Page last updated at 11:26 GMT, Thursday, 22 October 2009 12:26 UK

Police interview appeal refused

Judges wig generic
Appeal judges will give their reasons for the ruling later

Appeal judges have rejected a human rights challenge to police questioning of a suspect without a lawyer.

A test case on the issue, which could have affected thousands of prosecutions in Scotland, was being heard at the Court of Appeal in Edinburgh.

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

His legal team had argued that because he was questioned without a lawyer, the case against him should not proceed.

The case follows a decision last year by European judges who 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 had described the issue as of "the first importance" for the country's criminal justice system.

Mr McLean 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 upcoming trial intend to lead evidence concerning statements he made during the interview.

Legal fight

However, his lawyers had maintained that to carry on with the trial would be "incompatible" with Mr McLean's rights under the European Convention on Human Rights.

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.

Despite the legal arguments, a specially convened bench of seven judges in Edinburgh has ruled that it would not be a violation of Mr McLean's rights because legal representation was not available from the moment of entry into police custody.

They also held that the Lord Advocate, Elish Angiolini QC, Scotland's senior law officer, would not be acting outside of her powers by relying on evidence obtained at an interview conducted in the absence of a lawyer to seek a conviction.

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.

Mr McLean's legal team signalled they will now seek to take the legal fight to Britain's new Supreme Court.

The judges will give full reasons for their ruling at a later date.



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