Report and Recommendations - Scottish Government

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⎯ the exercise of the powers to liberate at any stage prior to appearancein court should be subject to a summary process, whereby the suspectmay make an application to the sheriff for a review of any liberationconditions. The sheriff should be able to vary a condition or toterminate the liberation on conditions altogether; and⎯ breach of conditions of liberation should be a criminal offence andbreach of any condition of an undertaking should remain a criminaloffence.134
6.0 INVESTIGATION CHAPTERS OVERVIEW6.0.1 The principal concern for the Review in addressing police investigations hasbeen to ensure that the procedures comply with the right to a fair trial underArticle 6 of the Convention. Although Article 6 sets out a number of“minimum rights”, it is the implied rights, such as that of access to a lawyeronce a suspect is detained, that have precipitated this Review. It should berecognised immediately that, in part because of the knock-on effects ofCadder, the jurisprudence on the right of access to a lawyer is still developing.The United Kingdom Supreme Court has recently issued further judgments inthis area, which the Review has taken into account. There may well beconsequences of these that will need further exploration and, quite possibly,the consideration of yet more cases in this field, ultimately by that Court.6.0.2 In the light of, or even in spite of, the degree of activity affecting the law inthis area, the Review has sought to recommend how best to provide clarity: ona suspect’s right of access to a lawyer; the point at which those rights arise;and the measures required to make the provision of those rights practical andeffective. The Review repeats that it is conscious that it is the obligation ofthe state to protect the rights of its citizens in general, and the actual andpotential victims of crime in particular, by means of an efficient and effectivesystem for the proper investigation and prosecution of crime. The police,other investigating authorities and COPFS must be permitted to carry out theirresponsibilities within a sensible and workable legal framework. This sectioncontains four chapters that specifically look at the right of access to a lawyer,135
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TheCarloway ReviewReport andRecomme
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highly disruptive to the system gen
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LIST OF ABBREVIATIONS1995 Act The C
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1.0 INTRODUCTIONBackground1.0.1 In
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a solicitor” prior to, and at any
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ole of the Group was to provide the
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of the points made at each of these
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Topics outwith the scope of the Rev
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Convention, describes the overall v
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Justice-Clerk (Inglis) stated to a
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arrest and liberty. There was nothi
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he/she does not do so, he/she risks
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e a matter of fact to be determined
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question the suspect until he/she b
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Committee’s report when read as a
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ultimate arbiter of constitutionali
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was cautioned, but not told that he
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at the whole circumstances of the c
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Cadder2.0.35 Mr Cadder was aged 16
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2.0.39 Compelling reasons would hav
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2.0.44 These guidelines were supers
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first required to have been “subs
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The long term implication of this,
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and of society as a whole. The purp
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giving rise to the reasonable suspi
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3.0.15 The right of silence and the
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complacency must be avoided and the
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unlawful for a public authority to
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4.0.3 In short, the Review has gras
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The System4.0.7 The recommendations
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window during which these investiga
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operates in a context where the hum
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5.0 CUSTODY CHAPTERS OVERVIEW5.0.1
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next step, as quickly as possible.
