Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
permission to do so. The application should be in a standardised form, similarto that for a warrant, and should state the grounds for allowing questioningafter charge.6.2.51 The Review is concerned to ensure that this process can be conductedefficiently and smoothly. It is not in any person’s interest for there to be ahiatus while a sheriff is located and a paper application is presented in person.In the modern age, where formal and legal communications are routinelytransmitted electronically, it should be possible for the police to submit anapplication to the sheriff by e-mail or other remote means, and for the sheriffto respond in a similar fashion. This would be particularly important inrelation to the period between charge/report and the first appearance in courtwhen an application may well need to be made outwith normal court hours. Itshould be said, however, that, as seen in Chapter 5.2 – Period of Custody, thefigures from ACPOS suggest that the number of cases where questioning isstill required more than twelve hours after initial detention will be few. Times,however, may change.6.2.52 As any such application would be to allow further questioning during theaccused’s time spent in police custody, rather than to extend that period ofcustody itself, Article 5 considerations are not affected. There would be noneed to provide for the suspect to be able to make representations to the sheriffat the point when the warrant to question further is applied for by the police.Article 6 considerations of fairness would, of course, still apply.194
6.2.53 The decision to make such an application, and its preparation, should be theresponsibility of the police in the first instance, although there may clearly bea role for the procurator fiscal in serious or other defined cases. The extent ofthat role will vary according to the nature and complexity of the case and willbe a matter for guidelines from the Lord Advocate.6.2.54 An application to allow further questioning could also be made to the sheriff atthe accused’s first appearance at court following his/her charge, or atsubsequent points prior to the accused’s trial diet. It is to be expected that thecloser it is to that diet, the less likely it is that permission will be granted.Questioning so late may only be justified in exceptional circumstances, suchas the discovery of critical new evidence, where the accused’s account orexplanation of it may fundamentally alter or halt the progress of theprosecution.6.2.55 In the case of any application made to it at any stage, the court should have adiscretion to grant permission to question a person generally or only in relationto specific matters. It is not anticipated that the power to permit furtherquestioning would be used often, or even regularly, in summary cases but itwould probably be better were the rule to be a uniform one applicable to allcases. No doubt a sheriff would be reluctant to grant permission in a summarycase.6.2.56 The Review has, of course, considered alternative arrangements in this area.One obvious option was to permit the police themselves to extend the twelve195
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6.2.53 The decision to make such an application, <strong>and</strong> its preparation, should be theresponsibility of the police in the first instance, although there may clearly bea role for the procurator fiscal in serious or other defined cases. The extent ofthat role will vary according to the nature <strong>and</strong> complexity of the case <strong>and</strong> willbe a matter for guidelines from the Lord Advocate.6.2.54 An application to allow further questioning could also be made to the sheriff atthe accused’s first appearance at court following his/her charge, or atsubsequent points prior to the accused’s trial diet. It is to be expected that thecloser it is to that diet, the less likely it is that permission will be granted.Questioning so late may only be justified in exceptional circumstances, suchas the discovery of critical new evidence, where the accused’s account orexplanation of it may fundamentally alter or halt the progress of theprosecution.6.2.55 In the case of any application made to it at any stage, the court should have adiscretion to grant permission to question a person generally or only in relationto specific matters. It is not anticipated that the power to permit furtherquestioning would be used often, or even regularly, in summary cases but itwould probably be better were the rule to be a uniform one applicable to allcases. No doubt a sheriff would be reluctant to grant permission in a summarycase.6.2.56 The Review has, of course, considered alternative arrangements in this area.One obvious option was to permit the police themselves to extend the twelve195
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