A legal ping on the Scots political radar...

The case of Salduz v. Turkey may not be familiar to most of you. Indeed, the court which made that decision – the European Court of Human Rights – is in general, a rather mysterious prospect to ordinary citizen and lawyer alike. Formed under the auspices of the old Council of Europe – and distinct from the European Union whose court is the European Court of Justice – the ECtHR has cajoled, prodded and smacked participating member states into (broadly) a fairer shape, witnessed injustices inflicted by states and suffered by individuals and meted out some measure of recognition for some those wrongs. Scotland is, as the Herald reported in detail the other day, faced with the consequences of the Salduz decision of the ECtHR Grand Chamber. The central issue? That familiar scene from police drama, when the smooth, smarmy, middle-class accused silkily insists that his lawyer is present during any interrogation. This self-basting character typically imagines he has an absolute right to such representation. Not so under Scots law. Or so we thought...

I don’t propose to go into my own account or prediction of how the case will fare before the arrayed seven-strong troupe of judges. Read the original text of the Strasbourg court’s judgement here and see for yourselves. An advocate, Niall McCluskey, has also written the following mild exegesis over at the Scottish Human Rights Law Group site, putting the Salduz case into a Scottish legal context much more proficiently than I could, and raising some of the issues which will be addressed in the course of the appeal.

Given the potential consequences of a decision adverse to the state – and the sudden, very political interest and consciousness which it would surely provoke in an anteriorly uninterested public (enter Richard Baker, wet and hot and bothered) – I imagine ministers are keeping a weather eye on the outcome of this. Some of you may recall the Starrs v. Ruxton decision, which determined that the judicial operation of temporary sheriffs in Scotland was incompatible with rights to trial by an independent and impartial tribunal under Article 6 of the European Convention. Convictions by those sheriffs fell by consequence. Legislative changes followed. Whatever the final judgement – whether by the present court or under a Devolution Minute provided for by the Scotland Act - I wouldn’t be at all surprised if the Holyrood parliament finds itself revisiting and formalising the rights of an accused or suspected person to legal representation during police investigations in due course.

Perhaps it will come to nothing and be forgotten – but I can already see the low embers of outrage forming like broken blood vessels in the Swine Pursuivant’s eyes ...