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5.1 ARREST AND DETENTIONIntroductio
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5.1.6 The Review has considered whe
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Arrest without warrant5.1.9 A polic
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5.1.12 It was because of this lack
Page 85 and 86: 5.1.15 Reasonable suspicion permits
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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
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Page 108 and 109: ConsiderationThe period before char
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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
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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 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
Page 170 and 171: ⎯ the right of access to a lawyer
Page 172 and 173: and whether there is sufficient evi
Page 174 and 175: the degree of suspicion, and to adv
Page 176 and 177: is detained 7 . Regardless of wheth
Page 178 and 179: at the diet of trial to exclude his
Page 180 and 181: police elect, for whatever reason,
Page 182 and 183: sense, are inadmissible if objected
Page 184 and 185: the suspect’s right to silence an
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and reliable, e.g. to clear up ambi
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“would have such an adverse effec
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6.2.38 As noted above, section 78 o
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ensure that reasonable lines of enq
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determining fairness in certain cas
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permission to do so. The applicatio
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hour maximum detention period, in a
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incrimination. It should be specifi
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accused’s first appearance on pet
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202
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Current law6.3.4 For the purposes o
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to a Hearing or prosecuted in court
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ight of access to the child, subjec
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Constabulary on the conditions in w
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he/she has a specific right to “p
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general thrust of what is said by t
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6.3.21 In many jurisdictions 43 a c
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6.3.25 This means that any child su
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police interviewing a child at his
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to listen to any advice given. If h
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224
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Current LawDefinition6.4.3 There is
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legislation 6 , both of which stres
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he/she 9 : “may not understand th
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specific statutory rules which make
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of his/her replies because of an ap
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7.0.3 Throughout the course of the
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7.0.8 The Review looked at the admi
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240
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which does not hold when there is a
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We have already directed that witne
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persuade the populace of the validi
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punishments than those exigible on
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tenets. Indeed, even the judiciary
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He concluded 50 :“Although two wi
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does then, in each individual case,
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will look at the evidence at trial
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accused as the perpetrator of the c
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7.2.11 After what might be describe
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Practical Considerations7.2.15 How
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7.2.18 It may seem immediately appa
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Distress7.2.21 Similar consideratio
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The Convention7.2.23 Article 6 of t
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7.2.25 The rules concerning the nee
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finding tribunals are, with rare ex
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cases which had been instructed for
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the criminal justice system. Removi
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The more difficult issue, however,
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more persuasive than a multiplicity
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7.2.49 Corroboration is more likely
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two “guiding principles” which
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y many outside the world of crimina
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different. They may tend to focus m
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neither a statutory nor a common la
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trial judge, in determining whether
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Other JurisdictionsSubmissions at T
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7.3.13 In Australia 29 :“…if th
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Consideration7.3.18 There is a view
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300
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at least in connection with witness
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with the complainer’s consent. By
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Other jurisdictions7.4.7 The positi
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evidence against him (i.e. presumab
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fact on the other. This is especial
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7.4.17 The common law can certainly
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314
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diet. Alternatively, a court may re
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7.5.8 If an accused does not give e
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If the accused does not give eviden
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England and Wales, Ireland, South A
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Wales, be regarded at least as an a
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is so even if seasoned offenders ma
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inquisitorial systems, what occurs
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SCCRC. The Review believes that, in
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jurisprudence, it must be recognise
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Current Law8.1.5 A person convicted
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introduced. Thus, as had been indic
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Late Appeals (solemn cases)8.1.12 A
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Summary cases8.1.16 In summary proc
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emedy is provided for by law” 49
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ConsiderationSolemn Appeals8.1.23 T
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why the application is late 66 . Fu
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case may be, by advocation against
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e achieved by amendment of section
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power ought to be retained on the b
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354
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Thus, where there is a change of la
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have his/her case referred back to
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8.2.9 It was perceived that there w
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interests of justice, should be con
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conviction be quashed. This applies
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for undermining the important role
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References to the High Court8.2.25
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370
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372Annex A
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Annex AFiscal) to assess these case
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Annex Aconviction, were the rule of
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378Annex A
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Annex BRight of access to a lawyer
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Annex BRight of access to a lawyer
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Annex BPolice questioning after cha
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386Annex C
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388Annex D
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Annex ELondon - 18 th -19 th May 20
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Annex EConsultative Meetings - cont
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Annex ESubgroup & individual meetin
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Annex ESubgroup & individual meetin
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Annex EConferences/SeminarsLord Car
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Annex FTable 2 - Organisations that
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Annex GUnited Kingdom Parliament -
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Annex GCases referred to in this Re
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Annex GGordon v HM Advocate 2010 SC
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Annex GParker v The Queen [2007] NT
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Annex GBooks (continued)Title Autho
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Annex GArticles (continued)Title Au
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Report and Recommendations - Scottish Government

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