Council of Europe report on Scotland condemns practice of refusing detained persons’ access to a lawyer

Detained persons are entitled to have a lawyer notified of their detention, the place of their custody and that legal assistance is required – under s.43 of the Criminal Justice (Scotland) Act 2016. Section 44(1) affords detained persons the right to consult with a solicitor at any time.

The delegation from the Council of Europe European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) found that the right of notification to a solicitor operated well in practice and was afforded to all persons interviewed in police custody.

However, several people the delegation spoke to said they were refused requests to speak to their lawyer on the phone, with custody staff speaking to the lawyer on their behalf.

The first time that many of the detained persons were able to talk with their lawyers was just before attending court on the following Monday.

Under Scots law, exercise of the right to access a lawyer may be delayed, so far as that is necessary in the interests of the investigation or the prevention of crime, or the apprehension of offenders, by a constable of the rank of sergeant or above, and who has not been involved in the investigation in connection with which the person is in custody.

The CPT said that while it recognised it may exceptionally be necessary to delay for a certain period a detained person’s access to a lawyer of thier choice, this should not result in the right of access to a lawyer being totally denied during the period in question.

In such cases, access to another independent lawyer who can be trusted not to jeopardise the legitimate interests of the investigation should be organised.

In 2012, the CPT flagged its concern that the relevant provision (Section 15A of the Criminal Procedure (Scotland) Act 1995) should be amended to reflect the principle that access to a lawyer should be granted unless there are exceptional circumstances.

Given the recent reform of the Scottish criminal justice system and the introduction of the Criminal Justice (Scotland) Act 2016, the CPT said it is “disappointing” that this principle has not been reflected in the updated legislation.

It recommended that Section 44 of the Criminal Justice (Scotland) Act 2016 be amended accordingly.

The Scottish Legal Action Group (SCOLAG) told Scottish Legal News: “We share the concerns raised and would endorse the CPT’s recommendation to the effect that the government should implement a system whereby, even if a suspect is denied access to a particular solicitor for good reason, an alternative solicitor is made available to the suspect without delay.

“If the government is not minded to implement such a system, given the importance of the right to legal assistance in police custody, we would be in favour of legislative amendment which would render any incriminating evidence obtained during a period in which the police have elected to delay legal assistance inadmissible.”

The UK government said in a response: “Decisions by Police Scotland to delay access to a solicitor are rare and must be fully justified. Where it does happen, the individual can lodge a complaint using Police Scotland’s established complaints process.

“Police Scotland is operationally independent of Scottish Ministers and responsibility for considering complaints about the conduct of police officers lies with the Chief Constable.

“Ultimately, a decision to delay access to a solicitor can be subject to scrutiny in court by Scotland’s independent judiciary.”