Friday, June 18, 2010

Law Society anger at Elish ‘Labour’ Angiolini’s failure to consult about new changes to guidelines that allow suspects access to solicitors

Dear All

The Law Society of Scotland isn’t happy with Elish ‘Labour’ Angiolini, the reason they are annoyed that they were not consulted on dramatic changes affecting the profession before they were introduced.

Such is the annoyance they have sent a letter to Elish Angiolini, the Lord Advocate, making the point that the new guidelines on the way suspects are interviewed by police are incompatible with the code of conduct for solicitors.

Their point is that the interim guidelines could lead to complaints being raised by solicitors’ clients because the legal profession’s code states instructions to solicitors must come from the client directly.

Under the guidelines it would be the police who contact the suspect’s solicitor but if they fail to get a hold of them they would try another lawyer.

So, a possible remedy to make do, could be what they do in the US, provide suspects with a phone call but I suspect much more will have to be provided.

Professor Alan Miller, chair of Scotland’s Human Rights Commission also makes the observation that the changes introduced last week may breach human rights legislation.

Oliver Adair, the society’s legal aid convener said:

“The code, which all solicitors must adhere to, states: ‘Instructions must come directly from the person detained and not by virtue of the police arranging for a specific solicitor to be contacted who is unknown to and has not been requested by the accused’. This is in direct conflict with some of the advice given in the guidelines. It could be a major problem for solicitors. It’s unfortunate that the society wasn’t consulted during the preparation of the guidelines and didn’t have sight of them before they were published as we would have been aware that they conflicted with our code of conduct. We got the guidelines on Tuesday, almost a week after they were sent to the police. The letter expresses regret that we were not consulted earlier. The change came as a bolt out of the blue”.

Adair highlights what is not a uniquely Scottish problem, the lack of communication where diktat from on high replaces dialogue.

Adair added:

“We’ve requested an urgent meeting with the Lord Advocate and Crown Office to address the incompatibility of the interim guidelines with the code of conduct for criminal work, to ensure that our members can continue to meet their clients’ needs, their own professional standards and fulfill their duties to the court.”

I can help but feel that ‘Labour’ Angiolini will be too much sympathy for their plight, she may simple say she understands their ‘pain’ and advocate changing the code of conduct.

Under Scots law currently, suspects can be held for six hours and questioned without a solicitor being present.

This is before any before anyone is formally charged and arrested.

In England since 1984, suspects had the right to a solicitor being present but the Scottish Legal System lags far behind.

No one was watching out for the rights of the accused.

Fairness espoused by all political parties has limits; ‘tough on crime, tough on the causes of crime’ mentality dominates across the political spectrum.

In the political world miscarriages of justice are seen as unfortunate but acceptable collateral damage.

Miller also said:

“Article 6 [of the European Convention on Human Rights] requires that each member state has to ensure there is an adequately resourced system of justice which can protect the right to a fair trial and ensure effective guarantees of an effective right of access to a lawyer. How that is done is up to each member state but it does have to be provided. We await the judgment with interest and cannot pre-empt it, but if there is not proper and practical access to a lawyer and police questioning goes ahead, then it could lead to a violation of the right to a fair trial.”

I think this is an issue that could feature in the new Holyrood Government post 2011 depending on which party manages to win either an outright majority or largest party in a coalition.

It is an issue that the Labour Party might run with not because of the human rights aspect but simply because it will move Scotland further into line with England. They then can present the argument of the ‘union benefit’.

Yours sincerely

George Laird
The Campaign for Human Rights at Glasgow University

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