Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
doubt remain dependent upon the status of the person interviewed as witnessor suspect, the giving of an appropriate caution to any suspect, the degree ofcurtailment of the suspect’s liberty at the time and the validity of any waiverby the constrained suspect of his/her right of access to a lawyer.Communication of Rights6.1.22 Following the 2010 Act, a suspect, who is in a police station voluntarily orotherwise, must be informed of the right to have intimation of his/her arrest ordetention sent to a solicitor and of the right to a private consultation with thesolicitor 24 prior to any interview. There is no statutory provision on how thisshould be done. The ACPOS Manual of Guidance on Solicitor Accessspecifies standard wording, which it recommends should be used to ensurethat any decision by the suspect to waive his/her rights is properly informedand recorded.6.1.23 The proposed EU Directive on the Right of Access to a Lawyer 25 says verylittle on this topic. However, the EU Commission is developing a Directive onthe Rights to Information in criminal proceedings 26 . The current draftincludes a requirement to provide information in the form of a “letter ofrights”. This was inspired by the letter of rights currently available to suspectswho have been arrested in England and Wales 27 .24 s 15A (6) of the 1995 Act, as inserted by Criminal Procedure (Legal Assistance, Detention andAppeals) (Scotland) Act 201025 supra26 supra27http://www.homeoffice.gov.uk/publications/police/815449/notice-ofrights/NOTICES_OF_RIGHTS_ENTITLEMEN.pdf?view=Binary152
6.1.24 Notwithstanding that EU legislation may in time require the provision of aletter of rights, there is no reason why this should not be done now. Everysuspect, who is in a police station, should be entitled to a paper copy of thatletter unless there are special reasons why he/she should not be given such acopy. The letter should include information about the right of access to alawyer. Provision of this letter will assist in demonstrating that the suspect hasindeed been informed of his/her right to legal advice. Obviously, the lettershould be available in different languages and in different forms 28 to takeaccount of any linguistic difficulties or physical and other disabilities.How the Right is provided6.1.25 Access to a lawyer should mean just that. The advice should be provided byan enrolled solicitor. For a right of access to a lawyer to be “practical andeffective”, the advice needs to be provided by a person who is a lawyer andthus suitably qualified to give such advice. As a generality, there appears tobe no shortage of enrolled solicitors who are willing to advise suspects,provided that the financial arrangements are satisfactory.6.1.26 The Review notes that, when PACE was first introduced in England andWales, the opposite was the case. There was considerable delegation to nonqualifiedstaff or to agencies, especially for calls from police stations outwithnormal working hours 29 . There was a variety of reasons for this, partly, butnot exclusively, related to the legal aid rates for police station work. The use28 e.g. audible and braille29 see Royal Commission on Criminal Justice Study: Custodial Advice and the Right to Silence (1993)and McConville et al: Standing Accused : The Organisation and Practices of Criminal DefenceLawyers in Britain (1994)153
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doubt remain dependent upon the status of the person interviewed as witnessor suspect, the giving of an appropriate caution to any suspect, the degree ofcurtailment of the suspect’s liberty at the time <strong>and</strong> the validity of any waiverby the constrained suspect of his/her right of access to a lawyer.Communication of Rights6.1.22 Following the 2010 Act, a suspect, who is in a police station voluntarily orotherwise, must be informed of the right to have intimation of his/her arrest ordetention sent to a solicitor <strong>and</strong> of the right to a private consultation with thesolicitor 24 prior to any interview. There is no statutory provision on how thisshould be done. The ACPOS Manual of Guidance on Solicitor Accessspecifies st<strong>and</strong>ard wording, which it recommends should be used to ensurethat any decision by the suspect to waive his/her rights is properly informed<strong>and</strong> recorded.6.1.23 The proposed EU Directive on the Right of Access to a Lawyer 25 says verylittle on this topic. However, the EU Commission is developing a Directive onthe Rights to Information in criminal proceedings 26 . The current draftincludes a requirement to provide information in the form of a “letter ofrights”. This was inspired by the letter of rights currently available to suspectswho have been arrested in Engl<strong>and</strong> <strong>and</strong> Wales 27 .24 s 15A (6) of the 1995 Act, as inserted by Criminal Procedure (Legal Assistance, Detention <strong>and</strong>Appeals) (Scotl<strong>and</strong>) Act 201025 supra26 supra27http://www.homeoffice.gov.uk/publications/police/815449/notice-ofrights/NOTICES_OF_RIGHTS_ENTITLEMEN.pdf?view=Binary152
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