A landmark European court ruling could lead to thousands of criminal cases collapsing across Scotland and dramatic changes to the way suspects are interviewed by police.
A landmark European court ruling could lead to thousands of criminal cases collapsing across Scotland and dramatic changes to the way suspects are interviewed by police.
The ruling in the Turkish case means that defence lawyers could challenge evidence obtained by the police from interviews with accused persons where no lawyer was present.
Senior police have already held meetings with the Crown Office to discuss the potential ramifications.
A test case from Forfar has been referred to the Court of Criminal Appeal in Edinburgh. A case in Falkirk has been adjourned. Another in Stornoway and a third in Glasgow have also been affected.
In Scotland, an accused person has no legal right to have a lawyer present to advise them when questioned by the police.
Since 1984, in England and Wales an accused has had a legal right to have a lawyer present.
The Grand Chamber of the European Court of Human Rights has decided that the human rights of Yusuf Salduz, of Turkey, were violated because the he did not have a lawyer present when questioned by the police. The court ordered a re-trial.
Article Six of the European Convention on Human Rights makes explicit reference to the right to representation before and during a trial.
Lawyers estimate that thousands of cases going through the Scottish courts, including those of rape and domestic assault where there are often no other eyewitnesses and there may have been a confession by the accused, will be affected by the ruling.
The case of Duncan McLean, which involves a charge of the theft of a motor vehicle, has now been referred from Forfar sheriff court to the appeal court. A two-day hearing is expected to take place next month.
Lawyers say Scottish legislation would need to be changed if the appeal court agrees with the European ruling.
Neil Hay of MTM Defence Lawyers in Falkirk said: "This ruling is no longer distant thunder: the storm is already here."
