Committee
Justice Committee 08 March 2011
08 Mar 2011 · S3 · Justice Committee
Item of business
Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010
Professor Miller
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We should not easily take the default position that those who live on the islands, or in remote parts of Scotland, should automatically be expected to spend longer in a police station because there is not the same administration of justice in those areas. Under the European convention on human rights, the state has an obligation to ensure that there is properly resourced and effective administration of justice; it has to provide equal access to justice for all members of its population. If there are inadequacies in access to lawyers in outlying areas, the state should identify the problem and see how it can address it. The state should ensure better access to legal advice in those areas and not take the default position that those who live in some parts of the country face longer periods of detention than those who live in other parts.
In the same item of business
The Convener
Con
Agenda item 3 is an evidence session on the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010, which resulted from an emergenc...
Nigel Don (North East Scotland) (SNP)
SNP
Good morning, colleagues. I start by asking a simple question. Regardless of the substance of what we enacted—although that is not entirely irrelevant, of co...
The Convener
Con
I do not know what you think is the best way of doing this—whether you all want to speak on all the questions, or whether you will decide who is the best per...
Professor Alan Miller (Scottish Human Rights Commission)
I am happy to kick off. First, thank you for inviting the Scottish Human Rights Commission to take part in this important discussion.It is a matter of regret...
Nigel Don
SNP
Thank you, Professor. Before I let anybody else pick up on the general issue—I want to stick to the general issue if we possibly can—I have a further questio...
Professor Miller
In my opinion, there was not.
Nigel Don
SNP
I put the question to the other members of the panel. Does any of you believe that anything in the legislation needed to be done on that day?10:45
Jodie Blackstock (Justice)
I will answer for Justice. On behalf of Justice, I thank the committee for hearing from us today.Our submission mentions a 2009 inquiry by the House of Lords...
Nigel Don
SNP
May I stop you there? I take your point. I have read your submission, but it is a matter of definition. If we need emergency legislation, we do not have time...
Alan McCreadie (Law Society of Scotland)
I am not entirely sure whether there was anything in the act that had to be enacted under emergency procedure, particularly given the substance of the ruling...
Raymond McMenamin (Law Society of Scotland)
The emergency approach seemed to have been premised on the basis that the existing legislation was not compliant with the European convention on human rights...
Nigel Don
SNP
Indeed. I am wondering whether I could ask the question of Mr McGovern, as a practising lawyer. Can I describe you that way? You are not the only practising ...
John McGovern (Glasgow Bar Association)
No. I do not. I extend my thanks to the committee for inviting the Glasgow Bar Association. I do not think that I am the only practising lawyer here—
Nigel Don
SNP
I was not suggesting that you are, but others are here wearing other hats.
John McGovern
I concur with everything that has been said by my colleagues.After it became clear in the spring what the judgment in Cadder would be, after the Lord Advocat...
Cathie Craigie
Lab
Nigel Don’s line of questioning has taken me to where I wanted to go. The Lord Advocate issued interim guidelines in June 2010, and the revised guidelines we...
Professor Miller
The interim guidelines were adequate on an interim basis. I take my colleagues’ point that the issue was admissibility: the need to ensure the right to acces...
Cathie Craigie
Lab
Can you accept, however, that the back benchers and members of this committee who found themselves bounced into having to take decisions could accept the arg...
Raymond McMenamin
Why not start at six hours? Six hours has been the period of time that has been in place since what is now section 14 in the 1995 act was introduced in the C...
The Convener
Con
Two points arise. First, the clear practical issue for island communities is how long it takes for a solicitor to get to a police station to see a detained p...
Raymond McMenamin
I take the point about island issues. Geographical difficulties may lead to exceptional circumstances in which longer detention times are needed, but why mak...
The Convener
Con
What about the experience of England and Wales?
Jodie Blackstock
As an English barrister, perhaps I should pick up on that. There is a 24-hour period before someone has to attend court, but reviews are built into that peri...
Professor Miller
We should not easily take the default position that those who live on the islands, or in remote parts of Scotland, should automatically be expected to spend ...
Cathie Craigie
Lab
Do you recall the argument on whether the guidance would have been robust enough to meet challenge along the lines of Cadder?11:00
Jodie Blackstock
I appeared in the Supreme Court on behalf of Justice for our intervention in Cadder. The law lords made it clear that there ought to be a period of debate ov...
Robert Brown
LD
I have a couple of questions about the consultation. If I may play devil’s advocate, the Scottish Government might say that it could not do much openly with ...
Professor Miller
No. As some members may or may not recall, we sent round a fairly frantic e-mail an hour or so before you went into the chamber to debate and vote on the leg...
Robert Brown
LD
Would damage have been done and more cases added to the toll had there been a delay of two, three or four weeks to let the Parliament look at the matter a bi...
Professor Miller
No, because we had the interim safety net of the Lord Advocate’s guidelines. The police were allowing lawyers into police stations, so any evidence would hav...