By Paul Thornton
SENIOR police officers ignored a Scottish Government pledge to Europe to allow suspects access to legal representation during interviews for over four years, it can be revealed.
The Scottish legal community has been rocked by a shift in policy by the Crown Office over solicitor access to people being interviewed by police.
Prosecutors told forces that they must allow access to legal advice when suspects request it – a U-turn on the previous practice, last month.
It is thought the move came amid fears that a panel of seven judges at the UK Supreme Court is set to rule that denying access is in breach of human rights laws.
But documents released under freedom of information rules reveal that the Association of Chief Police Officers in Scotland (ACPOS) issued guidance going completely against a government pledge to Brussels to allow access, made in 2005.
In a response to the European Committee for the Prevention of Torture in 2005, the executive told Brussels that if a detainee asked to see his lawyer they could, unless there was “good reason” to prevent it.
But bosses at the ACPOS drew-up rules which warned officers that it would be “inappropriate” to ever allow any legal advice.
Solicitor John Scott, who has campaigned for the change in procedures, blasted the actions of senior police officers who issued the advice as “shocking”.
Mr Scott said: “ACPOS have been found out and must answer for why they issued this advice.
“In the McLean case in 2009 the Appeal Court in Scotland specifically mentioned that in suitable cases, access can be allowed under an officer’s discretion.
“It appears that, until September last year, this was simply not true, and the reason it was not true was the advice of ACPOS.
“If you were cynical, you might think that ACPOS were aware that many police officers were too reliant on the confessions of suspects rather than carrying out other investigations which might establish the guilt of suspects.
“In any event it appears that the rights of suspects were unimportant to ACPOS and that they allowed the Scottish Government to be embarrassed on an international level. The Scottish Government said one thing while ACPOS ordered that the opposite happen.
“It is scandalous and ACPOS should answer for why Appendix A was drafted in the way it was, and allowed to remain in direct breach of government undertakings until just before the hearing in the appeal court.”
Following a visit to the UK in May 2003 the European Committee for the Prevention of Torture (CPT) drew up a report asking for clarification on the arrangements in Scotland.
It warned: “The right of access to a lawyer should include the right to contact and to be visited by the lawyer from the very outset of their deprivation of liberty (in both cases under conditions guaranteeing the confidentiality of their discussions), and in principle, the right of the person concerned to have the lawyer present during police interviews.”
In March 2005, the then Scottish Executive responded to the concerns, assuring Europe that people were allowed access to a solicitor.
It read: “The Scottish Executive accepts in principle that if a detained person requests access to a lawyer, or vice versa, this should be allowed, unless there is good reason to deny such access e.g. in the interests of the investigation, the prevention of crime or the apprehension of offenders.
“The extent of access should remain a matter for the professional judgement of the police who will have to consider the matter carefully before reaching a decision.”
But following this ACPOS drew-up rules to guide police forces on the detention and questioning of suspects.
The advice – known as “Appendix A” in the Guidelines on the Interviewing of Suspects and Admissibility Generally – said that it would be “inappropriate” for a police officer to exercise that discretion in favour of allowing access.
It read: “It is true that the police have an element of discretion in terms of permitting solicitor access. The police could allow a suspect to see his or her solicitor. Equally a solicitor who arrives at a police office asking to see a detained client could be granted such access. It is submitted that, while this discretion exists, it is inappropriate to exercise it.”
ACPOS admits that this “effectively advises officers not to permit access to solicitors under any circumstances”.
But, following publicity surrounding the case heard in Scotland last year, a “hastily organised” meeting took place between senior police officers, Crown Office prosecutors, Scottish Court Service Staff and representatives of the Scottish Legal Aid Board.
The meeting was held on June 15, the day after former Scottish Conservatives justice spokesman Bill Aitken wrote to the Scottish Government seeking assurances over the “impending disaster”.
During the meeting these key people all but accepted that the current set-up could not continue and discussed the negative impact on detection and conviction rates for police.
And just days later – on July 8 last year – Assistant Chief Constable Hamish Cormack, the secretary of ACPOS, wrote to all forces asking them to bin Appendix A.
In it, he stated: “Crown Office have been considering the potential implications and reviewing current ACPOS guidance on this matter.
“They have concluded that Appendix A – Suspects Access to Solicitors in Scotland should be removed from the Police Information Network and officers should be directed to ACPOS Guidelines on the Interviewing of Suspects for guidance.”
A spokesman for ACPOS insisted: “ACPOS have been working closely with the Crown Office and Procurator Fiscal Service to ensure that police guidance and practice in relation to solicitor access is updated in conjunction with any developing cases.
“In September 2009 ACPOS guidance at that time was re-emphasised to all officers in advance of the Maclean v HMA appeal case in Scotland, that: ‘It is of course open to the Police to grant access to a solicitor should he or the suspect request it. Where access is not granted, then reasons for this should be properly documented as this issue may well be raised in any subsequent trial’.”
A Scottish Government spokesman said: “The content and use of ACPOS guidance is a matter for the police.
“The position of the Scottish Government remains, that those in detention should have the right of access to a solicitor on request.
“The Lord Advocate has now issued guidance requiring the police to offer access to a solicitor before and during the detention period in serious cases from 9 June, and in all cases from 8 July.”
The spokesman added that ACPOS was “well aware” of the Scottish Government’s position regarding access.
