Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
of non-qualified persons posed a problem in relation to the quality of advicebeing tendered, which of itself in turn discouraged suspects from seekingadvice. Even in relation to qualified persons, research indicated that, to beeffective, the regime required the solicitor to be able to establish and maintaina relationship of trust with the client. This necessitated a willingness on thesolicitor’s part to take an active interest in the client’s predicament, includinghis/her welfare, to spend sufficient time to understand the nature and extent ofthat predicament and to provide reasonably comprehensive advice whereappropriate.Intimation6.1.27 The first step in securing the suspect’s right of access to a lawyer is the contactwith a solicitor made by the police at the police station. Section 15A (7) of the1995 Act states that intimation to a solicitor must be sent by a police constable.This has been interpreted by some as meaning that the intimation has to bedone personally by a police officer, as distinct from, for example, a civilianpolice employee. It has also been said that it means that a solicitor, and notsomeone from his/her office or call centre, must be spoken to. It would seemsufficient if the intimation is caused to be sent, rather than that it be donepersonally, by a police officer. Again, there is no need for the intimation to begiven to the solicitor personally. It should be sufficient if intimation is madeto the solicitor’s usual place of business or contact number. There is no reasonwhy the form of intimation should be restricted to telephone contact. What isimportant is that a system is developed that allows for the most effective andefficient means of contacting solicitors promptly. This should include e-mail154
and text contact or other forms of electronic communication. Legislation inthis area should not preclude or restrict intimation to forms of communicationthat may become outdated.Solicitor of Choice6.1.28 In looking at the practicalities, the Review recognises that there are at leastthree different categories of suspect, so far as solicitor of choice is concerned.There is, first, the suspect who has no preferred solicitor or firm of solicitorsand who may be content with one provided under the duty scheme. There will,secondly, be a suspect who knows the name of a solicitor, but who has had nocontact with him/her in the past. Thirdly, there will be the suspect who has apreferred solicitor, who has represented him/her on some, perhaps several,occasions and who might be expected to do so in the future. The right ofaccess to a lawyer does not extend to the provision of assistance from asolicitor of the suspect’s choice 30 . But it is normally undoubtedly preferableto allow the suspect to consult that solicitor, if he/she can accommodate therequest within a reasonable time, given that he/she will have some backgroundknowledge of the suspect. The importance to the criminal justice system ofthe client having confidence in the solicitor should not be underestimated.This is why there should be an initial effort to contact the nominated solicitor.Delay6.1.29 Delay in contacting and obtaining advice from the suspect’s nominatedsolicitor may harm an investigation. The suspect should not be able to avoid30 Criminal Legal Assistance (Duty Solicitors) (Scotland) Regulations 2011 reg 3, see generallyCroissant v Germany (1993) 16 EHRR 135, at para 29155
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<strong>and</strong> text contact or other forms of electronic communication. Legislation inthis area should not preclude or restrict intimation to forms of communicationthat may become outdated.Solicitor of Choice6.1.28 In looking at the practicalities, the Review recognises that there are at leastthree different categories of suspect, so far as solicitor of choice is concerned.There is, first, the suspect who has no preferred solicitor or firm of solicitors<strong>and</strong> who may be content with one provided under the duty scheme. There will,secondly, be a suspect who knows the name of a solicitor, but who has had nocontact with him/her in the past. Thirdly, there will be the suspect who has apreferred solicitor, who has represented him/her on some, perhaps several,occasions <strong>and</strong> who might be expected to do so in the future. The right ofaccess to a lawyer does not extend to the provision of assistance from asolicitor of the suspect’s choice 30 . But it is normally undoubtedly preferableto allow the suspect to consult that solicitor, if he/she can accommodate therequest within a reasonable time, given that he/she will have some backgroundknowledge of the suspect. The importance to the criminal justice system ofthe client having confidence in the solicitor should not be underestimated.This is why there should be an initial effort to contact the nominated solicitor.Delay6.1.29 Delay in contacting <strong>and</strong> obtaining advice from the suspect’s nominatedsolicitor may harm an investigation. The suspect should not be able to avoid30 Criminal Legal Assistance (Duty Solicitors) (Scotl<strong>and</strong>) Regulations 2011 reg 3, see generallyCroissant v Germany (1993) 16 EHRR 135, at para 29155
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