Page last updated at 17:42 GMT, Tuesday, 20 October 2009 18:42 UK

Appeal case over police interview

Court bench
The case is being heard at the Court of Appeal in Edinburgh

A human rights challenge to police interviews conducted without legal representation is being heard at the Court of Appeal in Edinburgh.

It involves Donald McLean, 20, from Angus, who faces prosecution on charges of stealing a car and fire raising.

His legal team maintain that because he had no legal representation when questioned by police, the case against him should not proceed.

If successful, the test case could have major implications for prosecutions.

It follows a decision last year in which European judges ruled access to a lawyer should be provided "from the first interrogation of a suspect by the police" unless compelling reasons could be shown for restricting it.

Scotland's senior judge, the Lord Justice General, Lord Hamilton has described the issue as of "the first importance" for the country's criminal justice system.

No obligation

Mr McLean is due to face trial at Forfar Sheriff Court later this year.

However, his lawyers are arguing that to proceed with the trial would be "incompatible" with his rights under the European Convention on Human Rights.

He was detained and questioned by police at Arbroath police station in July last year with no solicitor or offer of legal representation.

Prosecutors at his trial intend to lead evidence concerning statements he made during the interview.

Mr McLean's counsel, Chris Shead told appeal judges in Edinburgh that "the broad issue of principle" that arose was whether in seeking to rely on that evidence it would render the trial unfair.

At present in Scotland the law does not compel police to allow a solicitor to be present during the interview of a suspect.

However, a suspect has the right to have a lawyer informed about his detention.

Police must inform the person that there is no obligation to answer questions and the detention can last up to six hours, before release or charge.

The Scottish appeal court has previously held that it was not required in all cases that a detained person should be afforded the chance to have his lawyer present.

The current review is being undertaken by Lord Hamilton, sitting with the Lord Justice Clerk, Lord Gill, Lord Osborne, Lord Kingarth, Lord Eassie, Lord Wheatley and Lady Paton.

They are expected to give a decision at a later date.

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