THOUSANDS of Scottish criminal cases could collapse due to a European human rights ruling over police interviews.
Scotland is one of only a few EU countries where suspects do not have the right to legal advice during interviews with authorities.
But, after a landmark ruling in the European Court of Human Rights (ECHR) over a Turkish case, lawyers here are beginning to lodge legal bids to have evidence from interviews thrown out.
That case saw the confession of a 17-year-old Turk being retracted because he did not have a lawyer present during his police interrogation.
Article six of the human rights convention states that everyone has the right to a fair trial, including legal representation.
In November last year the ECHR decided that this applied to pre-trial investigations and upheld his appeal that a confession was inadmissible as evidence.
Since 2000 decisions made in the ECHR are binding on Scottish courts meaning the ruling could also see thousands of cases since 2000 being appealed.
It would also force police to overhaul their current system for investigation.
One Edinburgh solicitor claims there have so far been two successful applications in Forfar which the Crown Office are now appealing.
Solicitor advocate Matthew Auchincloss, of the Public Defence Solicitors’ Office (PDSO) said his firm last week launched the first devolution minute regarding the ECHR decision in Edinburgh and expects other lawyers to quickly follow suit.
Mr Auchincloss said: “There have been a series of decisions come out from the ECHR ending in February this year saying that where an accused person has been interviewed by police without the presence of a lawyer his human rights have been irrevocably breached and he can’t have a fair trial.
“It could be that in all of these cases the Crown could not seek a prosecution.”
That would be a time-bomb which could blow apart the current Scottish system.
Mr Auchincloss said: “If these arguments are held there will necessarily have to be a change in the law to allow accused persons to be assisted during interviews which would bring us into line with England and most of the EU.
“It could also mean convictions since 2000 could be appealed.
“We are talking about thousands of cases.
“It would be a completely different way to how the initial investigations of a case go.
“It would exclude all confessions elicited during police interviews and also anything they said after being cautioned.”
And, Mr Auchincloss said, the argument is not merely a loophole for criminals – he claims he often sees vulnerable people interviewed without help.
He said: “I recently dealt with a case in Haddington where a 16-year-old boy with learning difficulties and police interviewed him under caution with no advice and no adult present for him.
“This would mean an extra level of protection to allow people access to a legal representative during their police interview.”
Mr Auchincloss said lawyers from countries where legal advice is a right during interview find it incredible that Scotland has a different system.
He said: “I work with a Polish lawyer and she was appalled when she learned we were not allowed legal representation in interviews.”
Although Mr Auchincloss is the first lawyer in Edinburgh to lodge an appeal in respect of the ruling, he said a sheriff had already accepted two similar cases in Forfar.
He said: “There have been two cases where the sheriff has upheld the submission and the Crown are currently appealing the decision.
“The Crown are well aware of it but they are trying to keep it quiet.”
But the Crown Office have denied that any case has been upheld in Scotland and say the Appeal Court has already ruled that suspects do no need legal representation during police interviews.
A Crown Office spokesman said: The Crown is not aware of any court in Scotland sustaining an objection to the admissibility of evidence on the basis of the cases from Turkey.
“The Crown Office Appeals Unit has confirmed that there are no current appeals on the point in question. While the issue has recently been raised in two cases in Forfar, the court has not heard any argument on these.”
The spokesman said a 2000 case before the Court of Appeal ruled that neither Scots law not the convention on human rights insisted on the right to representation.
They said: “That decision remains binding on all Scottish courts. The position could only be altered by legislation, by the Appeal Court convening a larger bench or by the Judicial Committee of the Privy Council overturning some future decision by the Appeal Court.”
An ACPOS spokesman added: “ACPOS is aware of the decisions made by the European Court of Human rights regarding Article six of the European Convention on Human Rights, but also that the High Court in Scotland has determined that neither Scots law nor the Convention require that in all cases a person who is detained should be afforded the right to have his solicitor present.”