic, but I qualify that by saying that there are now challenges regarding post-Cadder interviews in which the suspect has apparently exercised his right at the police station, in terms of the SARF form, not to have a solicitor present. Issues arise about the informed nature of the consent in such decisions.

I understand that. There will be many other issues, post-guidance, about what Cadder introduces. Thank you.

I would like to clarify that point. The Supreme Court said that cases that were still live—which would include those going up to the point of final appeal—would be caught by its decision, whereas any case that was closed would be a matter for the Scottish Criminal Cases Review Commission, so those 800-plus cases could have been at any stage of prosecution from police detention up to final appeal. That might explain the number of cases. They would still be live for that reason.

The committee would be grateful to hear from the witnesses on anything that has not been covered, but I urge you not to repeat what has already been said.

I would like to make one brief point. Forgive me if I am paraphrasing, but Mr Maxwell said that it seems that no one had pointed out that a solicitor being denied access to a police interview was a situation that lay latent for some time prior to Cadder. However, the Glasgow Bar Association wrote to the Cabinet Secretary for Justice in June 2009 and pointed out that the Salduz decision changed matters in Scots law.

I am aware of that, but I refer you to the point that I made to Mr Miller. With all due respect to your highly respected opinion and that of the Glasgow Bar Association, there was a ruling in place from seven High Court judges.

I absolutely accept that.

I encourage everyone not to reopen that discussion. Are there any other points?

I have a very brief point. If it is envisaged that we are to have people in custody for 12 or up to 24 hours, some thought should be given to the conditions in which they are held. That in itself may give rise to challenge. If a young person is held in fairly poor conditions for a long period, they may well give up their right to a lawyer just to get out early. I am not sure that that has been addressed.

As an outsider looking in who has watched the debate about how these matters have come before the court, and who has listened to the rhetoric that has surrounded the issue, I make the point that we are not talking about a decision that has been imposed as a result of a situation in Turkey where someone has been tortured, as seems to have been suggested; we are talking about a keystone rubric of Scottish justice, which has been identified and extrapolated by Lord Rodger in the Cadder judgment. The Criminal Procedure (Scotland) Act 1887 gave effect to the right to advice and representation before the sheriff court, and the judgment returns that right to a suspect, who could be anyone. It is very important that it is seen as a positive thing that returns equality of arms, rather than an imposition by an outside court, whether in Strasbourg or in London.

Okay. I thank all the witnesses on the panel for their time. All the committee members have found your evidence to be extremely helpful. Thank you.

11:44 Meeting suspended.

11:50 On resuming—

Before we move on to agenda item 4, I invite the committee to decide whether to invite a representative from ACPOS to give oral evidence alongside the cabinet secretary at next week’s meeting. The cabinet secretary has suggested that; a short letter from him is among members’ papers. A separate committee decision is required because ACPOS is not one of those organisations that the committee previously agreed to invite under the heading of the Cadder evidence that we have just discussed. Do members have any views?

From some of the evidence that we heard this morning, it is clear that ACPOS would have something to say and it would be in our interests to find out what is happening on the ground. I suggest that we take evidence from ACPOS and then from the cabinet secretary. I do not want to set the precedent of taking evidence from them both together. The cabinet secretary is responsible and he should be required to give evidence on his own.

The clerk has advised me that it is likely to be one panel with ACPOS and the cabinet secretary together.

Surely we should advise the clerks how we want the meeting to go ahead, and I think that it would be better to have the cabinet secretary on his own.

The panels should most definitely be separate in this instance. To have them together would be inappropriate.

I cannot see the problem. I do not really see what the issue is and why it would be so inappropriate to have them together. We should take evidence from ACPOS next week, but I am confused about why it would be inappropriate to have representatives from ACPOS sitting on the same panel as the cabinet secretary. Frankly, I do not see the problem.

I was going to make the same point, convener.

I take the opposite view, because a cabinet secretary is different from any other witness who comes before this or any other committee. The cabinet secretary represents the Government and is the responsible officer. To mix up his role, even by implication, with that of representatives from ACPOS is not at all satisfactory. It sets a bad precedent.

There seems to be agreement that we should invite a representative from ACPOS. Is the committee happy for me to discuss the issue with the clerks and others and decide what is the best mechanism for taking evidence, and whether there should be one panel or separate sessions? We are agreed that we need to invite ACPOS, but there needs to be a separate discussion about how we manage that.

With great respect, convener, that is a matter for the committee. It may be that the view that is taken is one that is hostile, but it is an important point. I do not think that it is a matter that should be sorted out behind the scenes; it is a matter of principle.

From a purely practical point of view, that will mean that we will end up taking an awful lot more time over the issue. It could be much more beneficial to take evidence from both of them together because a lot of the points that we want to raise could be answered by the cabinet secretary and ACPOS at the same time. I do not see why there should be any difficulty with that. Time is a problem for us, although we should not make it the overriding factor. Would members like to elaborate on why they think it would be inappropriate to take evidence from both the cabinet secretary and ACPOS together?

I agree that we should have separate panels. The committee now has to resolve the issue. There are different opinions that the committee has to resolve, rather than allowing a separate discussion to happen off screen.

The separation of the panels is appropriate because the cabinet secretary is responsible for Government policy, and we are going to be discussing a policy matter.

ACPOS’s views on policy are, of course, of interest, as are those of others, and those views should be treated with due respect, but the panel that deals with policy has always been separate and discrete. That panel should be formed by the Government.

To be helpful, I say that I will not die in a ditch on the issue. I see no particular problem but, if members feel strongly about the matter, let us have two panels. I have no big issue with that; I just thought that it would probably be practical and helpful to have one panel, given that we have a heavy agenda. I agree with Dave Thompson that one panel would be quicker but, if other members have a difficulty with that, that is fair enough—I do not mind.

We agree that we should invite ACPOS to give evidence, but we seem to disagree about whether to have one or two panels. I am conscious of the timing, but I am prepared to put the issue to a vote.

I say with respect that you do not have to do that. On my side of the table, it has been suggested that one panel might be quicker. I still think that one panel would be quicker, but if a principle is at stake, let us stick to that and hear from the cabinet secretary separately.

That is fine. Do we agree to have two sessions—one with ACPOS and one with the cabinet secretary?

Members indicated agreement.