Notable UK Judgment on Waiver of Counsel in Scotland

Quickly passing along this new judgment from the United Kingdom Supreme Court. In the latest of a series of devolution cases (e.g. Cadder, Fraser, and Ambrose), comes now McGowan (Procurator Fiscal, Edinburgh) v B (Scotland).  Four of the Lord Justices determined that it would not violate Article 6(1), (3)(c) of the European Convention on Human Rights (ECHR) for the prosecution to use evidence obtained during a police interrogation after the defendant had stated that he did not want an attorney.

The ruling itself is unsurprising and uncontroversial. Nor is it especially novel.  I believe most jurisdictions take the same approach. Certainly, the U.S. does (although it gets more complicated by Miranda than I want to get into here).

The case will likely garner more attention for the devolution aspect than the underlying ability to waive counsel. Though I doubt this will be inflammatory to those in Scotland who have criticized the UK Supreme Court. Call me cynical, but it generally only works one way: when courts step in to help protect criminal defendants, people get angry. However, when courts limit or narrow the rights of criminal suspects, people generally don’t get upset about it. At least not the people who have a voice. But like I said, I am a cynic.

At any rate, I’ll be reading through the judgment more carefully either today and tomorrow and may report back if I find interesting portions worth further discussion.

-Zachary Cloud

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