Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
general thrust of what is said by the arresting officer and during his/herquestioning by the police 35 . The Court has stated that, in the case of children,a waiver 36 :“can only be accepted where it is expressed in an unequivocal mannerafter the authorities have taken all reasonable steps to ensure that he orshe is fully aware of his rights of defence and can appreciate, as far aspossible, the consequence of his conduct”.6.3.18 This is all very well in theory, but practical difficulties arise as soon as rightsto express a view, and for that view to be taken into account, are contrastedand compared with the right to silence and the privilege against selfincrimination.Other jurisdictions6.3.19 In some jurisdictions, including for example Finland, a lawyer will beappointed automatically for a suspect who is under the age of 18 years and itmay not be possible for this entitlement to be waived. However, manyjurisdictions do not have specific statutory provisions regarding a childsuspect’s right of access to a lawyer. In Canada, in contesting theadmissibility of interview evidence, there is just a general onus on the detaineeto demonstrate that he/she has not understood the right to retain counsel. Insome jurisdictions it is possible for a child suspect’s parent to exercise theright of access to a lawyer on his/her behalf. In England and Wales, although35 Panovits v Cyprus (supra)36 ibid para 68214
PACE does not provide a different right to legal advice for child suspects,Code C provides 37 :“In the case of a juvenile, an appropriate adult should consider whetherlegal advice from a solicitor is required. If the juvenile indicates thatthey don’t not want legal advice, the appropriate adult has the right toask for a solicitor to attend if this would be in the best interests of theperson. However, the detained person cannot be forced to see thesolicitor if he is adamant that he does not wish to do so”.6.3.20 In Ireland, if the child or his/her parent or guardian asks for a solicitor, thechild must not be asked to make a statement until a reasonable time for theattendance of the solicitor has elapsed. Ireland has adopted much of thewording of the International instruments into its domestic law by stipulatingthat, in any investigation of offences committed by children, the police requireto act with due respect to the child’s personal rights 38 . The child’s parents orcarers require to be informed and asked to attend at the police station. If theycannot, or will not, attend within a reasonable time, the child must be advisedthat he/she can have another relative or other adult informed and attend 39 .There are provisions relative to either the child or the parent or other adultrequesting legal advice 40 . A child cannot normally be questioned without thepresence of a parent or other adult 41 . This is also the case in England andWales 42 .37 para 6.5A38 Children Act 2001 s 5639 ss 57-5840 s 6041 s 6142 PACE CODE C para 11.15215
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general thrust of what is said by the arresting officer <strong>and</strong> during his/herquestioning by the police 35 . The Court has stated that, in the case of children,a waiver 36 :“can only be accepted where it is expressed in an unequivocal mannerafter the authorities have taken all reasonable steps to ensure that he orshe is fully aware of his rights of defence <strong>and</strong> can appreciate, as far aspossible, the consequence of his conduct”.6.3.18 This is all very well in theory, but practical difficulties arise as soon as rightsto express a view, <strong>and</strong> for that view to be taken into account, are contrasted<strong>and</strong> compared with the right to silence <strong>and</strong> the privilege against selfincrimination.Other jurisdictions6.3.19 In some jurisdictions, including for example Finl<strong>and</strong>, a lawyer will beappointed automatically for a suspect who is under the age of 18 years <strong>and</strong> itmay not be possible for this entitlement to be waived. However, manyjurisdictions do not have specific statutory provisions regarding a childsuspect’s right of access to a lawyer. In Canada, in contesting theadmissibility of interview evidence, there is just a general onus on the detaineeto demonstrate that he/she has not understood the right to retain counsel. Insome jurisdictions it is possible for a child suspect’s parent to exercise theright of access to a lawyer on his/her behalf. In Engl<strong>and</strong> <strong>and</strong> Wales, although35 Panovits v Cyprus (supra)36 ibid para 68214
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