Report and Recommendations - Scottish Government

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until shortly before his/her attendance at court. It may also be that somesuspects will consider that requesting legal advice is likely to prolong theirperiod in custody.6.1.45 In recent studies carried out in England and Wales, a variety of factorsinfluencing a suspect’s decision to waive advice was identified. Theseincluded 46 :“factors connected to suspects (including ethnicity, haste, offenceseriousness, self-defined guilt/innocence, prior experience of custodyand of legal advisers); the police (including ploys and informalconversations); and legal advisers (including their availability,experience and competence)”.The decisions made by suspects were complex, highly subjective andcontingent on the custody environment and what suspects were told bysolicitors.6.1.46 It is predicted, following the experience in England and Wales, that, over time,waiver rates will fall. Within a short number of years, waiver will cease to bethe norm 47 .6.1.47 It is important that the circumstances under which waiver is exercised arecarefully regulated for the protection of suspects against the inadvertent orunwitting surrender of their human rights. This is in the interests of thecriminal justice system as a whole, particularly given that the admissibility of46 Skinns (supra) at 34; see also Pleasance et al : The Justice Lottery Police station advice 25 years onfrom PACE [2011] Crim LR 347 Skinns (supra) at 22166
statements made during questioning now depends in part on how the right ofaccess to a lawyer is delivered. It would, therefore, be helpful if legislationexpressly provided that adults who are not vulnerable may waive the right ofaccess to a lawyer but that the waiver must be express and recorded. As notedabove, the right cannot be waived unless and until the person had been fullyinformed of the right 48 .RecommendationsI therefore recommend that:⎯ there is no need to require the police to secure access by a suspect to alawyer outwith a police station and no legislation is required in thatregard;⎯ part of the standard caution prior to the interviewing of suspectsoutwith a police station should include the information that he/she hasa right of access to a solicitor if he/she wishes;⎯ the provisions of the 1995 Act (s 15A(3)) introduced by the 2010 Act,which entitle a suspect to have access to a solicitor (a) before anyquestioning at a police station and (b) during questioning, require tobe amended to provide that such access is available, regardless ofquestioning, as soon as practicable after (under the recommendedregime) the detention of the arrested suspect at the police station;⎯ a “letter of rights” should be drafted without delay. Every arrestedand detained suspect should be provided with a copy of that letterunless there are particular reasons not to do so;⎯ it should continue to be the case that access to a lawyer means only toan enrolled solicitor;⎯ the legislation should be amended to make it clear that, although it isthe police officer’s obligation to ensure that “intimation” of arrest,detention and request for assistance is made, it need not be madespecifically by a police officer or to a solicitor in person. It shouldallow for forms of contact other than by telephone;48 Jude v HM Advocate (supra)167
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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
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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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Page 126 and 127: The grounds for arrest and initial
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Page 132 and 133: prudent, therefore, to constrain an
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Page 140 and 141: suspect the right of access to an a
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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 150 and 151: detained suspect must have prompt a
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
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Page 176 and 177: is detained 7 . Regardless of wheth
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Page 182 and 183: sense, are inadmissible if objected
Page 184 and 185: the suspect’s right to silence an
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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
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Page 206 and 207: Current law6.3.4 For the purposes o
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Page 212 and 213: Constabulary on the conditions in w
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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
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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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