It is not for me to comment on the success or otherwise of the Scottish Government as it tinkers with the criminal law, seemingly intent on following predominantly English principles. However I consider there is an urgent need for clarity in at least one area.
The clamour, post-Cadder, to ensure that Scots law met human rights requirements meant that legislation and procedures were introduced quickly. That does not excuse the issues that persist in relation to detention under s 14.
While s 14 brings difficulties in coordination between police and nominated solicitor where a client wishes the solicitor's attendance at an interview, what concerns me as a defence lawyer is the complete lack of clarity regarding what should take place before and during an interview.
There appears to be no requirement whatsoever on the police to give any information regarding the subject matter of an interview, nor any guidelines. It seems to me that those officers who choose to, do so only out of courtesy; and that even these officers always retain certain surprise elements of evidence for the interview.
This is entirely unsatisfactory, both for those investigating crime and those dealing with the suspect. For the former, it means that invariably clients are advised to make no comment during interview. Much more importantly as regards the administration of justice, often the solicitor considers it not only appropriate but almost imperative that his client provides a position, i.e. one involving an alibi or incrimination or simply an explanation of the circumstances and the suspect's involvement or lack of it.
Without full information, and at risk of being ambushed, the instructed solicitor is left in a very difficult and at times hopeless situation. The fear is that in taking a client’s instructions against the information provided by the police and advising the client that they should answer questions, other information will be produced during the interview, significantly damaging the suspect's credibility where the unexpected question is not answered with the same clarity and confidence as other questions.
In a recent case I was advised that a client had been detained in relation to s 1 of the Sexual Offences (Scotland) Act. The police officers refused to give any more information, and when I opined that I would be unable to advise my client without at least some information, they repeatedly suggested I was refusing to give advice. I have made a complaint, but this is not an isolated incident, and it is worrying that in a society with a well-developed criminal law, we have such a gaping hole in a very important procedure.
There is also no guideline or legislation that appears to allow a solicitor to intervene during an interview. I am not alone in having been threatened with being put out of an interview for making comments regarding fairness of questions or the general conduct of the interview.
For investigators, it must be of concern that the current situation leads to a very high preponderance of “no comment” interviews. These benefit nobody. And why has no one in the Crown Office & Procurator Fiscal Service seen fit to tell the police that four pages narrating questions with the answer “no comment”, is a particular waste of police resources, typist time and paper?
It is time the Scottish Parliament rectified this wholly unsatisfactory state of affairs.Neil F McPherson, Kilmarnock