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Comments in response to the Criminal Procedure (Legal Assistance, Detention and Appeals) Scotland Bill
Dear Members of the Scottish Parliament,
The Scottish Human Rights Commission has significant concerns about the use of emergency procedure to consider the Criminal Procedure (Legal Assistance, Detention and Appeals) Scotland Bill and about the Bill itself
The judgment of the Supreme Court in Cadder v HMA does not require emergency legislation. The danger of rushed legislation which has not been subjected to proper consultation and scrutiny by Parliament is that situations like Cadder will be repeated. There is time to get all of this right. The recent experience of the implementation of the Lord Advocate’s guidelines requires evaluation to identify the real problems and the real solutions
The Commission therefore urges you to vote against the Government motion to treat the proposed Bill as an emergency Bill. If that motion is successful the Commission urges you to vote against the general principles of the Bill so as to allow for proper consideration to be given to the issues and for legislation to be considered under normal parliamentary procedure.
In the event that the debate on the Bill proceeds today the Commission draws your attention to the following significant concerns:
The effect of the Cadder judgement does not necessitate nor does it justify the proposed extension of periods of detention.
The Commission makes a number of observations below in relation to the provisions in the Bill on legal assistance and detention.
There are also a number of sections of the Bill that relate to matters that were not part of the Cadder judgment, in particular the proposed changes to the Scottish Criminal Cases Review Commission (SCCRC) which will fetter the ability of SCCRC to provide access to justice for victims of miscarriages of justice. The Commission also makes observations below related to the provisions in the Bill on appeals.
Comments related to legal assistance and detention (sections 1-3):
The Commission welcomes the legislative recognition of the right to have effective legal assistance as a means of ensuring the right to a fair trial
The Lord Advocate has had interim guidance in place for the past few months which have required police to allow access to a solicitor. The practical effectiveness of this guidance should be evaluated as a basis for legislative change
There is no empirical evidence to justify the proposed extension of time limits for detention without charge from 6 hours to 12 hours in the first instance with the possible extension to 24 hours.
It may, however, be the case that problems can arise in securing the attendance in person of a solicitor and therefore provisions to allow an extension of the detention period by 6 hours to a total of 12 may be appropriate in such limited circumstances. Such a minority of cases, however, should be the possible exceptions to a 6 hour detention rule and should not become the basis for a general rule itself.
Such an extension to the detention period should only be for the purpose of addressing the delay in providing access to a solicitor
It is likely that the longer period of detention will be disproportionately used in rural areas. In other words, there is a danger that a person detained in Fort William will find himself spending a lot longer in a police station that someone in Edinburgh
There is doubt whether a telephone consultation with a solicitor, who may or may not be properly informed by police of the reasons for detention, will provide effective legal assistance necessary to comply with the Article 6 right to a fair trial.
The proposed process by which a Custody review officer may refuse to hear representations from detainees is unduly broad and may result in discriminatory treatment of persons with disabilities, mental health problems or communications needs. Certification by a medical practitioner that the detainee is unfit to make such representations should be required to avoid a risk of arbitrariness.
Where a detainee has requested a solicitor, the custody officer should be obliged to give both the detainee and his solicitor the opportunity to make representations
Comments related to Appeals (sections 5-7)
Sections 5-7 are not required by the Cadder decision as they do not arise in any way from the Supreme Court’s judgment or from the changes proposed in sections 1-3 of the bill. These sections should be removed and be subject to proper consultation and Parliamentary scrutiny. In particular s7 is extremely concerning. The extension to the powers of the High Court will undermine access to court for victims of miscarriage of justice. It will have a chilling effect on the important function of the SCCRC to effectively review and address SCCRC alleged miscarriages of justice.
I would welcome an opportunity to discuss these issues further.
Professor Alan Miller
Scottish Human Rights Commission