Report and Recommendations - Scottish Government

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SLTSSIThomson CommitteeWLRScots Law TimesScottish Statutory InstrumentsThe Thomson Committee on Criminal Procedure in Scotland, relativeto its second report (Cmnd 6218/1975)Weekly Law Reports9
Page 1: TheCarloway ReviewReport andRecomme
Page 4 and 5: highly disruptive to the system gen
Page 9: LIST OF ABBREVIATIONS1995 Act The C
Page 14 and 15: in police custody, before that susp
Page 16 and 17: (b) To consider the implications of
Page 18 and 19: 1.0.12 The formal consultation peri
Page 20 and 21: was able to interview experts in ot
Page 22 and 23: necessary or desirable. It did not
Page 25 and 26: 2.0 HISTORICAL BACKGROUNDIntroducti
Page 27 and 28: under the care of a “disintereste
Page 29 and 30: Lord Justice General referred to th
Page 31 and 32: 2.0.9 The retreat from Chalmers was
Page 33 and 34: “…Society must make up its mind
Page 35 and 36: 2.0.18 The recommendations of the T
Page 37 and 38: would often have to take place outw
Page 39 and 40: 2.0.25 The common law concept of fa
Page 41 and 42: McLean2.0.30 The applicability of S
Page 43 and 44: “Accordingly, provided that we ar
Page 45 and 46: Cadder had never been the subject o
Page 47 and 48: “to provide principled solutions
Page 49 and 50: for example, referred to there not
Page 51 and 52: 3.0 CONVENTION CONSIDERATIONSIntrod
Page 53 and 54: privilege against self-incriminatio
Page 55 and 56: suspect’s right to liberty. Howev
Page 57 and 58: 3.0.13 The protections afforded by
Page 59 and 60: offended the basic principles of a
Page 61 and 62:
Rights of the Victim3.0.20 There is
Page 63 and 64:
4.0 THE PROPOSED CHANGES - AN OVERV
Page 65 and 66:
of all affected by the system to ac
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ebuttable, in favour of a person’
Page 69 and 70:
4.0.12 The Review has been particul
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police, but the Review has stepped
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5.0.3 The Review is not tasked to e
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unnecessarily in police custody; th
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has looked at the present utility o
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suspect. But once the sheriff’s i
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contingent on the existence of evid
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maximum by prompting the extension
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In practice there are few challenge
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commented 30 the Review considers t
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of bringing a suspect before the co
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questioning a suspect prior to his/
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5.1.33 The police require to consid
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the police officer is of the view t
Page 99 and 100:
5.2 PERIOD OF CUSTODYIntroduction5.
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This provision is directory rather
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Thus, prior to the 2010 Act, if a s
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for another thirty-six hours 13 , b
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delay; (b) the period is reasonably
Page 109 and 110:
the detention period, whether that
Page 111 and 112:
even witness statements require gre
Page 113 and 114:
that the need to extend detention f
Page 115 and 116:
through the business and this is a
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work. The Review does not pretend t
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ut relative to suspects who have be
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a review should not be carried out
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RecommendationsI therefore recommen
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5.3 LIBERATION FROM POLICE CUSTODYI
Page 127 and 128:
Current lawSuspect at Liberty5.3.4
Page 129 and 130:
may be possible to challenge these
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procurator fiscal. If released with
Page 133 and 134:
liberation conditions. The sheriff
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elease the suspect on the type of c
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6.0 INVESTIGATION CHAPTERS OVERVIEW
Page 139 and 140:
continue to be no statutory provisi
Page 141 and 142:
the trial process. Indeed, question
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6.1 LEGAL ADVICEIntroduction6.1.1 A
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appearance, can only be delayed in
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conversation with a solicitor, by t
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when questioned. The official text
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difficulty in grasping when such si
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6.1.19 Stipulating that the right t
Page 155 and 156:
6.1.24 Notwithstanding that EU legi
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and text contact or other forms of
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majority of suspects seeking advice
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6.1.34 There may be exceptional cir
Page 163 and 164:
experience in England and Wales 35
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Types of advice6.1.40 Subject to wh
Page 167 and 168:
Convention jurisprudence requires b
Page 169 and 170:
statements made during questioning
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6.2 QUESTIONINGIntroduction6.2.1 Th
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explain to the witness that he/she
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will provide a sufficient basis on
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least to see if he/she was involved
Page 179 and 180:
of unnecessary repetition of quotat
Page 181 and 182:
eason of repetition, accusation and
Page 183 and 184:
he/she might have to speak to in co
Page 185 and 186:
view to assessing the veracity of t
Page 187 and 188:
the right to a fair trial per se. I
Page 189 and 190:
voluntarily made 44 but this is ove
