Report and Recommendations - Scottish Government

in police custody, before that suspect had the opportunity to obtain access to alawyer (except in special circumstances).1.0.3 In taking this approach, the United Kingdom Supreme Court made it clear thatthe current law and practice in Scotland, whereby a suspect could be detainedfor a period of up to six hours and questioned during that period without theopportunity of access to a lawyer, could not continue. This decisionoverturned the previous approach taken by the Scottish courts, most evidentlythe Full Bench 3 High Court decision in McLean 4 , that, despite the lack of aright of access to a lawyer prior to questioning, the right to a fair trial wassafeguarded by other rules of criminal evidence and procedure. Thesesafeguards included the comparatively short maximum period for detention,the overall fairness test for admissibility of statements by a suspect and therequirement for corroboration.1.0.4 Cadder raised questions not only about how the law should be changed tosecure legal advice for suspects at the appropriate time, but also about theutility of current checks and balances in the criminal justice system which had,until Cadder, been thought sufficient to guarantee fairness in the trial process.1.0.5 In response to Cadder, the Scottish Government introduced, and theParliament passed, the 2010 Act which was intended to address immediatelysome of the issues and uncertainties which had arisen. In particular, the 2010Act provided for the right of a detained suspect to “a private consultation with3 seven judges4 HM Advocate v McLean 2010 SCCR 5912