Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
⎯ the right of access to a lawyer does not extend to the provision ofassistance from a solicitor of the suspect’s choice and no alteration tothe legislation is required in this regard. Where the suspect requestsaccess to a named solicitor, however, in accordance with currentpractice, efforts should be made to secure the attendance of thatlawyer within a reasonable time. No legislation is required in this area;⎯ in exceptional circumstances, the police must be able to delay all, orany part of, the person’s right of access to a lawyer or to withhold all,or any part of, that right. But there should not be any statutorydefinition of what is meant by “exceptional circumstances”;⎯ there is no need to set out in legislation what the role of the solicitormay be. The University Law Schools and the Law Society should beencouraged to formulate guidance for solicitors in advising clients in apolice station. Understanding the role of the solicitor in that regardshould be part of COPFS and police training;⎯ subject to what is determined to be reasonable remuneration in legalaid cases, it is for the suspect to decide whether the advice from alawyer should be provided in person, or by other means such as bytelephone or internet video link and whether he/she requires asolicitor to be present during any interview; and⎯ legislation should expressly provide that adults who are not vulnerablemay waive the right of access to a lawyer. It should state that waivermust be express and recorded. The right cannot be waived unless anduntil the person has been fully informed of the right.168
6.2 QUESTIONINGIntroduction6.2.1 The decision of the European Court in Salduz was that the right of access to alawyer arose “as from the first interrogation of a suspect by the police”. InDayanan, the Court broadened the ambit of the right of access to a lawyerbeyond pre-interrogation advice by stating that it applied to all persons whowere detained in custody and not just to those who were to be interviewed. InAmbrose, the United Kingdom Supreme Court provided some clarification onthe meaning of Salduz by confining the right of access to a lawyer to thosesuspects who have been put in a “sufficiently coercive” position or “deprivedof [their] liberty of movement”. A principal focus of this Review has been theextent to which the conduct of police questioning of a suspect can beconsistent with his/her right to a fair trial. This Chapter therefore explores thepurpose of, and limitations on, police questioning in general and looksspecifically at the issue in Cadder, which addressed the circumstances inwhich statements by suspects, obtained in response to questioning, areadmissible as evidence at trial.Current Law6.2.2 Police questioning may serve a number of purposes. It allows the police toseek to establish: whether a crime has been committed at all, whether a suspectcan be identified, whether that suspect is indeed the perpetrator of the crime169
- Page 120 and 121: jurisdictions where judicial or oth
- Page 122 and 123: where they are uncertain of what th
- Page 124 and 125: 122
- 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 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
- 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 172 and 173: and whether there is sufficient evi
- 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
- Page 198 and 199: hour maximum detention period, in a
- Page 200 and 201: incrimination. It should be specifi
- Page 202 and 203: accused’s first appearance on pet
- Page 204 and 205: 202
- Page 206 and 207: Current law6.3.4 For the purposes o
- Page 208 and 209: to a Hearing or prosecuted in court
- Page 210 and 211: ight of access to the child, subjec
- Page 212 and 213: Constabulary on the conditions in w
- Page 214 and 215: he/she has a specific right to “p
- Page 216 and 217: general thrust of what is said by t
- Page 218 and 219: 6.3.21 In many jurisdictions 43 a c
6.2 QUESTIONINGIntroduction6.2.1 The decision of the European Court in Salduz was that the right of access to alawyer arose “as from the first interrogation of a suspect by the police”. InDayanan, the Court broadened the ambit of the right of access to a lawyerbeyond pre-interrogation advice by stating that it applied to all persons whowere detained in custody <strong>and</strong> not just to those who were to be interviewed. InAmbrose, the United Kingdom Supreme Court provided some clarification onthe meaning of Salduz by confining the right of access to a lawyer to thosesuspects who have been put in a “sufficiently coercive” position or “deprivedof [their] liberty of movement”. A principal focus of this Review has been theextent to which the conduct of police questioning of a suspect can beconsistent with his/her right to a fair trial. This Chapter therefore explores thepurpose of, <strong>and</strong> limitations on, police questioning in general <strong>and</strong> looksspecifically at the issue in Cadder, which addressed the circumstances inwhich statements by suspects, obtained in response to questioning, areadmissible as evidence at trial.Current Law6.2.2 Police questioning may serve a number of purposes. It allows the police toseek to establish: whether a crime has been committed at all, whether a suspectcan be identified, whether that suspect is indeed the perpetrator of the crime169
Change language