Report and Recommendations - Scottish Government

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1.0.12 The formal consultation period lasted for 8 weeks, officially closing on 3 June.The Review received 50 responses from various bodies and organisationswithin the criminal justice system. The list of those who responded is atAnnex F.Roadshows1.0.13 As part of the consultation process the Review held four “roadshows” inAberdeen, Edinburgh, Glasgow and Inverness. These were aimed at attractinga wide range of those with an interest in the content of the consultationdocument, with discussions centred on four main topics: Police Custody, theForm of Legal Advice, Corroboration and Adverse Inference. The Reviewalso hosted an additional roadshow in Edinburgh which explored issuesaround Appeals and the provisions of the 2010 Act relating to the ScottishCriminal Cases Review Commission.1.0.14 There were approximately 220 people in attendance over the Review’s five‘roadshow’ events. These included: a large number of defence lawyers frompractices based across Scotland; representatives from all of Scotland’s 8 policeforces as well as number of other national police organisations; Crown Officeand Procurator Fiscal Service fiscals and staff from offices across the country;representatives from university law schools; sheriffs; Justices of the Peace,Commissioners from the SCCRC; a wide representation from the variousvictims groups; and officials from various public bodies and specialistreporting agencies with an interest in the topics covered by the Review. Notes16
of the points made at each of these roadshows were published on the Reviewwebsite.Research1.0.15 In addition to the consultation process, the Review sought to explore the lawand practice in a number of other jurisdictions and the resultant jurisprudenceflowing from the applicability of the European Convention. This involved acombination of desk research and discussions with practitioners and academicexperts in those areas. A list of those with whom these issues were discussedis set out at Annex E. It is, however, worth describing the principaldiscussions that the Review undertook. The Review visited Manchester andLondon in order to have a greater understanding of PACE and the differenttest for sufficiency of evidence in England and Wales. It had a series ofmeetings with defence counsel and solicitors, the police, and the CrownProsecution Service. In Manchester it visited the Crown Court and discussedthe issues with the judges there. In London it went to the Criminal AppealCourt with a view to seeing how the appeal system operated in relation to bothprocedure and the substantive merits of cases. It also sought to ascertain howthe Court interacted with the Criminal Cases Review Commission in Englandand Wales. It visited Birmingham in order to seek the CCRC view on thesame and other topics. The Review visited Dublin to see how Ireland wasapproaching the central issues of custody and access to legal advice and tounderstand its appeal system, including appeals to Ireland’s Supreme Court.There it also met with defence counsel and solicitors, the Director of PublicProsecutions and police as well as the judges. At various points, the Review17
Page 1: TheCarloway ReviewReport andRecomme
Page 4 and 5: highly disruptive to the system gen
Page 9: LIST OF ABBREVIATIONS1995 Act The C
Page 13 and 14: 1.0 INTRODUCTIONBackground1.0.1 In
Page 15 and 16: a solicitor” prior to, and at any
Page 17: ole of the Group was to provide the
Page 21 and 22: Topics outwith the scope of the Rev
Page 23: Convention, describes the overall v
Page 26 and 27: Justice-Clerk (Inglis) stated to a
Page 28 and 29: arrest and liberty. There was nothi
Page 30 and 31: he/she does not do so, he/she risks
Page 32 and 33: e a matter of fact to be determined
Page 34 and 35: question the suspect until he/she b
Page 36 and 37: Committee’s report when read as a
Page 38 and 39: ultimate arbiter of constitutionali
Page 40 and 41: was cautioned, but not told that he
Page 42 and 43: at the whole circumstances of the c
Page 44 and 45: Cadder2.0.35 Mr Cadder was aged 16
Page 46 and 47: 2.0.39 Compelling reasons would hav
Page 48 and 49: 2.0.44 These guidelines were supers
Page 50 and 51: first required to have been “subs
Page 52 and 53: The long term implication of this,
Page 54 and 55: and of society as a whole. The purp
Page 56 and 57: giving rise to the reasonable suspi
Page 58 and 59: 3.0.15 The right of silence and the
Page 60 and 61: complacency must be avoided and the
Page 62 and 63: unlawful for a public authority to
Page 64 and 65: 4.0.3 In short, the Review has gras
Page 66 and 67: 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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5.2.32 The sheriffs principal and s
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jurisdictions where judicial or oth
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where they are uncertain of what th
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122
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The grounds for arrest and initial
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procurator fiscal consider that the
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the standard bail conditions and, i
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prudent, therefore, to constrain an
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to challenge any conditions before
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⎯ the exercise of the powers to l
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the nature and scope of police ques
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suspect the right of access to an a
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involving the suspect having inform
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6.1.3 It was essential that the Rev
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6.1.7 In Ireland 7 , a suspect in c
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lawyer at that stage, although the
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detained suspect must have prompt a
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interview. That is the general posi
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doubt remain dependent upon the sta
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of non-qualified persons posed a pr
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eing interviewed, or otherwise hind
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proportionate. If a conflict does o
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6.1.36 In England and Wales, resear
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context and returning to the genera
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Waiver6.1.41 The European Court has
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until shortly before his/her attend
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⎯ the right of access to a lawyer
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and whether there is sufficient evi
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the degree of suspicion, and to adv
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is detained 7 . Regardless of wheth
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at the diet of trial to exclude his
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police elect, for whatever reason,
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sense, are inadmissible if objected
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the suspect’s right to silence an
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and reliable, e.g. to clear up ambi
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“would have such an adverse effec
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6.2.38 As noted above, section 78 o
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ensure that reasonable lines of enq
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determining fairness in certain cas
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permission to do so. The applicatio
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hour maximum detention period, in a
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incrimination. It should be specifi
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accused’s first appearance on pet
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202
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Current law6.3.4 For the purposes o
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to a Hearing or prosecuted in court
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ight of access to the child, subjec
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Constabulary on the conditions in w
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he/she has a specific right to “p
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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
Page 414:
Annex GArticles (continued)Title Au
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