Report and Recommendations - Scottish Government

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(b) To consider the implications of the recent decisions, in particular the legaladvice prior to and during police questioning, and other developments in theoperation of detention of suspects since it was introduced in Scotland in 1980on the effective investigation and prosecution of crime;(c) To consider the criminal law of evidence, insofar as there are implicationsarising from (b) above, in particular the requirement for corroboration and thesuspect's right to silence;(d) To consider the extent to which issues raised during the passage of TheCriminal Procedure (Legal Assistance, Detention and Appeals)(Scotland) Act2010 may need further consideration and the extent to which the provisions ofthe Act may need amendment or replacement; and(e) To make recommendations for further changes to the law and to identifywhere further guidance is needed, recognising the rights of the suspect, therights of victims and witnesses and the wider interests of justice whilemaintaining an efficient and effective system for the investigation andprosecution of crime.How the Review was carried outReview Team1.0.8 The Review Team was established in December 2010. It consisted of: aSecretary to the Review; a lawyer on secondment from the ScottishGovernment; a procurator fiscal loaned by the Crown Office; a ProjectManager; and a Project Officer. The team was also greatly assisted by a ChiefSuperintendent of police acting as a consultant.Reference Group1.0.9 The Review was supported by an expert Reference Group consisting ofleading practitioners and representatives in relevant fields. A full list of themembers of the Group, and the Review Team, is provided in Annex D. The14
ole of the Group was to provide the Review with advice, as it developed itsideas on the range of issues to be addressed, and to act as a sounding board,offering insights, criticisms and comments in the development of the Review’swork. The Group was not required to reach a consensus view on any issue orto endorse the report and its recommendations. After a number of individualmeetings with the Team, the Reference Group met in plenary session for thefirst time on 20 December. There were four meetings of the full Group in thecourse of the Review and many other meetings on a smaller sub-group orindividual basis to test possible options and ideas.1.0.10 All papers and minutes from each of the Reference Group meetings, alongwith notes of the more focused meetings, are published on the Review websiteat www.carlowayreview.org.Public Consultation1.0.11 It was essential that the recommendations were developed with the widestpossible consultation to ensure that all relevant aspects were considered and,in particular, that the proposals were grounded in practical experience andunderstanding. The Review accordingly launched a consultation document on8th April 2011. This put the scope of the issues for consideration into thepublic domain and was a key stage in the development of the proposals thatultimately formed the Review’s recommendations.The consultationdocument addressed four main themes: Key elements of Custody; Key stagesof Custody; Evidence; and Appeals. It identified 34 questions which wouldprovide the principal (although not exclusive) focus of the Review.15
Page 1: TheCarloway ReviewReport andRecomme
Page 4 and 5: highly disruptive to the system gen
Page 9: LIST OF ABBREVIATIONS1995 Act The C
Page 13 and 14: 1.0 INTRODUCTIONBackground1.0.1 In
Page 15: a solicitor” prior to, and at any
Page 19 and 20: of the points made at each of these
Page 21 and 22: Topics outwith the scope of the Rev
Page 23: Convention, describes the overall v
Page 26 and 27: Justice-Clerk (Inglis) stated to a
Page 28 and 29: arrest and liberty. There was nothi
Page 30 and 31: he/she does not do so, he/she risks
Page 32 and 33: e a matter of fact to be determined
Page 34 and 35: question the suspect until he/she b
Page 36 and 37: Committee’s report when read as a
Page 38 and 39: ultimate arbiter of constitutionali
Page 40 and 41: was cautioned, but not told that he
Page 42 and 43: at the whole circumstances of the c
Page 44 and 45: Cadder2.0.35 Mr Cadder was aged 16
Page 46 and 47: 2.0.39 Compelling reasons would hav
Page 48 and 49: 2.0.44 These guidelines were supers
Page 50 and 51: first required to have been “subs
Page 52 and 53: The long term implication of this,
Page 54 and 55: and of society as a whole. The purp
Page 56 and 57: giving rise to the reasonable suspi
Page 58 and 59: 3.0.15 The right of silence and the
Page 60 and 61: complacency must be avoided and the
Page 62 and 63: unlawful for a public authority to
Page 64 and 65: 4.0.3 In short, the Review has gras
Page 66 and 67:
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
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Current law5.2.3 In terms of sectio
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5.2.5 Particularly in view of the t
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individuals were being detained wit
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significant crimes, reflected that
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ConsiderationThe period before char
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the investigation and prosecution o
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ignored. There are about 100 detent
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5.2.26 Scotland is a small jurisdic
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5.2.29 Continuing with the custody
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5.2.32 The sheriffs principal and s
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jurisdictions where judicial or oth
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where they are uncertain of what th
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122
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The grounds for arrest and initial
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procurator fiscal consider that the
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the standard bail conditions and, i
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prudent, therefore, to constrain an
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to challenge any conditions before
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⎯ the exercise of the powers to l
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the nature and scope of police ques
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suspect the right of access to an a
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involving the suspect having inform
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6.1.3 It was essential that the Rev
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6.1.7 In Ireland 7 , a suspect in c
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lawyer at that stage, although the
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detained suspect must have prompt a
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interview. That is the general posi
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doubt remain dependent upon the sta
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of non-qualified persons posed a pr
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eing interviewed, or otherwise hind
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proportionate. If a conflict does o
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6.1.36 In England and Wales, resear
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context and returning to the genera
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Waiver6.1.41 The European Court has
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until shortly before his/her attend
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⎯ the right of access to a lawyer
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and whether there is sufficient evi
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the degree of suspicion, and to adv
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is detained 7 . Regardless of wheth
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at the diet of trial to exclude his
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police elect, for whatever reason,
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sense, are inadmissible if objected
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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
Page 216 and 217:
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
Page 228 and 229:
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
Page 292 and 293:
neither a statutory nor a common la
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trial judge, in determining whether
Page 296 and 297:
Other JurisdictionsSubmissions at T
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7.3.13 In Australia 29 :“…if th
Page 300 and 301:
Consideration7.3.18 There is a view
Page 302 and 303:
300
Page 304 and 305:
at least in connection with witness
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with the complainer’s consent. By
Page 308 and 309:
Other jurisdictions7.4.7 The positi
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evidence against him (i.e. presumab
Page 312 and 313:
fact on the other. This is especial
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7.4.17 The common law can certainly
Page 316 and 317:
314
Page 318 and 319:
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
Page 374 and 375:
372Annex A
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Annex AFiscal) to assess these case
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Annex Aconviction, were the rule of
Page 380 and 381:
378Annex A
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Annex BRight of access to a lawyer
Page 384 and 385:
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
Page 414:
Annex GArticles (continued)Title Au
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