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ConsiderationThe witness6.2.41 Ther
Page 193 and 194:
6.2.45 The proposed regime for cust
Page 195 and 196:
6.2.48 The fact that new evidence c
Page 197 and 198:
6.2.53 The decision to make such an
Page 199 and 200:
the interests of legal clarity, it
Page 201 and 202:
Pre-interview briefing6.2.62 Prior
Page 203 and 204:
Page 205 and 206:
6.3 CHILD SUSPECTSIntroduction6.3.1
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committed by an adult, would normal
Page 209 and 210:
either a nominated or duty solicito
Page 211 and 212:
child on an undertaking of a simila
Page 213 and 214:
6.3.14 Paragraph 16 of the ACPOS Ma
Page 215 and 216:
proffered 30 . If arrested, the chi
Page 217 and 218:
PACE does not provide a different r
Page 219 and 220:
6.3.23 As has been described earlie
Page 221 and 222:
the child’s day to day care. It a
Page 223 and 224:
persons of 16 years of age and over
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⎯ where the child is 16 or 17 yea
Page 227 and 228:
6.4 VULNERABLE ADULT SUSPECTSIntrod
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simply testifying with a screen in
Page 231 and 232:
The use of an appropriate adult is
Page 233 and 234:
the suspect and identify any proble
Page 235 and 236:
problems exist in current practice
Page 237 and 238:
7.0 EVIDENCE CHAPTERS OVERVIEW7.0.1
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particular comment and, no doubt, c
Page 241 and 242:
7.0.10 The Review has been concerne
Page 243 and 244:
7.1 CORROBORATION - ORIGINS AND DEV
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and“At the mouth of two witnesses
Page 247 and 248:
canonical rule on the need for proo
Page 249 and 250:
legitimated fact-finding and adjudi
Page 251 and 252:
7.1.15 In England and Wales, juries
Page 253 and 254:
cases. The Lord Justice General (Cl
Page 255 and 256:
7.1.21 The chain analogy 52 is not
Page 257 and 258:
7.2 CORROBORATIONIntroduction7.2.1
Page 259 and 260:
are likely to be so serious, that i
Page 261 and 262:
7.2.9 Where then has the law reache
Page 263 and 264:
these facts do make the first witne
Page 265 and 266:
proved by corroborated testimony, m
Page 267 and 268:
single act of indecency was corrobo
Page 269 and 270:
(of which it is a variant) needs to
Page 271 and 272:
Other Jurisdictions7.2.24 Common la
Page 273 and 274:
7.2.26 Some other common law jurisd
Page 275 and 276:
Empirical Research7.2.29 In Februar
Page 277 and 278:
judged that 268 of the 458 cases co
Page 279 and 280:
wrong. A witness can be unreliable,
Page 281 and 282:
in cases of the type currently pros
Page 283 and 284:
years apart 72 . Furthermore, espec
Page 285 and 286:
Corroboration and the civil law7.2.
Page 287 and 288:
consider all relevant evidence and
Page 289 and 290:
7.3 SUFFICIENCY OF EVIDENCEIntroduc
Page 291 and 292:
agreed, he/she would accede to the
Page 293 and 294:
perpetrator was the accused, the de
Page 295 and 296:
to determining whether the jury cou
Page 297 and 298:
“unsafe” to convict is not a te
Page 299 and 300:
7.3.16 The “lurking doubt” test
Page 301 and 302:
some testimony that (i) the crime c
Page 303 and 304:
7.4 EXCULPATORY AND MIXED STATEMENT
Page 305 and 306:
7.4.4 The concerns about using excu
Page 307 and 308:
7.4.6 A decade later yet further re
Page 309 and 310:
exclude a prepared exculpatory writ
Page 311 and 312:
considered that his statements were
Page 313 and 314:
investigation, a suspect appeared a
Page 315 and 316:
analyse evidence properly, they oug
Page 317 and 318:
7.5 ADVERSE INFERENCE FROM SILENCEI
Page 319 and 320:
states something positive in respon
Page 321 and 322:
“There is nothing more obvious to
Page 323 and 324:
questions. However, it is obvious t
Page 325 and 326:
time when he/she failed to disclose
Page 327 and 328:
7.5.19 It has already been noted th
Page 329 and 330:
speak. His/her right to be silent i
Page 331 and 332:
8.0 APPEALS OVERVIEW8.0.1 The 2010
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8.1 APPEAL PROCEDURES“Justice del
Page 335 and 336:
common for solicitors, who may or m
Page 337 and 338:
called for, four weeks after the ju
Page 339 and 340:
to lodge his/her written case and a
Page 341 and 342:
of Intention to Appeal, the applica
Page 343 and 344:
8.1.18 In relation to preliminary r
Page 345 and 346:
fundamental nullity, after the refu
Page 347 and 348:
Late Appeals (solemn cases)8.1.24 W
Page 349 and 350:
8.1.29 If the application for leave
Page 351 and 352:
place for Bills of Suspension and A
Page 353 and 354:
egard to the need for certainty and
Page 355 and 356:
(iii)discussions on whether to gran
Page 357 and 358:
8.2 FINALITY AND CERTAINTYIntroduct
Page 359 and 360:
amendment to his/her Note of Appeal
Page 361 and 362:
used by the High Court in determini
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extends to whether the Court consid
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application such as whether, despit
Page 367 and 368:
eferred, but the figures do provide
Page 369 and 370:
Review is content to note that ther
Page 371 and 372:
Page 373 and 374:
Annex AResearch Report:The Impact o
Page 375 and 376:
Annex AAim of the researchThe Revie
Page 377 and 378:
Annex ATable 1TotalSufficient witho
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Annex A⎯ The numbers of cases whi
Page 381 and 382:
Annex BCarloway Review Process Maps
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Annex BRight of access to a lawyer
Page 385 and 386:
Annex BLiberty / custody procedureY
Page 387 and 388:
Annex CPre Trial Detention in the E
Page 389 and 390:
Annex DCARLOWAY REVIEW REFERENCE GR
Page 391 and 392:
Annex EVISITS AND MEETINGSVisitsThe
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Annex EObservingThe Review observed
Page 395 and 396:
Annex EConsultative Meetings - cont
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Annex ESubgroup & individual meetin
Page 399 and 400:
Annex ERoadshowsThe Review held fiv
Page 401 and 402:
Annex FCONSULTEESIn order to ensure
Page 403 and 404:
Annex GMATERIALS REFERRED TO IN THE
Page 405 and 406:
Annex GDirectives, Reports and Guid
Page 407 and 408:
Annex GScottishAdamson v HM Advocat
Page 409 and 410:
Annex GPeggie v Clark (1868) 7 M 89
Page 411 and 412:
Annex GR(on the application of the
Page 413 and 414:
Annex GArticlesTitle Author Publish
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