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detained suspect must have prompt access to a lawyer even if he/she is notgoing to be questioned at all.6.1.13 This approach is consistent with the draft EU Directive on the Right of Accessto a Lawyer etc. 21 , which provides in Article 3(1) that:“Member States shall ensure that suspects and accused persons aregranted access to a lawyer as soon as possible and in any event:(a) before the start of any questioning by the police or other lawenforcement authorities;(b) upon carrying out any procedural or evidence gathering act atwhich the person’s presence is required or permitted as a right inaccordance with national law, unless this would prejudice theacquisition of evidence;(c) from the outset of deprivation of liberty”.6.1.14 As currently drafted, the suspect or accused must be allowed to meet thesolicitor and the solicitor can be present at any interview, when he/she can askquestions or require clarification and make statements 22 . The solicitor isentitled to check the conditions of the place of detention. The Directive mayor may not be agreed in its current form, but it serves as a pointer to the waythe law may develop.6.1.15 The recent decision in Ambrose states that the right of access to a lawyer doesnot only arise at the point when a person has been formally arrested ordetained. It will arise when a suspect has been put in a “sufficiently coercive”position or is “deprived of his liberty of movement”. The Review has some21 2011 COM 326/322 Article 4148
difficulty in grasping when such situations could arise in practice short ofarrest, either at common law or under a specific statutory provision, ordetention. But it proceeds tentatively on the basis that there may be hybridsituations where a suspect has been restrained but not fully informed of his/herformal legal status. It must be recognised that, in such situations and those inwhich the person is under arrest or detention, it will often not be practicable toprovide access to a lawyer at the place of arrest, detention or informal restraint.That being so, unless the right is waived, the answers to any questions will beinadmissible until access is afforded.ConsiderationWhen and how the Right Arises6.1.16 In his submissions to the United Kingdom Supreme Court in Ambrose 23 , theLord Advocate argued that the right of access to a lawyer under Article 6 aroseonly when a suspect was in police custody and subject to interrogation. Thissubmission succeeded to the extent that, in terms of the protection afforded byArticle 6, the suspect required to be being questioned at a point when his/herposition was “sufficiently coercive” or he/she had been deprived of “hisliberty of movement”.6.1.17 Under the 2010 Act, when a suspect has been arrested and is detained at apolice station, or if he/she has attended a police station voluntarily, he/shemust be able to access a lawyer including before and during any police23 at para 61149
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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
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5.1.15 Reasonable suspicion permits
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arrest, without warrant, any person
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interview. The Court stated that th
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of the suspect and subsequent crimi
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appropriate ground for both arrest
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justified by the evidence gathered
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(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
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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 136 and 137: ⎯ the exercise of the powers to l
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 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
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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
Page 186 and 187: and reliable, e.g. to clear up ambi
Page 188 and 189: “would have such an adverse effec
Page 190 and 191: 6.2.38 As noted above, section 78 o
Page 192 and 193: ensure that reasonable lines of enq
Page 194 and 195: determining fairness in certain cas
Page 196 and 197: permission to do so. The applicatio
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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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