The Right to Legal Assistance During Detention

Leverick, Fiona

doi:10.3366/elr.2011.0057

Cited by 5 publications

(2 citation statements)

References 14 publications

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“…The effect of this was clearly problematic as an important rationale for the right to legal representation is that it can be of assistance in understanding and enforcing the right to silence. 71 Prior to the decision in Cadder v HM Advocate 72 (to be discussed infra) and recent legislative changes in 2010 and 2016, this situation seemed out of step with other developed nations and particularly other members of the Council of Europe. For the unrepresented suspect, it may prove too easy to answer questions of a persuasive and intimidating police officer in the confines of the rather hostile environment of a police station.…”

Section: Scotlandmentioning

confidence: 99%

The Right to Silence and the Pendulum Swing: Variations in Canadian and Scottish Criminal Law

Campbell

2020

wclawr

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The right to silence is afforded to suspects in criminal cases as part of a number constitutional protections contained within Canadian law through the Charter of Rights and Freedoms. It is closely linked to other such rights, including the right to counsel, the right against self-incrimination and the presumption of innocence. Moreover, in some cases, the denial of this right has resulted in convictions in error through false confessions and wrongful convictions. Decisions by the Supreme Court in Canada in recent times can be viewed as a slow encroachment onto individual Charter rights in favour of the needs of law enforcement. In Scotland, until recently, while afforded a right to silence suspects could still be questioned for up to six hours without a lawyer present. While other measures existed to protect an individual’s right to a fair trial, such practices were out of step with the European Convention on Human Rights Article 6(1) right to a fair trial. In the decision in Cadder v HMA, greater protections to suspects were introduced regarding the right to silence and the right to counsel, and the Criminal Justice (Scotland) Act 2016 later consolidated the relevant law on this matter. The focus of this paper will be to examine how the right to silence in both Canadian and Scottish law has evolved through statute and case law and the implications of this for law enforcement practices, the protection of rights and the safety of convictions.

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Section: Scotlandmentioning

confidence: 99%

The Right to Silence and the Pendulum Swing: Variations in Canadian and Scottish Criminal Law

Campbell

2020

wclawr

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“…Prior to Cadder , suspects detained for police questioning in Scotland had the right to have a solicitor informed of their detention, but no right to legal assistance prior to or during questioning. The ECHR compatibility of this provision had been challenged unsuccessfully in the Scottish courts. The catalyst for change was Salduz v Turkey , a unanimous decision of the Grand Chamber of the European Court of Human Rights, where it was held that Article 6(1) requires that ‘as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of the case that there are compelling reasons to restrict this right’.…”

Section: Introductionmentioning

confidence: 99%

‘Substantial and Radical Change’: A New Dawn for Scottish Criminal Procedure?

Chalmers

Leverick

2012

Modern Law Review

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This paper discusses the recommendations of the Carloway Review, which was established to review law and practice in criminal cases following the introduction in Scotland of a right to legal assistance during detention. A number of recommendations are made in the Review, including the introduction of stricter time limits governing the detention of suspects, the removal of the corroboration requirement, the rejection of adverse inference provisions, and a change in the manner in which the appeal court deals with cases referred to it by the Scottish Criminal Cases Review Commission. It is argued that while some of these recommendations are to be applauded, others are poorly reasoned and some may lead to a dangerous reduction in protection against wrongful conviction.

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Exclusionary Rules in Comparative Law

Thaman¹

2013

Ius Gentium: Comparative Perspectives on Law and Justice

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The Right to Legal Assistance During Detention

Cited by 5 publications

References 14 publications

The Right to Silence and the Pendulum Swing: Variations in Canadian and Scottish Criminal Law

The Right to Silence and the Pendulum Swing: Variations in Canadian and Scottish Criminal Law

‘Substantial and Radical Change’: A New Dawn for Scottish Criminal Procedure?

Exclusionary Rules in Comparative Law

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