Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
where they are uncertain of what the exact charge should be or on whetherthere is sufficient evidence to merit that charge. As discussed earlier, the pointat which the police must charge the suspect, within what should be a twelvehour maximum, should be at their discretion, subject to the general test ofArticle 6 fairness.5.2.38 All of this pre-supposes, of course, that there remains a reasonable suspicionthat the suspect has committed a crime and that he/she has been advised of thegeneral nature of that crime. But from the point at which the suspect ischarged or advised that he/she is to be reported and, in each case, told thathe/she is to remain in custody, a maximum period must be set for his/her firstappearance in court. Standing the traditional “next lawful court day” approach,and subject to the above remarks on improving the processing of custodies, theappearance should take place not later than in the course of the first court dayafter charge or notification of intention to report. This maximum period oughtto secure that, in effect, everyone arrested and detained in custody must appearin court within thirty six hours, and hopefully a lot sooner, subject to a courtoperating on the relevant day. As explored above, if it emerges over time thatit still regularly occurs that even a few suspects are being kept in custody formore than thirty-six hours, then measures must be taken to address this.120
RecommendationsI therefore recommend that:⎯ section 17 of the Police (Scotland) Act 1967 should be amended so thatthe duty of the police is to ensure that persons arrested are notunnecessarily or disproportionately detained in custody;⎯ there should be a requirement that a person cannot be kept in policecustody for more than twelve hours without being:(a) charged; or(b) advised that he/she is to be reported to the procurator fiscal with aview to him/her being charged with a specific offence;⎯ there should further be a requirement on the police to review anyperiod of detention before charge at or about six hours after detention.Such a review should be carried out by an officer of at least the rankof inspector who has not been directly involved in the investigation;⎯ the time for appearance at court should be altered to the first courtday after charge or notification of an intention report to theprocurator fiscal; both the common law and section 135(3) of the 1995Act should be amended accordingly;⎯ it should be made explicit that there is no rule requiring the police tocharge a suspect upon arrest, or once a sufficiency of evidence hasbeen reached, and that, subject to compliance with the proposedregime in relation to arrest, detention and court appearance, the pointat which the police proffer a charge or decide to report the suspect tothe procurator fiscal is a matter for their discretion; and⎯ the period of time during which suspects are kept in custody should bekept under review by the COPFS. If it transpires under the newregime that suspects are being kept in custody without courtappearance for more than thirty-six hours from the time of theirarrest, measures (e.g. Saturday courts) should be introduced toprevent that from occurring. Meantime consideration must be givento the reorganisation of the times of existing workloads in theprocurator fiscal service and the courts.121
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<strong>Recommendations</strong>I therefore recommend that:⎯ section 17 of the Police (Scotl<strong>and</strong>) Act 1967 should be amended so thatthe duty of the police is to ensure that persons arrested are notunnecessarily or disproportionately detained in custody;⎯ there should be a requirement that a person cannot be kept in policecustody for more than twelve hours without being:(a) charged; or(b) advised that he/she is to be reported to the procurator fiscal with aview to him/her being charged with a specific offence;⎯ there should further be a requirement on the police to review anyperiod of detention before charge at or about six hours after detention.Such a review should be carried out by an officer of at least the rankof inspector who has not been directly involved in the investigation;⎯ the time for appearance at court should be altered to the first courtday after charge or notification of an intention report to theprocurator fiscal; both the common law <strong>and</strong> section 135(3) of the 1995Act should be amended accordingly;⎯ it should be made explicit that there is no rule requiring the police tocharge a suspect upon arrest, or once a sufficiency of evidence hasbeen reached, <strong>and</strong> that, subject to compliance with the proposedregime in relation to arrest, detention <strong>and</strong> court appearance, the pointat which the police proffer a charge or decide to report the suspect tothe procurator fiscal is a matter for their discretion; <strong>and</strong>⎯ the period of time during which suspects are kept in custody should bekept under review by the COPFS. If it transpires under the newregime that suspects are being kept in custody without courtappearance for more than thirty-six hours from the time of theirarrest, measures (e.g. Saturday courts) should be introduced toprevent that from occurring. Meantime consideration must be givento the reorganisation of the times of existing workloads in theprocurator fiscal service <strong>and</strong> the courts.121
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