Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
jurisdictions where judicial or other similar authorisation is required for anextension of a period greater than twelve hours for investigative purposes.5.2.35 There was some concern expressed at the time of, and subsequent to, theemergency legislation that the extension of the detention period to twelvehours represented a diminution in the protection of a suspect’s right to a fairtrial (e.g. prolonged and oppressive questioning) and an increase in the likelydiscomforts of unnecessary time spent in custody.Although otherjurisdictions have longer potential periods of pre charge detention, these tendto be tempered by the safeguard of regular review. The most obvious exampleof this is the requirement under section 40 of PACE for reviews of a suspect’sdetention no later than six hours after the initial detention, and then two furtherreviews each within nine hours of the previous review.5.2.36 The Review considers that it would not be an unreasonable burden on thepolice similarly to require that, where a suspect has not been charged/reportedfor charge, they conduct a formal review of a suspect’s detention at or aboutsix hours from the time at which he/she is brought into custody under arrestand detained. The figures released by ACPOS suggest that, on current trends,this is likely to affect less than 20% of cases 36 . The purpose of this six hourreview would be to ensure that the continued detention of the suspect isjustified, that any causes for continued detention, such as the suspect’s fitnessfor interview or delays in contacting a solicitor, were being properly addressedand that his/her welfare is being taken into account. For obvious reasons, such36 ibid118
a review should not be carried out by an officer who is actively engaged in theinvestigation. The Review therefore recommends that statute incorporate aprovision similar to that in PACE which requires that a review should becarried out “by an officer of at least the rank of inspector who has not beendirectly involved in the investigation” 37 . For the avoidance of doubt, this doesnot necessarily imply that, in all circumstances, the inspector would require tobe present in the police station where the suspect was being detained, but thatshould be regarded as the desirable norm at least in urban areas.5.2.37 There needs to be a safeguard requiring the prompt appearance of a suspectbefore the court. Under the proposed system of arrest and detention onreasonable suspicion, it would make sense to set the time for appearance atcourt from the end point of any period of detention which is being used forquestioning or other preliminary investigations prior to charge or report to theprocurator fiscal. This in itself requires there to be a recognised time at whichthat period must come to an end. At present, detention ends with release orarrest. It would seem appropriate, subject to investigative liberation, for theend of the investigation period to occur when either the suspect is: (a) releasedfrom police custody with or without charge; (b) charged by the police andadvised that he/she is to be kept in custody pending a report to the procuratorfiscal and appearance in court; or (c) simply advised that he/she is to be keptin custody pending such a report and appearance. In the case of the latter, theReview considers that the police should have an option to reporting to theprocurator fiscal without themselves proffering an actual charge in cases37 PACE s 40 (1)(b)119
- 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 106 and 107: significant crimes, reflected that
- 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 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
- Page 156 and 157: of non-qualified persons posed a pr
- Page 158 and 159: eing interviewed, or otherwise hind
- Page 160 and 161: proportionate. If a conflict does o
- Page 162 and 163: 6.1.36 In England and Wales, resear
- Page 164 and 165: context and returning to the genera
- Page 166 and 167: Waiver6.1.41 The European Court has
- Page 168 and 169: until shortly before his/her attend
a review should not be carried out by an officer who is actively engaged in theinvestigation. The Review therefore recommends that statute incorporate aprovision similar to that in PACE which requires that a review should becarried out “by an officer of at least the rank of inspector who has not beendirectly involved in the investigation” 37 . For the avoidance of doubt, this doesnot necessarily imply that, in all circumstances, the inspector would require tobe present in the police station where the suspect was being detained, but thatshould be regarded as the desirable norm at least in urban areas.5.2.37 There needs to be a safeguard requiring the prompt appearance of a suspectbefore the court. Under the proposed system of arrest <strong>and</strong> detention onreasonable suspicion, it would make sense to set the time for appearance atcourt from the end point of any period of detention which is being used forquestioning or other preliminary investigations prior to charge or report to theprocurator fiscal. This in itself requires there to be a recognised time at whichthat period must come to an end. At present, detention ends with release orarrest. It would seem appropriate, subject to investigative liberation, for theend of the investigation period to occur when either the suspect is: (a) releasedfrom police custody with or without charge; (b) charged by the police <strong>and</strong>advised that he/she is to be kept in custody pending a report to the procuratorfiscal <strong>and</strong> appearance in court; or (c) simply advised that he/she is to be keptin custody pending such a report <strong>and</strong> appearance. In the case of the latter, theReview considers that the police should have an option to reporting to theprocurator fiscal without themselves proffering an actual charge in cases37 PACE s 40 (1)(b)119
Change language