Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
Current law5.2.3 In terms of section 17 of the Police (Scotland) Act 1967, it is the duty ofpolice officers not only to take all lawful measures to bring offenders “with alldue speed to justice” but also to ensure that:“without prejudice to the operation of section 135(3) and (4) of theCriminal Procedure (Scotland) Act 1995 (bringing of apprehendedperson before court on first lawful day after arrest) …any personcharged with an offence is not unreasonably and unnecessarilydetained in custody”.Although this section does not appear to be quoted often in the courts, it is,and must remain, central to police thinking. It was not the Review’simpression that those in charge of the police cells were keen to keep suspectsin custody. Quite the contrary, the police were anxious that they should beprocessed as efficiently as possible and either liberated or reported promptly tothe procurator fiscal in custody for court appearance.5.2.4 In terms of section 135(3) of the 1995 Act:“A person apprehended under a warrant or by virtue of power underany enactment or rule of law shall wherever practicable (if notliberated under section 22(1B)(a) of this Act) be brought before a courtcompetent to deal with the case not later than in the course of the firstday on which the court is sitting after he is taken into custody”.98
This provision is directory rather than mandatory and there may be situationswhere it is impractical to comply with it 1 . Failure to comply will not normallybar prosecution of the suspect. Nevertheless, this section was for many years,and to a degree still is, a cornerstone of Scots criminal procedure. Especiallyprior to the introduction of detention, it was regarded as a jewel in the system.It does not override, but it does derive from, the common law rule whereby aperson, who has been arrested, has a right to be brought before a court“without delay” 2 or “at the earliest practicable opportunity” 3 for examination.This rule originates from a time when the police had little investigativefunction and their duty, on arresting a suspect, was simply to bring him/herbefore the sheriff for examination. In 1948 the editors of Macdonald 4commented that “detention for a single night is permissible, if distance orlateness of the hour render this necessary” 5 . Mill 6 , in similar terms, states that“overnight detention should be resorted to only where there is no reasonablealternative”. If the person arrested had been processed by the police prior tothe conclusion of the court day, then the thinking was very firmly that he/sheought to be taken to court on that day. As will be seen, there has been amarked change in this practice in the modern era despite all the advances intransportation and communication.1 Robertson v MacDonald 1992 SCCR 916 where a person arrested on a Thursday in Glasgow on apetition warrant from Wick did not appear there until the following Monday2 Macdonald: Criminal Law (5th ed) (1948) p 200; Campbell: The Law and Practice of Diligence andCitation (1862) pp 335-63 McDonald v Lyon and Main (1851) Shaw 516, LJ-C ( Hope) at 517-518 referring to keeping aprisoner in jail from a Monday morning to a Wednesday afternoon as “preposterous”4 Criminal Law (5 th ed) (1948) at p 2005 at p 200, following Hume ii 806 The Scottish Police: Powers and Duties (1944) 9799
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Current law5.2.3 In terms of section 17 of the Police (Scotl<strong>and</strong>) Act 1967, it is the duty ofpolice officers not only to take all lawful measures to bring offenders “with alldue speed to justice” but also to ensure that:“without prejudice to the operation of section 135(3) <strong>and</strong> (4) of theCriminal Procedure (Scotl<strong>and</strong>) Act 1995 (bringing of apprehendedperson before court on first lawful day after arrest) …any personcharged with an offence is not unreasonably <strong>and</strong> unnecessarilydetained in custody”.Although this section does not appear to be quoted often in the courts, it is,<strong>and</strong> must remain, central to police thinking. It was not the Review’simpression that those in charge of the police cells were keen to keep suspectsin custody. Quite the contrary, the police were anxious that they should beprocessed as efficiently as possible <strong>and</strong> either liberated or reported promptly tothe procurator fiscal in custody for court appearance.5.2.4 In terms of section 135(3) of the 1995 Act:“A person apprehended under a warrant or by virtue of power underany enactment or rule of law shall wherever practicable (if notliberated under section 22(1B)(a) of this Act) be brought before a courtcompetent to deal with the case not later than in the course of the firstday on which the court is sitting after he is taken into custody”.98
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