Report and Recommendations - Scottish Government

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