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On 19 July 1999 the appellant appeared in Alloa Sheriff Court in answer to a summary complaint. He was charged that on 19 June 1999 he had attempted to break into certain premises in Alloa with intent to steal. In the alternative, he was charged with having been found at the premises without lawful authority to be there so that, in all the circumstances, it might reasonably be inferred that he intended to commit theft, in contravention of section 57(1) of the Civil Government (Scotland) Act 1982.
The submission made by Mr. McCluskey on behalf of the appellant was that such an act of the Lord Advocate would be incompatible with his Convention rights, namely his right under Article 6(1) to a "fair and public hearing", and under Article 6(3)(c) "to defend himself in person or through legal assistance of his own choosing...". The Advocate depute did not dispute that the latter provision was apt to cover the stage at which the appellant had been detained by the police.
In these circumstances he maintained that there had been a breach of the requirement of Article 6(3)(c), and that this gave rise to an inference that the appellant could not have a fair trial.
The challenge to the actings of the Lord Advocate in the present case can on one view be regarded as, in effect, a challenge to the admissibility of the evidence of the statement made by the appellant when he was interviewed at 11.50 p.m. on 19 June. Mr. McCluskey accepted that this was implied in his submissions. At the same time he accepted that the admissibility of evidence was primarily a matter for regulation by the national law of the Contracting State and that, as a rule, it was for the national courts to assess the evidence before them ( Asch v. Austria (1991) 15 E.H.R.R. 597).
From the decisions of the European Court of Human Rights and of the European Commission of Human Rights, to which we were referred, we can derive the following propositions:
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