Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
significant crimes, reflected that already selected in Scotland but, in Ireland, asuperintendent could authorise a six hour extension if that were necessary forthe proper investigation of the offence. This period can, with the suspect’sconsent, be suspended for rest purposes from midnight until 8 am. In terms ofsection 9 of the Criminal Justice Act 2006, a chief superintendent can nowauthorise a further twelve hour detention period. Thus, a maximum of twentyfourhours is permissible before the suspect need be charged. In murder cases,there is further statutory innovation 18 to enable an initial six hour period to beextended by the police by eighteen and then twenty-four hours, with furtherextensions of seventy-two and forty-eight hours being authorised by the court.In drug trafficking cases there is a similar regime in place 19 . In both types ofcrime, the maximum period prior to court appearance can thus be as much asseven days. Once charged, the detained suspect must be brought to court assoon as possible. If he/she is charged after 10 pm, this can be up until noon onthe following day. In the case of offences not covered by the statutoryprovisions, the suspect requires simply to be arrested, charged and brought tocourt in the same way.5.2.12 In New South Wales, the comprehensive code 20 on this subject permits only afour hour “investigative” period after arrest 21 unless it is extended by aninvestigation warrant 22 issued by a magistrate or similar judicial office holder.The maximum extension is a further 8 hours and requires the magistrate to besatisfied that: (a) the investigation is being conducted diligently and without18 Criminal Justice Act 200719 Criminal Justice (Drug Trafficking) Act 199620 Law Enforcement (Powers and Responsibilities) Act 200221 s 11422 s 118104
delay; (b) the period is reasonably necessary to complete the investigation; (c)there is no reasonable alternative in that regard; and (d) it is impracticable tocomplete the investigation within the 4 hour period. There are detailedprovisions for determining reasonable time and periods which can bedisregarded in the calculation 23 . In New Zealand, on the other hand, wherearrest and charge tend to be simultaneous, the suspect must appear in court assoon as possible and there is no express provision for a period for questioning,although this does take place and can do so after charge.The Convention5.2.13 Article 5(3) provides that every person arrested in accordance with Article5(1)(c) is to be brought before the court “promptly”. The European Courtseems, for the moment, to consider that a period of up to four days detention isConvention compliant 24 . This is apparent partly from Brogan 25 , in which adetention period of 4 days before an arrested person was brought to the courtwas deemed not to be an infringement of Article 5(1)(c) or (3). Normally, anyperiod beyond that would be regarded as a violation of the right to liberty.The court has put the matter succinctly thus 26 :“Only exceptionally can periods of more than four days before releaseor appearance before a judicial officer be justified under Article 5(3)”23 ss 116-11724 see generally Reed and Murdoch: A Guide to Human Rights in Scotland (2nd ed) para 4.93 underreference to Egue v France (1988) DR 57; Clayton & Tomlinson: Human Rights (2nd ed) para 10.22525 supra26 Tas v Turkey (2001) 33 EHRR 15 at para 86, referring back to Brogan (supra) at para 62105
- Page 56 and 57: giving rise to the reasonable suspi
- Page 58 and 59: 3.0.15 The right of silence and the
- Page 60 and 61: complacency must be avoided and the
- Page 62 and 63: unlawful for a public authority to
- Page 64 and 65: 4.0.3 In short, the Review has gras
- Page 66 and 67: The System4.0.7 The recommendations
- Page 68 and 69: window during which these investiga
- Page 70 and 71: operates in a context where the hum
- Page 73 and 74: 5.0 CUSTODY CHAPTERS OVERVIEW5.0.1
- Page 75 and 76: next step, as quickly as possible.
- Page 77 and 78: 5.1 ARREST AND DETENTIONIntroductio
- Page 79 and 80: 5.1.6 The Review has considered whe
- Page 81 and 82: Arrest without warrant5.1.9 A polic
- Page 83 and 84: 5.1.12 It was because of this lack
- Page 85 and 86: 5.1.15 Reasonable suspicion permits
- Page 87 and 88: arrest, without warrant, any person
- Page 89 and 90: interview. The Court stated that th
- Page 91 and 92: of the suspect and subsequent crimi
- Page 93 and 94: appropriate ground for both arrest
- Page 95 and 96: justified by the evidence gathered
- Page 97: (d) may destroy evidence, interfere
- Page 100 and 101: Current law5.2.3 In terms of sectio
- Page 102 and 103: 5.2.5 Particularly in view of the t
- Page 104 and 105: individuals were being detained wit
- Page 108 and 109: ConsiderationThe period before char
- Page 110 and 111: the investigation and prosecution o
- Page 112 and 113: ignored. There are about 100 detent
- Page 114 and 115: 5.2.26 Scotland is a small jurisdic
- Page 116 and 117: 5.2.29 Continuing with the custody
- Page 118 and 119: 5.2.32 The sheriffs principal and s
- Page 120 and 121: jurisdictions where judicial or oth
- Page 122 and 123: where they are uncertain of what th
- Page 124 and 125: 122
- Page 126 and 127: The grounds for arrest and initial
- Page 128 and 129: procurator fiscal consider that the
- Page 130 and 131: the standard bail conditions and, i
- Page 132 and 133: prudent, therefore, to constrain an
- Page 134 and 135: to challenge any conditions before
- Page 136 and 137: ⎯ the exercise of the powers to l
- Page 138 and 139: the nature and scope of police ques
- Page 140 and 141: suspect the right of access to an a
- Page 142 and 143: involving the suspect having inform
- Page 144 and 145: 6.1.3 It was essential that the Rev
- Page 146 and 147: 6.1.7 In Ireland 7 , a suspect in c
- Page 148 and 149: lawyer at that stage, although the
- Page 150 and 151: detained suspect must have prompt a
- Page 152 and 153: interview. That is the general posi
- Page 154 and 155: doubt remain dependent upon the sta
delay; (b) the period is reasonably necessary to complete the investigation; (c)there is no reasonable alternative in that regard; <strong>and</strong> (d) it is impracticable tocomplete the investigation within the 4 hour period. There are detailedprovisions for determining reasonable time <strong>and</strong> periods which can bedisregarded in the calculation 23 . In New Zeal<strong>and</strong>, on the other h<strong>and</strong>, wherearrest <strong>and</strong> charge tend to be simultaneous, the suspect must appear in court assoon as possible <strong>and</strong> there is no express provision for a period for questioning,although this does take place <strong>and</strong> can do so after charge.The Convention5.2.13 Article 5(3) provides that every person arrested in accordance with Article5(1)(c) is to be brought before the court “promptly”. The European Courtseems, for the moment, to consider that a period of up to four days detention isConvention compliant 24 . This is apparent partly from Brogan 25 , in which adetention period of 4 days before an arrested person was brought to the courtwas deemed not to be an infringement of Article 5(1)(c) or (3). Normally, anyperiod beyond that would be regarded as a violation of the right to liberty.The court has put the matter succinctly thus 26 :“Only exceptionally can periods of more than four days before releaseor appearance before a judicial officer be justified under Article 5(3)”23 ss 116-11724 see generally Reed <strong>and</strong> Murdoch: A Guide to Human Rights in Scotl<strong>and</strong> (2nd ed) para 4.93 underreference to Egue v France (1988) DR 57; Clayton & Tomlinson: Human Rights (2nd ed) para 10.22525 supra26 Tas v Turkey (2001) 33 EHRR 15 at para 86, referring back to Brogan (supra) at para 62105
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