In effect, on appeal from: HM Advocate v McLean [2009] HCJAC 97

The Court considered whether the use of material obtained in a police interview without legal representation rendered the applicant’s trial unfair contrary to ECHR, art 6. The issue was whether the decision of the Grand Chamber in Salduz v Turkey (2008) 49 EHRR 421 required that Scots law should give suspects the right to legal representation in the police station.  The Supreme Court unanimously allowed the appeal: domestic authority could not survive in light of the decision in Salduz and in subsequent cases. Properly interpreted, Salduz required a detainee to have had access to a lawyer from the time of the first interview unless there were compelling reasons, in light of the particular circumstances of the case, to restrict that right. The exception did not allow a systematic departure from the rule such as that set up by the Criminal Procedure (Scotland) Act 1995, ss 14, 15. The rule in Salduz is based on the right not to incriminate oneself.

For judgment, please download: [2010] UKSC 43
For the Court’s press summary, please download: Press Summary
For a non-PDF version of the judgment, please visit: BAILII