Thomas Ross KC

In his address the first minister stated that his government would “remain committed to enhancing the rights of people of Scotland”. So how is that ‘ENHANCEMENT’ of rights coming along?

Perhaps the ECHR right that we value most is the Article 5 right to ‘liberty’. When Covid struck, the number of untried Scots in prison stood at around 900. Under the watch of the FM (and that of his predecessor) that number has more than doubled – now standing at more than 2,000. And remember – these are citizens who have not been convicted of any criminal offence.

Under what conditions are these prisoners incarcerated? Some locked up in their cells for 23 hours a day in with limited access to family and mental health support. In short, conditions so bad that this year an Irish judge refused to extradite a suspected criminal to Scotland on the ground that to do so might expose the prisoner to ‘cruel and unnatural treatment’.

Article 6 of the ECHR requires the State to provide a trial “within a reasonable time”? How well does the Scottish government comply with that provision? Well I dealt with a case recently where the co-accused was remanded in custody in 2021 and cannot reasonably expect a trial before 2025. That case has some unusual features but remand periods of two to three years are now very far from uncommon

What about the other fair trial protections? Well his government is currently considering following the example of Stalin’s Russia by abolishing the citizen’s right to trial by jury when accused of rape. Worse still – his justice minister gave the game away by putting the judges who will try cases without a jury on notice – that the proposal is made to meet concerns that too few rape cases end in a conviction. A proposal that provoked retired senator Lord Uist to voice concerns that the plan was non-compliant with the European Convention on Human Rights.

Surely the lawyers can do something about this sorry state of affairs? Well due to derisory increases in legal aid rates since the 1990s – many of the lawyers who did that work have gone out of business- while the younger generation – with rising housing costs – are understandably attracted to the better rates of pay on offer in commercial firms and (ironically) in the Scottish civil service.

But things could be worse. We could be members of the legal profession in Turkey – which has for many years been throwing its lawyers into jail in their hundreds, just for seeking to protect the human rights of their clients. So if I was preparing for an important talk in which I would claim to be a promoter of human rights in Scotland, I would probably have avoided posing for a selfie with Recep Erdogan, president of that country, as the first minister did during the recent COP28 summit.

This article first appeared on the Scottish Criminal Law Blog