Are detainees in Scotland getting a fair trial? An interdisciplinary and empirical evaluation of the treatment of suspects in police custody in Scotla
Lead Research Organisation:
University of Warwick
Department Name: School of Law
Abstract
Owing to the impact of the European Convention of Human Rights on the criminal justice system in the UK, Scotland has undergone quite recent and radical change, most notably in the treatment of suspects in custody. This change, in line with Article 6 and the decision of the Grand Chamber of the European Court of Human Rights in Saladuz v Turkey, has enshrined suspects' access to free legal advice as an essential tenet of fair trial.
This was implemented in Scotland as recently as 2010 through the Supreme Court decision of Cadder v HM Advocate. The ruling prompted the enactment of emergency legislation to right the apparent wrongs in the existing legislative framework. However, the hasty passing of these significant changes tended away from positive reform and instead served to disrupt the proper administration of justice. It is in this context that a number of reports were commissioned, including the Carloway Review. The focus of the review was to examine the practical impact of this radical alteration of the legislative position in Scotland. Ultimately it was observed that the implementation of these new measures had interfered with the administration of justice, leaving room for uncertainty and therefore inconsistency in the application of the Article 6 safeguards. Despite many of Lord Carloway's resulting recommendations being realised in the Criminal Justice (Scotland) Act 2016, it has nonetheless remained the case that these legislative protections have not comprehensively supported access to fair trial, with an alarmingly high percentage of suspects continuing not to receive legal advice or representation whilst in custody.
A further report was carried out by JUSTICE Scotland in 2018, with whom this study is in collaboration, which concluded that inadequate measures were being taken to ensure that individuals were properly having legal advice offered to them. This conclusion was reached by an examination of the quality of legal advice on offer, how the option was communicated to suspects and the reasons influencing the decision to waive the right amongst other variables. Whilst a further list of recommendations was made and many of them acted upon, the issue still remains of a low uptake of legal advice by individuals in custody.
This study aims to remedy this and build on previous research by making a comprehensive and interdisciplinary analysis of what additional factors continue to influence the trend in low uptake of legal advice in custody. First of all, through a psychological analysis of the interrogation process. The intention in doing so is to allow a greater focus on provision for vulnerable witnesses and those with special needs in accessing legal representation; something that the research aforementioned has only briefly touched upon. In addition to this, to consider in greater detail the psychological impact of the custody environment upon suspects' decision-making process and the exercise of the right to effective participation.
The final element of this interdisciplinary study is to be achieved through fieldwork. This will be carried out in custody environments, directly observing the nature of the interrogation process, its duration, the impact of a lawyer or appropriate adult's presence, the circumstances of evoking the exceptional right to interview without the presence of a legal advisor amongst other issues. The intended outcome is to generate the understanding necessary to formulate procedural measures that directly respond to the suspects' experience in custody and therefore offer them tangible access to fair trial and for the dictum in Cadder to be fully implemented. Owing to the already significant impact of the work of JUSTICE in influencing policy in this area, this research may be focused on directly impacting the experience of suspects who, whilst deprived of their liberty, may have not otherwise been able to properly exercise their rights.
This was implemented in Scotland as recently as 2010 through the Supreme Court decision of Cadder v HM Advocate. The ruling prompted the enactment of emergency legislation to right the apparent wrongs in the existing legislative framework. However, the hasty passing of these significant changes tended away from positive reform and instead served to disrupt the proper administration of justice. It is in this context that a number of reports were commissioned, including the Carloway Review. The focus of the review was to examine the practical impact of this radical alteration of the legislative position in Scotland. Ultimately it was observed that the implementation of these new measures had interfered with the administration of justice, leaving room for uncertainty and therefore inconsistency in the application of the Article 6 safeguards. Despite many of Lord Carloway's resulting recommendations being realised in the Criminal Justice (Scotland) Act 2016, it has nonetheless remained the case that these legislative protections have not comprehensively supported access to fair trial, with an alarmingly high percentage of suspects continuing not to receive legal advice or representation whilst in custody.
A further report was carried out by JUSTICE Scotland in 2018, with whom this study is in collaboration, which concluded that inadequate measures were being taken to ensure that individuals were properly having legal advice offered to them. This conclusion was reached by an examination of the quality of legal advice on offer, how the option was communicated to suspects and the reasons influencing the decision to waive the right amongst other variables. Whilst a further list of recommendations was made and many of them acted upon, the issue still remains of a low uptake of legal advice by individuals in custody.
This study aims to remedy this and build on previous research by making a comprehensive and interdisciplinary analysis of what additional factors continue to influence the trend in low uptake of legal advice in custody. First of all, through a psychological analysis of the interrogation process. The intention in doing so is to allow a greater focus on provision for vulnerable witnesses and those with special needs in accessing legal representation; something that the research aforementioned has only briefly touched upon. In addition to this, to consider in greater detail the psychological impact of the custody environment upon suspects' decision-making process and the exercise of the right to effective participation.
The final element of this interdisciplinary study is to be achieved through fieldwork. This will be carried out in custody environments, directly observing the nature of the interrogation process, its duration, the impact of a lawyer or appropriate adult's presence, the circumstances of evoking the exceptional right to interview without the presence of a legal advisor amongst other issues. The intended outcome is to generate the understanding necessary to formulate procedural measures that directly respond to the suspects' experience in custody and therefore offer them tangible access to fair trial and for the dictum in Cadder to be fully implemented. Owing to the already significant impact of the work of JUSTICE in influencing policy in this area, this research may be focused on directly impacting the experience of suspects who, whilst deprived of their liberty, may have not otherwise been able to properly exercise their rights.
Studentship Projects
| Project Reference | Relationship | Related To | Start | End | Student Name |
|---|---|---|---|---|---|
| ES/P000711/1 | 01/10/2017 | 30/09/2027 | |||
| 2714460 | Studentship | ES/P000711/1 | 01/10/2022 | 30/09/2026 | Aura Bamber |