There has been a fundamental change in criminal procedure in Scotland following a recent decision of the Supreme Court and the consequences will reverberate for many more months. Despite politicians complaining that it was unfair for the Supreme Court in London to overrule the Appeal Court in Scotland, the Supreme Court, as successor to the Privy Council, has had jurisdiction in Human Rights matters from the moment the Scottish Parliament came into existence under the Scotland Act 1998.

The Supreme Court has ruled that, following a line of cases before the European Court of Human Rights, someone who has been detained by the police must have an opportunity to consult with a solicitor before he is asked questions or interviewed. If that doesn't happen, and unless there are exceptional reasons for it not happening, then what he says in answer to police questioning, and any evidence the police later gather which arose because of information obtained in those answers, cannot be used in evidence against him.

First of all, the decision deals with the position where someone has been detained although it is likely, and will certainly be argued, that it also applies where someone is voluntarily "helping the police with their enquiries" and that person is suspected at the time of having committed an offence. It does not apply to answers made to questions asked of anyone whom at the time the police do not suspect to have committed an offence. Though the case involved police questioning, the same argument applies to questioning by other State bodies such as Customs & Excise and the Benefits Agency.

Secondly anything said or done by the suspect which is not in answer to a question, is not affected and continues to be admissible.

Thirdly it does not affect those few instances where one is obliged by law to provide information such as to the identity of a driver.

The newly declared right is limited to being able to have a private consultation with a solicitor before being asked any question. It is not a right to have the solicitor present during the questioning. Indeed, unless the law is further changed after the consultation to be carried out by a High Court Judge over the next few months, it is highly unlikely that any interview will be in the presence of a solicitor except in allegations of murder or rape. The permitted consultation may be, and is likely to be at least for the present, by phone. Given that the right extends to being asked any question, presumably there may be more than one phone call.

To enable time for such contact with lawyers, the present 6 hour maximum detention time has been extended to 12 hours and, with the consent of a senior police officer, to 24 hours.

The result of this ruling is that it will now be very difficult for the Crown to prosecute those cases which heretofore relied on admissions by the accused to provide the necessary corroboration. Rape and domestic abuse are obvious examples of such cases.

Not surprisingly the Crown immediately announced a review of the whole matter to include whether to abandon the corroboration requirement, making a failure to immediately give details of a possible defence a matter to be held against you [i.e. seriously diluting the right to silence] or to require there to be a solicitor present at, and actively involved in, police interviews as they do in England. Watch this space.

It is unclear what would happen if someone refuses to consult a solicitor before answering questions. Apart from being an incredibly stupid thing to do, the Supreme Court decision was in a case where the accused had said that he did not want a solicitor contacted but the Court still decided that his answers were inadmissible. On the other hand, police procedures have been modified since the case was argued in London and we don't know whether the new procedures would affect that. There is an argument that Human Rights are not yours to do with as you choose [for example torture is prohibited and it would not be an answer to say that you liked to be tortured and the State should be permitted to torture you] but instead are the rights of the citizens as a whole against the State. However one of the Supreme Court Judges opined that someone might waive the right to consult a lawyer. As often is the case, the decision raises more questions than it answered and we will have to await further developments.

What however is clear is that the decision does not mean that anyone can now appeal against conviction and sentence in any case since 1998 in which evidence of admissions made to the police were used against him. The '98 start point is because the Supreme Court does not make law, that is for parliament, but clarifies and declares what the law is. Hence, as Human Rights became part of our law in '98, this decision tells us what the law on this point has been since '98.

There are several reasons for not being able to appeal old cases now. The first is that it is not permissible at law. There is a one year time limit for lodging an appeal on Human Rights matters imposed by the Convention Rights Proceedings (Amendment) Act 2009. Hence if your case was concluded over one year ago, there is no legal right to appeal now and no procedure to do so except to persuade the Scottish Criminal Cases Review Commission to take up your case.

Secondly, even if yours is less than one year ago, you are likely to be barred from appealing as appeals have to be made within a very short time of the case being completed, although the High Court can allow the time to be extended on cause shown. However, given the legal principle of finality, it is highly unlikely the High Court would allow late lodging of any such appeal.