Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
at the diet of trial to exclude his/her interview on the grounds of generalArticle 6 unfairness, including the infringement of some particularexclusionary rule, such as the failure to afford him/her access to a lawyer.6.2.15 There is no requirement on the police to question a suspect at any stage. Thereare many cases, such as minor public disorder offences, in which the criminalbehaviour has been observed by the police, or others, and questioning wouldserve little, if any, useful purpose. It may be seen as involving unnecessaryand pointless expenditure of time and resources. In these cases, the suspectsare not normally interviewed. They are not detained under section 14. Theyare simply arrested and charged. There have been comments that the policeshould not be able to circumvent the right of a person in custody to haveaccess to a lawyer by the expedient of not interviewing him/her. The Reviewdoes not consider that this happens in practice; that is to say that the policemake such a conscious choice and, in any event, as is dealt with elsewhere, theright of access to a lawyer must now be taken to arise when a suspect isdetained, irrespective of whether there is an intention to interview 11 .The accused – cessation of questioning6.2.16 If police questioning has a clear purpose, such as to confirm or dispel anysuspicion, then, at least in theory, it ought to cease when that purpose isachieved or when it becomes clear that the purpose cannot be achieved byfurther questioning. Most notably, when suspicion is confirmed, a suspect isentitled at common law to be protected from further questioning. At the risk11 see Chapter 6.1 – Legal Advice, para 6.1.11 under reference to Dayanan176
of unnecessary repetition of quotations, as was observed by the Lord Justice-Clerk (Thomson) in Chalmers 12 :“There does come a time, however, when a police officer, carrying outhis duty honestly and conscientiously, ought to be in a position toappreciate that the man whom he is in process of questioning is underserious consideration as the perpetrator of the crime. Once that stageof suspicion is reached, the suspect is in the position that thereafter theonly evidence admissible against him/her is his own voluntarystatement”.This protection is most clearly provided when the suspect is charged with thecrime. If charged, questioning must, under the present law 13 , cease, althougha charged suspect may elect thereafter to provide a voluntary statement,customarily taken by senior officers unconnected with the enquiry.6.2.17 The prohibition against questioning is therefore bound up with the point ofpolice charge. Under the common law, it was thought that a suspect should becharged at the point at which there becomes sufficient evidence to do so.Partly prompted by the section 14 detention system, which pre-supposes aninterview, this is frequently not done. However, under the current system ofdetention, as distinct from arrest, there is a maximum statutory period on theexpiry of which the suspect must be charged or released.6.2.18 The Lord Justice-Clerk’s dictum in Chalmers remains an accurate, ifincomplete, summary of the law. It is intended to protect suspects againstwhom there is already evidence, which is sufficient for a charge, but where the12 Chalmers, at 8213 Aiton v HM Advocate 1987 JC 41 LJ-C (Ross) at 43; HM Advocate v Penders 1996 JC 107; Starkand Smith v HM Advocate 1938 JC 43; Morrison v Burrel 1947 JC 43177
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at the diet of trial to exclude his/her interview on the grounds of generalArticle 6 unfairness, including the infringement of some particularexclusionary rule, such as the failure to afford him/her access to a lawyer.6.2.15 There is no requirement on the police to question a suspect at any stage. Thereare many cases, such as minor public disorder offences, in which the criminalbehaviour has been observed by the police, or others, <strong>and</strong> questioning wouldserve little, if any, useful purpose. It may be seen as involving unnecessary<strong>and</strong> pointless expenditure of time <strong>and</strong> resources. In these cases, the suspectsare not normally interviewed. They are not detained under section 14. Theyare simply arrested <strong>and</strong> charged. There have been comments that the policeshould not be able to circumvent the right of a person in custody to haveaccess to a lawyer by the expedient of not interviewing him/her. The Reviewdoes not consider that this happens in practice; that is to say that the policemake such a conscious choice <strong>and</strong>, in any event, as is dealt with elsewhere, theright of access to a lawyer must now be taken to arise when a suspect isdetained, irrespective of whether there is an intention to interview 11 .The accused – cessation of questioning6.2.16 If police questioning has a clear purpose, such as to confirm or dispel anysuspicion, then, at least in theory, it ought to cease when that purpose isachieved or when it becomes clear that the purpose cannot be achieved byfurther questioning. Most notably, when suspicion is confirmed, a suspect isentitled at common law to be protected from further questioning. At the risk11 see Chapter 6.1 – Legal Advice, para 6.1.11 under reference to Dayanan176
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