Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
and reliable, e.g. to clear up ambiguities or to clarify what the suspectsaid; and…(c) … there is sufficient evidence to provide a realistic prospect ofconviction”.The practical effect of this is that, prior to formal charge, the police areentitled to continue questioning, even if they had all along intended to chargethe suspect, because it is part of the investigative process and allows thesuspect to explain his/her position. That explanation could, at least in theory,cause the police to change their minds on whether to charge.6.2.31 A similar rule appears to apply elsewhere in common law countries on thesame basis as it does in Scotland; that the charge marks a change in statusfrom suspect to accused. But in New South Wales, such a person can be reinterviewedwhen that is necessary to prevent harm to a person, where newmatter emerges or where it might assist to recover property 32 .6.2.32 The distinction in status consequent upon police charge is less evident in otherjurisdictions, notably those in continental Europe. This may flow from thenotion that, even at the stage of interview, the trial has begun and the suspectis entitled to the fair trial protection of Article 6. As a generality, theConvention does not prohibit questioning after the point at which a sufficientcase for prosecution has been established, after police charge, or even after afirst or subsequent court appearance. The admission of statements elicited byquestions asked by the police or prosecutor after those stages does not infringe32 Police Instruction 37.14184
the right to a fair trial per se. It is common in other European jurisdictions forpolice questioning to be permissible up to the formal trial diet. Although insome countries with an inquisitorial system 33 the questioning of a suspect willbe by a judicial investigator rather than the police, the Review understandsthat in the Netherlands, for example, there is no prohibition on policequestioning up to and including the trial, and in Poland a person can beinterviewed by the police only once he/she has been charged.Admissibility6.2.33 In common law jurisdictions there tends to be a general rule about excludingevidence where it has been unfairly obtained. In England and Wales, the testfor admissibility generally is relevancy rather than how the evidence wasuncovered 34 . However, PACE 35 provides that, in relation to confessions, thecourt must exclude the evidence unless it is proved beyond reasonable doubt 36that the confession was not obtained:“(a) by oppression 37 of the person who made it; or(b) in consequence of anything said or done which was likely… torender [it] unreliable”.6.2.34 There is an additional wider provision whereby the court can exclude anyevidence if it 38 :33 e.g. Germany; see Professor Weigend’s chapter 7 in Bradley (ed): Criminal Procedure: A WorldwideStudy p 26034 see Blackstone 2011 para F2.8 referring to Kuruma, Son of Kaniu v The Queen [1955] AC 197, LordGoddard CJ at 20335 s 76(2)36 the lower standard of proof is employed where a co-accused seeks to adduce the confession; s 76A37 defined as including Article 3 infringements and threats of violence38 s 78185
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the right to a fair trial per se. It is common in other European jurisdictions forpolice questioning to be permissible up to the formal trial diet. Although insome countries with an inquisitorial system 33 the questioning of a suspect willbe by a judicial investigator rather than the police, the Review underst<strong>and</strong>sthat in the Netherl<strong>and</strong>s, for example, there is no prohibition on policequestioning up to <strong>and</strong> including the trial, <strong>and</strong> in Pol<strong>and</strong> a person can beinterviewed by the police only once he/she has been charged.Admissibility6.2.33 In common law jurisdictions there tends to be a general rule about excludingevidence where it has been unfairly obtained. In Engl<strong>and</strong> <strong>and</strong> Wales, the testfor admissibility generally is relevancy rather than how the evidence wasuncovered 34 . However, PACE 35 provides that, in relation to confessions, thecourt must exclude the evidence unless it is proved beyond reasonable doubt 36that the confession was not obtained:“(a) by oppression 37 of the person who made it; or(b) in consequence of anything said or done which was likely… torender [it] unreliable”.6.2.34 There is an additional wider provision whereby the court can exclude anyevidence if it 38 :33 e.g. Germany; see Professor Weigend’s chapter 7 in Bradley (ed): Criminal Procedure: A WorldwideStudy p 26034 see Blackstone 2011 para F2.8 referring to Kuruma, Son of Kaniu v The Queen [1955] AC 197, LordGoddard CJ at 20335 s 76(2)36 the lower st<strong>and</strong>ard of proof is employed where a co-accused seeks to adduce the confession; s 76A37 defined as including Article 3 infringements <strong>and</strong> threats of violence38 s 78185
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