Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
suspect the right of access to an appropriate adult. Again the Reviewrecognises that, as with child suspects, vulnerable adult suspects have a widerange of ability and understanding. Therefore, the Review recommends that avulnerable suspect should be able to waive his/her right of access to a lawyer,but only if the appropriate adult agrees.6.0.8 By looking at the chapters in this section together, an investigative processshould be created that gives the police the flexibility to question suspects,where that is required or desirable in order to gather information. Thesafeguards that are recommended should ensure that the suspect’s right to afair trial is not infringed, regardless of his/her age or any vulnerability, andthat therefore the risk of evidence, gathered during the police investigation,being regarded as inadmissible in Article 6 terms is reduced.6.0.9 There is a general concern that is worth emphasising, even if the Review is notclear about what it may ultimately mean. Traditionally, the law has lookedupon the trial of a person as being that stage at the end of a first instancecriminal process when the accused appears before a judge, or judge and jury,and evidence is led of his/her involvement in the crime charged. Theprocedure of that adversarial process is monitored by the judge, as thecompetent authority entrusted with ensuring that the trial is fairly conducted.At various earlier procedural stages, the judge is also present and can overseewhat occurs. This is, of course, a core function of a judge in any legal process.After the transfer of the investigative role from sheriff to procurator fiscal topolice, the interview of a suspect by the police was still not regarded as part of138
the trial process. Indeed, questioning was generally discouraged as not beingthe function of the police. Interview of a suspect was seen as the preserve ofthe sheriff. This attitude prevailed long after the sheriffs had ceased toexamine suspects. However, as time has passed and public expectations havechanged, the role of the police interview as both an investigative tool and asource of evidence has become enhanced.6.0.10 In Convention terms, the interview is likely to be regarded as part of the trialprocess, should a prosecution follow. The consequent curiosity of that is that,during this part of the trial, there is no judge to oversee or to regulate itsfairness at the time. Thus, when a suspect complains of a lack of informationon the nature of the charges or the evidence against him/her, neither he/she,nor his/her solicitor (if any), has any immediate means of compelling orpersuading the police to provide that information before proceeding tointerview.Where he/she complains of tiredness or other conditionundermining his/her ability to answer questions, there is no independentmethod available to address that problem. The judge’s role is one which canonly be to review the interview ex post facto. The practical effect of all of this,in a system which encourages interview, perhaps with a lawyer present or atleast with access to a lawyer beforehand, as an integral or essential part of thetrial process, is that a significant part of the suspect’s trial, in a traditionalsense, is being moved in both time and location from the court room setting tothat of the police station. The right to silence and the privilege against selfincrimination, which are afforded by the presence of the judge and theformalities of the court room, are removed, or rather replaced, by a system139
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suspect the right of access to an appropriate adult. Again the Reviewrecognises that, as with child suspects, vulnerable adult suspects have a widerange of ability <strong>and</strong> underst<strong>and</strong>ing. Therefore, the Review recommends that avulnerable suspect should be able to waive his/her right of access to a lawyer,but only if the appropriate adult agrees.6.0.8 By looking at the chapters in this section together, an investigative processshould be created that gives the police the flexibility to question suspects,where that is required or desirable in order to gather information. Thesafeguards that are recommended should ensure that the suspect’s right to afair trial is not infringed, regardless of his/her age or any vulnerability, <strong>and</strong>that therefore the risk of evidence, gathered during the police investigation,being regarded as inadmissible in Article 6 terms is reduced.6.0.9 There is a general concern that is worth emphasising, even if the Review is notclear about what it may ultimately mean. Traditionally, the law has lookedupon the trial of a person as being that stage at the end of a first instancecriminal process when the accused appears before a judge, or judge <strong>and</strong> jury,<strong>and</strong> evidence is led of his/her involvement in the crime charged. Theprocedure of that adversarial process is monitored by the judge, as thecompetent authority entrusted with ensuring that the trial is fairly conducted.At various earlier procedural stages, the judge is also present <strong>and</strong> can overseewhat occurs. This is, of course, a core function of a judge in any legal process.After the transfer of the investigative role from sheriff to procurator fiscal topolice, the interview of a suspect by the police was still not regarded as part of138
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