Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
ensure that reasonable lines of enquiry are pursued. This much is relativelyclear and there is no need to define the purpose of questioning in legislation.6.2.43 In these circumstances there should be no requirement for the initial policeinvestigation, including the questioning of a suspect, to cease once there is abare sufficiency of evidence entitling the police to charge the suspect. Itshould rather be focussed on obtaining as much evidence as is reasonablypossible at this preliminary stage, including any explanations which a suspectmay be willing to advance.Cessation of questioning6.2.44 The nature of police questioning ought to be sufficiently regulated by theoverall test of Article 6 fairness. The Review is conscious that there areoccasions when, at the beginning of an interview, a suspect may state thathe/she is not going to respond to any police questions. However, after a fewquestions, the suspect appears to change his/her mind and begins to talk. TheReview does not regard this as automatically unfair or that there shouldtherefore be a rule that an early indication of reluctance to answer should beacknowledged and no further questions should follow. Whether the actionstaken by the police amount to an infringement of the suspect’s right of silenceor the privilege against self incrimination will depend upon the circumstancesof each case as gauged primarily by the judge at first instance. Obviously, ifthe police choose to continue questioning in the face of a repeated refusal toanswer, the potential for unfairness becomes more acute.190
6.2.45 The proposed regime for custody is one in which the police would initially bepermitted only twelve hours after the initial detention of a suspect to carry outinvestigations, including questioning, sufficient for them to decide whether tocharge the suspect or at least to report him/her in custody to the procuratorfiscal for consideration of charge. In general, and subject to the furtherproposals below, no further questioning would be permitted after the expiry ofthat period or the point at which the suspect is actually charged. The suspect,when in custody, would be brought to court on the next lawful court day aftercharge. This regime is primarily for the protection of Article 5, and notArticle 6, rights. However, it does have an impact on Article 6 fairness. In thecontext of a normal police interview in an ordinary case, the Review considersthat any court would view questioning which lasted, in total, for much inexcess of an hour with some concern. However, there is no imperative tointroduce restrictive rules in that regard.6.2.46 The rule of the common law, that prohibited the questioning of a suspect aftercharge, developed as a further aspect of the court regarding the suspect asbecoming an accused person, thus coming under its protection, at least fromthe point at which he/she was 51 , or ought to have been 52 , charged. However,in a human rights based system, there is no particular reason why there shouldbe such an absolute prohibition, provided that the suspect’s rights continue tobe adequately and effectively protected. Furthermore, if the reasoning ofCadder and the Convention jurisprudence is followed, it is not the point ofcharge which is important, even if it may have some significance in51 Johnstone v HM Advocate (supra)52 Chalmers191
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6.2.45 The proposed regime for custody is one in which the police would initially bepermitted only twelve hours after the initial detention of a suspect to carry outinvestigations, including questioning, sufficient for them to decide whether tocharge the suspect or at least to report him/her in custody to the procuratorfiscal for consideration of charge. In general, <strong>and</strong> subject to the furtherproposals below, no further questioning would be permitted after the expiry ofthat period or the point at which the suspect is actually charged. The suspect,when in custody, would be brought to court on the next lawful court day aftercharge. This regime is primarily for the protection of Article 5, <strong>and</strong> notArticle 6, rights. However, it does have an impact on Article 6 fairness. In thecontext of a normal police interview in an ordinary case, the Review considersthat any court would view questioning which lasted, in total, for much inexcess of an hour with some concern. However, there is no imperative tointroduce restrictive rules in that regard.6.2.46 The rule of the common law, that prohibited the questioning of a suspect aftercharge, developed as a further aspect of the court regarding the suspect asbecoming an accused person, thus coming under its protection, at least fromthe point at which he/she was 51 , or ought to have been 52 , charged. However,in a human rights based system, there is no particular reason why there shouldbe such an absolute prohibition, provided that the suspect’s rights continue tobe adequately <strong>and</strong> effectively protected. Furthermore, if the reasoning ofCadder <strong>and</strong> the Convention jurisprudence is followed, it is not the point ofcharge which is important, even if it may have some significance in51 Johnstone v HM Advocate (supra)52 Chalmers191
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