This article is about the problems we are facing following upon the decisions of the European Court on Human Rights in three cases brought before it against Turkey. The Court held in the case of Salduz [and confirmed it in the two later decisions this year] that Turkey breached his human right to have a fair trial as there was no lawyer present while he was interviewed by the police. The authorities in the UK cannot simply ignore these rulings and are going to have to find a way of complying with them or themselves be taken before the European Court. Following the decisions against Turkey, the Netherlands simply changed their penal code to require a lawyer to be present.

In Scotland it is extremely rare to have a lawyer present during a police interview, whereas in England it is common under the terms of their Police and Criminal Evidence Act, usually called PACE. However under PACE the accused can be kept in custody for up to 48 hours for interview in contrast with our maximum of 6 hours for detention.

We have a different legal system in Scotland from that in England but the ultimate authority on human rights issues in the UK is not the High Court in Scotland but the Privy Council in London, a court manned primarily by English judges. Are they going to be content to allow Scots not to have a lawyer present at interview when Englishmen do? It is the UK, not Scotland, that is answerable to the European Court.

However it is not that easy. Are we in Scotland going to have to consider some form of PACE here? Where are the lawyers to be found to be available to attend for these interviews and who is going to pay for it? If I am in court, I cannot also be in a police station while someone is being interviewed. Legal Aid funds are stretched enough without having to pay lawyers to attend police stations at any time of day or night. Will it mean people being kept in custody for longer to allow it to happen? What about police overtime bills caused by the officer concerned having to wait for the availability of a lawyer before he can conduct the interview?

To further complicate matters, a breach of someone's right to a fair trial in some regard does not of itself necessarily mean the trial is unfair. In other words you can still be legitimately and fairly convicted, notwithstanding a breach of your human rights. It is all a question of degree. For example evidence obtained under torture is simply never acceptable or admissible and could never be used to secure a conviction. In Salduz the conviction was held to be fairly obtained because there was sufficient other evidence before the court that was not tainted by the failure to have a lawyer present during the interview. The interview evidence could simply be ignored.

A similar conclusion was reached recently in the English Court of Appeal involving cases where hearsay evidence had been used. Europe had decided that the use of hearsay evidence was a breach of the right to a fair trial. The English court allowed the appeal against conviction where it was the only evidence but rejected others where there was other supporting evidence.

That itself causes us a problem. Because of the Scottish law on corroboration [see Hingston's Law March 2003] the evidence of an admission to the police by the accused is frequently essential to secure a conviction. An obvious example is where there are only two people present as is usually the case in allegations of domestic abuse. The evidence of the victim, usually the wife, is not sufficient in Scotland. Corroboration has to be found from somewhere and that is frequently by his admission. If that is now to be excluded following Salduz, where does that leave attempts to deal with Scotland's shameful legacy of domestic abuse? Or do we change our law developed over many centuries and do away with the need for corroboration thereby opening the door to many more wrongful convictions?

Greater minds than mine are to consider this problem shortly as there is a Salduz type appeal presently before our Appeal Court and it is expected thereafter to be referred to the Privy Council. Interesting days.