Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
the nature and scope of police questioning and how child or vulnerablesuspects can be protected within the investigation process.6.0.3 First, Chapter 6.1 – Legal Advice, reaffirms and elaborates on the need toprovide suspects with access to a lawyer and the form which that access cantake. The Review recommends that a suspect’s right of access to a lawyershould arise as soon as practicable after the start of detention, regardless ofwhether he/she is to be questioned. The suspect should be able to: access asolicitor of his/her choice, as long as this does not impact unreasonably on theperiod of detention or on the investigation; within reason, choose the form inwhich any consultation with the solicitor takes place; and, within a clearstatutory framework, waive the right to legal advice altogether. The Reviewhighlights the importance of promoting general understanding and consistencyacross the system through the recommendation of training and guidance on theright of access to a lawyer for police, COPFS and solicitors.6.0.4 This chapter refers to the European Union’s draft Directives on the Right ofAccess to a Lawyer in Criminal Proceedings 1 and on Rights to Information inCriminal Proceedings 2 . Any prospective legislation by the EU is likely tocomplement the approach taken by the European Court.6.0.5 Secondly, Chapter 6.2 – Police Questioning, sets out a new approach to policequestioning, granting the police greater powers, while strengthening thesafeguards on the use of those powers. It is recommended that there should1 Com (2011) 326/32 Com (2010) 392/3136
continue to be no statutory provision on pre-interview briefing, allowing thepolice to make informed decisions on a case by case basis. The police shouldbe allowed to interview suspects after charge with the authorisation of a sheriff,either by warrant or at, and after, the suspect’s first appearance in court.6.0.6 Thirdly, in Chapter 6.3 – Child Suspects, the Review makes it clear thatadditional statutory safeguards need to be put in place to protect child suspectsin the criminal justice system. For the purposes of arrest, detention andquestioning, it is the recommendation of the Review that a child be defined asa person under the age of 18 years. Statutory provisions should be introduced:to state that the child’s best interests are a primary consideration when thepolice take decisions on his/her arrest, detention and questioning; to define therole of the parent, carer or responsible person to some degree in the process ofdetention and questioning; and to give the child detainee the right of access toa parent, carer or responsible person. The Review appreciates the addedimportance of access to a lawyer for child suspects. Children under the age of16 ought not to be able to waive that right. In recognition that children’smaturity and understanding varies greatly, children of 16 or 17 should beallowed to waive their right of access to a lawyer, but only if their parent,carer or responsible person agrees to that course of action.6.0.7 Finally, Chapter 6.4 – Vulnerable Suspects, recommends, at the outset, thatthere should be a statutory definition of a ‘vulnerable suspect’. Alongside this,further statutory provision, similar to that for child suspects, should be put inplace: to define the role of the appropriate adult; and to give the vulnerable137
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the nature <strong>and</strong> scope of police questioning <strong>and</strong> how child or vulnerablesuspects can be protected within the investigation process.6.0.3 First, Chapter 6.1 – Legal Advice, reaffirms <strong>and</strong> elaborates on the need toprovide suspects with access to a lawyer <strong>and</strong> the form which that access cantake. The Review recommends that a suspect’s right of access to a lawyershould arise as soon as practicable after the start of detention, regardless ofwhether he/she is to be questioned. The suspect should be able to: access asolicitor of his/her choice, as long as this does not impact unreasonably on theperiod of detention or on the investigation; within reason, choose the form inwhich any consultation with the solicitor takes place; <strong>and</strong>, within a clearstatutory framework, waive the right to legal advice altogether. The Reviewhighlights the importance of promoting general underst<strong>and</strong>ing <strong>and</strong> consistencyacross the system through the recommendation of training <strong>and</strong> guidance on theright of access to a lawyer for police, COPFS <strong>and</strong> solicitors.6.0.4 This chapter refers to the European Union’s draft Directives on the Right ofAccess to a Lawyer in Criminal Proceedings 1 <strong>and</strong> on Rights to Information inCriminal Proceedings 2 . Any prospective legislation by the EU is likely tocomplement the approach taken by the European Court.6.0.5 Secondly, Chapter 6.2 – Police Questioning, sets out a new approach to policequestioning, granting the police greater powers, while strengthening thesafeguards on the use of those powers. It is recommended that there should1 Com (2011) 326/32 Com (2010) 392/3136
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