Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
proportionate. If a conflict does occur, the matter must be resolved inaccordance with the Article 5 right by providing access to a lawyer withinwhat the criminal justice system must determine is a reasonable time. As thisReview is proposing a maximum of twelve hours detention beforecharge/report, with a review after six hours, the effect is that, at least in thenormal case in the Central Belt and other urban areas, what is a reasonabletime must be calculated in terms of a few hours, and certainly normally aperiod well short of the Review maximum. So far as has been observed withthe practical operation of the Call Centre system, this is achievable in almostall cases. However, the effort required to secure effective protection of Article5 and 6 rights in this context should not be overlooked. Even at present, underthe existing arrangements, the Centre often has to deal with over 60 calls perday and this may well increase over time.Withholding the Right6.1.33 In exceptional circumstances, the police must be able to delay all, or any partof, a suspect’s right of access to a lawyer or to withhold all, or any part of, thatright. The Review does not consider that there is any need for a statutorydefinition of what is meant by “exceptional circumstances”. Cadder has madeit tolerably clear that “exceptional” effectively means “very rare”. TheReview would understand that a rare situation would be, for example, wherethe immediate interview of a suspect is required in order to protect persons 31or property from serious harm.31 e.g. the situation in Gafgen (supra)158
6.1.34 There may be exceptional circumstances when it is not appropriate for thesolicitor of choice to advise, or to continue to advise, a suspect. The solicitormay, for example, be suspected of involvement in the crime underinvestigation or thought capable of passing on inappropriate messages fromthe suspect to others, including those also involved. The Review accepts thatthis would be an extremely rare event, but it is not one which should bediscounted altogether. In such circumstances, the police will be entitled torefuse a request to contact a solicitor of choice. The ACPOS Manual ofGuidance on Solicitor Access deals with this situation adequately albeit ingeneral terms 32 . Were its application to be perceived as unfair in a particularcase, the court would exclude any answers made to questioning accordingly.Of course, the police response to such circumstances ought to be proportionate.Thus they should not withhold the entire right to legal advice, if withholdingof part of the right would be sufficient. For example, if it were not thoughtappropriate for a suspect to speak to his/her solicitor “in private” then thisshould not result in the suspect not having any access to his/her solicitor at all.Role of the solicitor6.1.35 The role of the solicitor in providing advice does not require to be set out inlegislation. However, for the system to be effective, solicitors advising clientsmust have adequate training. The Review has no reason to suppose thatsolicitors working in criminal defence work will not be so trained, but therewill remain a need to guard against complacency in this area, especially giventhe experience in England and Wales.32 e.g. para 11.1 of version 1.0 January 2011159
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6.1.34 There may be exceptional circumstances when it is not appropriate for thesolicitor of choice to advise, or to continue to advise, a suspect. The solicitormay, for example, be suspected of involvement in the crime underinvestigation or thought capable of passing on inappropriate messages fromthe suspect to others, including those also involved. The Review accepts thatthis would be an extremely rare event, but it is not one which should bediscounted altogether. In such circumstances, the police will be entitled torefuse a request to contact a solicitor of choice. The ACPOS Manual ofGuidance on Solicitor Access deals with this situation adequately albeit ingeneral terms 32 . Were its application to be perceived as unfair in a particularcase, the court would exclude any answers made to questioning accordingly.Of course, the police response to such circumstances ought to be proportionate.Thus they should not withhold the entire right to legal advice, if withholdingof part of the right would be sufficient. For example, if it were not thoughtappropriate for a suspect to speak to his/her solicitor “in private” then thisshould not result in the suspect not having any access to his/her solicitor at all.Role of the solicitor6.1.35 The role of the solicitor in providing advice does not require to be set out inlegislation. However, for the system to be effective, solicitors advising clientsmust have adequate training. The Review has no reason to suppose thatsolicitors working in criminal defence work will not be so trained, but therewill remain a need to guard against complacency in this area, especially giventhe experience in Engl<strong>and</strong> <strong>and</strong> Wales.32 e.g. para 11.1 of version 1.0 January 2011159
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