Report and Recommendations - Scottish Government

McLean2.0.30 The applicability of Salduz to Scottish procedure came under scrutiny by wayof an objection to evidence of a police interview in McLean 38 in 2009. MrMcLean was aged 19. He had been detained under section 14 in relation to hisinvolvement in the theft of a car and fire-raising. He had requested that thefact and location of his detention be intimated to a solicitor, but he was notgiven the chance to speak to a solicitor prior to questioning or to have asolicitor present during his interview. He subsequently made admissions atinterview that the Crown intended to rely on at trial and an objection to thiswas taken as a preliminary issue prior to that trial.2.0.31 Challenges to the admissibility of answers to questions in similarcircumstances had been considered in two earlier Scottish cases: Paton vRitchie 39 and Dickson 40 . In both it had been held that the safeguards in theScottish system were sufficient to ensure that, as a generality, the absence of asolicitor from the interview process, where a suspect had only been detainedunder section 14, did not of itself result in an unfair trial. That was to be thesame result as was subsequently reached by the Full Bench 41 in McLean.2.0.32 The High Court in McLean took into account the Convention jurisprudencewhich indicated that whether a person will have, or has had, a fair trialdepended not on an application of inflexible exclusionary rules but on looking38 HM Advocate v McLean 2010 SCCR 5939 Paton v Ritchie 2000 JC 27140 Dickson v HM Advocate 2001 JC 20341 seven judges39