Page last updated at 11:41 GMT, Thursday, 21 May 2009 12:41 UK

Human rights issue over arrests

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The ruling could potentially affect convictions in Scotland

The Scottish Government is to consider a European Court of Human Rights ruling to see if it may affect thousands of criminal convictions in Scotland.

Last November, judges in Strasbourg quashed the conviction of a man in Turkey because he did not have a lawyer present during a police interview.

In Scotland an accused person can be detained for six hours and interviewed by police without legal representation.

This provision in Scots law is now to be considered by an appeal court.

The Criminal Procedure (Scotland) Act 1980 introduced statutory powers of detention for six hours for the purpose of investigation.

During this period, the suspect is entitled to notify a solicitor and one other person that they have been detained.

If this case is upheld it's on a collision course with Scottish legal procedure
Neil Hay
MTM Defence Lawyers

After six hours the person must be freed or charged. If charged, the police are unlikely to have any further interest in interviewing the suspect, since they must have all the information they need to bring a charge.

This provision in Scots law has already been challenged, and an appeal court made a ruling that, in effect, it was compliant with the European Convention on Human Rights.

However, following the case in Turkey of a 17-year-old youth who had made a confession during questioning, concern has been raised again.

A case at Forfar Sheriff Court has been halted and made the subject of a "devolution reference" to an appeal court - to check whether it is compliant with the convention.

It is understood a second case, from Falkirk, has also been referred on similar grounds.

If the appeal court finds these cases are not compliant with human rights legislation, it could lead to convictions being re-examined with defence lawyers challenging key police evidence.

Assault cases

Neil Hay, of MTM Defence Lawyers in Falkirk, told BBC Radio's Good Morning Scotland programme that the judgement could affect thousands of cases currently going through the Scottish court system.

He said: "There are some cases this judgement will affect and they are those where there's very little evidence, for instance domestic abuse, sexual assaults and rape.

"In Scotland the law says that in order to convict a person there must be two sources of evidence.

"If this judgment is upheld in the courts in Scotland it will mean one of those sources, that is the police interview which might often amount to a confession, would not be able to be used by the prosecution at the trial."

Mr Hays said trials throughout Scotland were already being delayed and appeal hearings were being set down.

He added: "If this case is upheld it's on a collision course with Scottish legal procedure."



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