Report and Recommendations - Scottish Government

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to listen to any advice given. If he/she refuses to do so, the interview canproceed and it will be a matter for the court to determine admissibility shouldobjection be taken.RecommendationsI therefore recommend that:⎯ for the purposes of arrest, detention and questioning, a child should bedefined as anyone under the age of 18 years. This means that thecurrent provisions concerning notification to a parent, carer or otherresponsible person and these persons having access to a child suspectshould be extended to all persons under 18 years of age;⎯ there should be a general statutory provision that, in taking anydecision regarding the arrest, detention, interview and charging of achild, whether by the police or the procurator fiscal, the best interestsof the child shall be a primary consideration;⎯ all children should have the right of access to a parent, carer orresponsible person if detained and, in any event, in advance of andduring any interview, provided that access can be achieved within areasonable time. The police should be able to delay or suspend thatright in exceptional circumstances;⎯ the general role of the parent, carer or responsible person should bedefined in statute as consisting of the provision of any moral supportand parental care and guidance to the child and to promote the child’sunderstanding of any communications between him/her, the policeand his/her solicitor;⎯ where the child suspect is under 16, he/she must be provided withaccess to a lawyer, and neither he/she, nor a parent, carer orresponsible person can waive that right;⎯ where the child is under 16, he/she must be provided with access to aparent, carer or responsible person, and he/she cannot waive thatright;⎯ where the child is 16 or 17 years old he/she may waive his/her right ofaccess to a lawyer but only with the agreement of a parent, carer orresponsible person; and222
⎯ where the child is 16 or 17 years old he/she may waive his/her right ofaccess to a parent, carer or responsible person. In such cases he/shemust be provided with access to a lawyer.223
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TheCarloway ReviewReport andRecomme
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highly disruptive to the system gen
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LIST OF ABBREVIATIONS1995 Act The C
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1.0 INTRODUCTIONBackground1.0.1 In
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a solicitor” prior to, and at any
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ole of the Group was to provide the
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of the points made at each of these
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Topics outwith the scope of the Rev
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Convention, describes the overall v
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Justice-Clerk (Inglis) stated to a
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arrest and liberty. There was nothi
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he/she does not do so, he/she risks
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e a matter of fact to be determined
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question the suspect until he/she b
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Committee’s report when read as a
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ultimate arbiter of constitutionali
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was cautioned, but not told that he
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at the whole circumstances of the c
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Cadder2.0.35 Mr Cadder was aged 16
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2.0.39 Compelling reasons would hav
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2.0.44 These guidelines were supers
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first required to have been “subs
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The long term implication of this,
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and of society as a whole. The purp
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giving rise to the reasonable suspi
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3.0.15 The right of silence and the
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complacency must be avoided and the
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unlawful for a public authority to
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4.0.3 In short, the Review has gras
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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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Page 178 and 179: at the diet of trial to exclude his
Page 180 and 181: police elect, for whatever reason,
Page 182 and 183: sense, are inadmissible if objected
Page 184 and 185: the suspect’s right to silence an
Page 186 and 187: and reliable, e.g. to clear up ambi
Page 188 and 189: “would have such an adverse effec
Page 190 and 191: 6.2.38 As noted above, section 78 o
Page 192 and 193: ensure that reasonable lines of enq
Page 194 and 195: determining fairness in certain cas
Page 196 and 197: permission to do so. The applicatio
Page 198 and 199: hour maximum detention period, in a
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Page 202 and 203: accused’s first appearance on pet
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Page 206 and 207: Current law6.3.4 For the purposes o
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Page 210 and 211: ight of access to the child, subjec
Page 212 and 213: Constabulary on the conditions in w
Page 214 and 215: he/she has a specific right to “p
Page 216 and 217: general thrust of what is said by t
Page 218 and 219: 6.3.21 In many jurisdictions 43 a c
Page 220 and 221: 6.3.25 This means that any child su
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Page 228 and 229: Current LawDefinition6.4.3 There is
Page 230 and 231: legislation 6 , both of which stres
Page 232 and 233: he/she 9 : “may not understand th
Page 234 and 235: specific statutory rules which make
Page 236 and 237: of his/her replies because of an ap
Page 238 and 239: 7.0.3 Throughout the course of the
Page 240 and 241: 7.0.8 The Review looked at the admi
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Page 244 and 245: which does not hold when there is a
Page 246 and 247: We have already directed that witne
Page 248 and 249: persuade the populace of the validi
Page 250 and 251: punishments than those exigible on
Page 252 and 253: tenets. Indeed, even the judiciary
Page 254 and 255: He concluded 50 :“Although two wi
Page 256 and 257: does then, in each individual case,
Page 258 and 259: will look at the evidence at trial
Page 260 and 261: accused as the perpetrator of the c
Page 262 and 263: 7.2.11 After what might be describe
Page 264 and 265: Practical Considerations7.2.15 How
Page 266 and 267: 7.2.18 It may seem immediately appa
Page 268 and 269: Distress7.2.21 Similar consideratio
Page 270 and 271: The Convention7.2.23 Article 6 of t
Page 272 and 273: 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
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Annex GArticles (continued)Title Au
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Report and Recommendations - Scottish Government

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