Judgments - Cullen (Appellant) v. Chief Constable of the Royal Ulster Constabulary (Respondent) (Northern Ireland)

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88. Since detainees have no right to consult a solicitor in Scotland, it follows, of course, that at trial the Crown regularly leads evidence of incriminating statements made by the accused while he was detained and before he had consulted a solicitor. Inevitably, when the Scotland Act 1998 made it possible for accused persons to invoke their rights under the European Convention on Human Rights and Fundamental Freedoms in the Scottish courts, they mounted challenges on the basis that, in itself, the leading of such evidence constituted a breach of their rights under article 6. In rejecting these challenges, the High Court of Justiciary has adopted the approach envisaged by Lord Millett and has held that the failure to grant an accused person access to a solicitor before or during questioning by the police does not, in itself, involve a breach of article 6 unless it can be said that, as a result of the failure, he did not have a fair trial. See Paton v Ritchie 2000 JC 271 and Dickson v HM Advocate 2001 JC 203, 224 - 225 per Lord Macfadyen. Here, as Lord Millett points out, even if the Human Rights Act 1998 had applied, the appellant would have been unable to show that his article 6 right to a fair hearing had been impaired by the refusal of the police to allow him immediate access to a solicitor - far less by their failure to tell him their reasons for doing so.

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