Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
The grounds for arrest and initial detention have already been considered.Where a person has been arrested on reasonable suspicion and is eitherbrought to, or is already in, a police station, it must be that, if the conditionsfor detention are not met (i.e. where detention is not considered necessary andproportionate), that first detention should not be authorised and the suspectmust be liberated. This should also occur at any point during a detention whenthe grounds for reasonable suspicion cease to exist or when it becomes clearthat the conditions justifying continued detention are no longer applicable.5.3.3 If detention is authorised, there is, secondly, the period following upon it,during which a break in the suspect’s detention to allow for furtherinvestigations may be necessary or desirable. Thirdly, there is the point atwhich the police charge the suspect or intimate to him/her that they intend toreport him/her to the procurator fiscal with a view to such a charge (i.e. oncethe initial police investigation is complete). Fourthly, there is the period afterthe suspect has been reported to the procurator fiscal but before the appearancein court. At all of these stages, the significant principle should be that thesuspect should not be deprived of his/her liberty unless that is necessary andproportionate. The approach of the Review has been to propose reformswhich will promote that principle, without prejudicing the effectiveinvestigation and prosecution of crime.124
Current lawSuspect at Liberty5.3.4 There are circumstances in which the police may have reasonable grounds forsuspicion, but it would not be proportionate, in the terms of the Convention, todeprive the suspect of his/her liberty. In such situations, any questioning thatis carried out, either at or outwith a police station, should be on a voluntarybasis only, albeit that the suspect is entitled to similar rights as a person who isformally detained. The only difference in rights between this suspect and onewho is detained is that he/she can terminate any interview at any point by,depending on the circumstances, leaving the police station or asking the policeto leave if the premises are his/her own. Such, at least, is the theory and, insome instances, the practice.Liberation during Detention5.3.5 In the modern era, there are a number of steps in a police investigation whichcan take a considerable time. It may not be practicable for them to becompleted within the proposed twelve hour maximum period. Yet it may beneither necessary nor proportionate for a suspect to be detained whilst thesesteps are being undertaken. For example, it may take some time to investigatemobile telephone records or to carry out DNA comparisons. Alternatively, inhis/her police interview, a suspect may provide an explanation which meritsfurther enquiry. Although it may have been necessary to arrest a suspect for avariety of reasons, including the preservation of evidence, the immediatepurpose may have been spent. In all of these situations, if the police or the125
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The grounds for arrest <strong>and</strong> initial detention have already been considered.Where a person has been arrested on reasonable suspicion <strong>and</strong> is eitherbrought to, or is already in, a police station, it must be that, if the conditionsfor detention are not met (i.e. where detention is not considered necessary <strong>and</strong>proportionate), that first detention should not be authorised <strong>and</strong> the suspectmust be liberated. This should also occur at any point during a detention whenthe grounds for reasonable suspicion cease to exist or when it becomes clearthat the conditions justifying continued detention are no longer applicable.5.3.3 If detention is authorised, there is, secondly, the period following upon it,during which a break in the suspect’s detention to allow for furtherinvestigations may be necessary or desirable. Thirdly, there is the point atwhich the police charge the suspect or intimate to him/her that they intend toreport him/her to the procurator fiscal with a view to such a charge (i.e. oncethe initial police investigation is complete). Fourthly, there is the period afterthe suspect has been reported to the procurator fiscal but before the appearancein court. At all of these stages, the significant principle should be that thesuspect should not be deprived of his/her liberty unless that is necessary <strong>and</strong>proportionate. The approach of the Review has been to propose reformswhich will promote that principle, without prejudicing the effectiveinvestigation <strong>and</strong> prosecution of crime.124
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