This document provides model answers to 3 questions taken from the 2020/2021 past paper for the Law of Evidence module. Author achieved a first class grade for the module.
Discuss the development of the law concerning the suspect’s right to have
access to a solicitor in Scotland during police questioning.
[100 Marks]
Model Answer
There was formerly no right for a suspect detained in Scotland to consult with a solicitor
during the period of detention, nor to have a solicitor present during a police interview. An
exception to the rule was eventually provided under s.15 of the Criminal Procedure
(Scotland) Act 1995 (“CPSA 1995”), entitling an intimation of the detention to be sent to a
solicitor. The Scottish courts believed that the absence of the right to access a solicitor did
not conflict with the European Convention rights. In Paton v Ritchie (2000), Lord Justice
Clerk Cullen echoed the widespread belief that there was no such necessity to have a
solicitor present by stating: ‘[N]either Scots law nor the European Convention required that in
all cases a detainee be afforded the opportunity to have his solicitor present’. This idea was
carried through subsequent cases in Scotland, such as Dickson v HMA in 2001.
However, in 2008, the right to have a solicitor present during police interrogation was
challenged with respect to the Convention in the European Court of Human Rights. In Salduz
v Turkey (2008), the suspect was detained without a solicitor present and ultimately gave a
confession to certain offences. Although he was made aware of his right to remain silent, it
was argued that the police stated that until he confessed, he was forbidden access to a
solicitor. The Grand Chamber concluded that the right of a suspect to have a solicitor present
during the police interrogation “is one of the fundamental features of fair trial” under Article
6. The only lawful exception is where it can be “demonstrated in the light of the particular
, circumstances of each case that there are compelling reasons to restrict this right”. In other
words, there had to be clear evidence of “good cause” for restricting the right to have a
solicitor present during the interview to amount to a fair hearing.
Despite this significant binding precedent, the development in the law stalled. The Scottish
courts remained somewhat stubborn and loyal to their own belief that the right to a solicitor
was not an ‘absolute’ right, dismissing Salduz. This was shown in HMA v McLean (2009),
where Lord Justice General Hamilton held that the Scottish legal system was “sufficient” to
provide suspects with a fair trial, including when interviewed without a solicitor. He stated:
“The fact that legal representation was not available did not itself constitute a violation of
Article 6”.
Nevertheless, the case of Cadder v HMA profoundly altered the development of the law in
Scotland. Cadder had been offered the opportunity to notify a solicitor of his detention
under s.15 of the CPSA 1995, although he declined. Subsequently, during the police interview,
he made several incriminating admissions and was convicted at trial. He appealed on the
basis that the police interview had occurred without a solicitor present, breaching his art.6(3)
(c) right to a fair trial. Ultimately, the Supreme Court held that following the decision in
Salduz, art.6(3) read in connection with art.6(1) of the ECHR required any suspect detained
under s.14 of the CPSA 1995 was entitled to consult a solicitor before the start of police
questioning, unless there were compelling reasons to restrict that right. Furthermore, the
Supreme Court stressed that the judgements from previous cases such as Paton, Dickson,
and McLean were insufficient to provide a suspect with a fair trial and subsequently all
previous cases were overruled. Lord Hope noted: “it is remarkable that, until quite recently,
nobody thought that there was anything wrong with this procedure”. The Supreme Court held
that Salduz did in fact have a direct effect in Scots law.
Immediately following the Cadder judgement, the law developed on a statutory footing. The
Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 was
urgently enacted to primarily create s.15A in the CPSA 1995 to grant suspects the right to
private consultation with a solicitor before and during police questioning. The law has since
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