Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
and whether there is sufficient evidence to charge him/her with the crime.This means that the police may question at least three broad categories ofperson: the witness, the suspect and the accused. Police powers, as this fieldof the law has been traditionally called, have been defined accordingly.The witness6.2.3 Where a person is not under suspicion, but is regarded only as a witness, thepolice can question that person, if they wish. They have no power to compelhim/her to submit to questioning 1 , far less to answer any questions or to do sotruthfully. They have no power to detain a witness because he/she will notrespond to questioning. The only requirement on a person who is a potentialwitness is to provide personal details (name, date of birth and address etc).He/she may be required to “remain with” the police officer for that purpose 2 .Failure to provide personal details is a criminal offence, punishable by way ofa fine. The police officer can arrest without warrant a person who fails tocomply with his/her request for those details. Otherwise, there is no sanctionin respect of a witness who refuses to co-operate with the police by notanswering questions or by doing so in a manifestly untruthful or unreliablemanner.6.2.4 If the police do ask questions of a witness, there is no obligation to advise thewitness of any rights. In particular, there is no requirement to tell the witnessabout the general right of silence or that he/she need not answer any questionswhich might incriminate him/her or indeed at all. There is no obligation to1 the procurator fiscal can, however, compel a witness to attend for precognition; 1995 Act s 267A2 1995 Act s 13170
explain to the witness that he/she might want to seek legal advice. There is norequirement to facilitate access to a lawyer. Of course, if a witness wishes toconsult a lawyer before answering any questions, other than those relating tohis/her personal details, he/she is at liberty to do so.6.2.5 The line between who is a witness and who is a suspect is not always a clearone. In many situations, when the police question persons to elicit informationabout a crime, these are persons whom the police do not suspect of anyinvolvement in the crime. The risk of such a witness incriminatinghimself/herself would not normally be anticipated and any unexpectedincriminating statement made by him/her in response to questioning is likelyto be regarded as having been fairly obtained and thus admissible against thatperson at any subsequent trial. However, once some form of incriminatingresponse is made, the witness immediately becomes a suspect who must becautioned before being questioned further.6.2.6 There are witnesses of whom the police are vaguely suspicious, but wherethere are no reasonable grounds for suspicion or upon whom suspicion has notcrystallised. Thus, the police may know that at least one person out ofhundreds on the Orient Express may be the murderer, but have no indicationas to which one. Any person on the train whom the police choose to question,although potentially the murderer, is not a suspect in the legal sense. Thepolice have no power to detain him/her for questioning, but conversely theyare not obliged to caution him/her before they do question him/her. In practice,the police may elect to caution a witness in such circumstances, depending on171
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explain to the witness that he/she might want to seek legal advice. There is norequirement to facilitate access to a lawyer. Of course, if a witness wishes toconsult a lawyer before answering any questions, other than those relating tohis/her personal details, he/she is at liberty to do so.6.2.5 The line between who is a witness <strong>and</strong> who is a suspect is not always a clearone. In many situations, when the police question persons to elicit informationabout a crime, these are persons whom the police do not suspect of anyinvolvement in the crime. The risk of such a witness incriminatinghimself/herself would not normally be anticipated <strong>and</strong> any unexpectedincriminating statement made by him/her in response to questioning is likelyto be regarded as having been fairly obtained <strong>and</strong> thus admissible against thatperson at any subsequent trial. However, once some form of incriminatingresponse is made, the witness immediately becomes a suspect who must becautioned before being questioned further.6.2.6 There are witnesses of whom the police are vaguely suspicious, but wherethere are no reasonable grounds for suspicion or upon whom suspicion has notcrystallised. Thus, the police may know that at least one person out ofhundreds on the Orient Express may be the murderer, but have no indicationas to which one. Any person on the train whom the police choose to question,although potentially the murderer, is not a suspect in the legal sense. Thepolice have no power to detain him/her for questioning, but conversely theyare not obliged to caution him/her before they do question him/her. In practice,the police may elect to caution a witness in such circumstances, depending on171
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