Report and Recommendations - Scottish Government

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7.1 CORROBORATION – ORIGINS AND DEVELOPMENT“corroborate v [f. L. corrōborāt - ppl. Stem of corrōborāre to strengthen, invigorate,f. cor- together, intensive + rōborāre to make strong…] To strengthen, makestrong” 1 .Origins – the need for certainty7.1.1 The requirement for corroboration in Scottish criminal practice wasestablished in some form by the time that the earliest of the InstitutionalWriters took up their pens to describe Scots criminal law in earnest 2 . At theend of the seventeenth century, Mackenzie 3 described the “singularity” ofwitnesses, as well as their “contrariety”, as insufficient for proof. Over time,the requirement came to be repeated in one form or another by all thesubsequent Writers, notably Hume in his classic statement 4 :“…no one shall in any case be convicted on the testimony of a singlewitness”.7.1.2 Hume explains:“No matter how trivial the offence, and how high so ever the creditand character of the witness, still our law is averse to rely on his singleword, in any inquiry which may affect the person, liberty, or fame ofhis neighbour; and rather than run the risk of such an error, a risk1 Oxford English Dictionary2 see generally Walker: A Legal History of Scotland Vol IV (The Seventeenth Century) chapter 16 pp605-63 Mackenzie: Laws and Customs of Scotland in matters Criminal (2nd (Seton) ed) 1699 (p 269) c 26para 14, referring to Susanna and the two elders (see Jackson : Essays in Jewish and ComparativeLegal History “Susanna and the History of Singular Witnesses; see Gordon: ‘At the Mouth of TwoWitnesses’: Some Comments on Corroboration in Hunter ed: Justice and Crime – Essays in Honour ofLord Emslie p 33)4 Hume ii at p 385241
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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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the degree of suspicion, and to adv
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is detained 7 . Regardless of wheth
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at the diet of trial to exclude his
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police elect, for whatever reason,
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sense, are inadmissible if objected
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the suspect’s right to silence an
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and reliable, e.g. to clear up ambi
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“would have such an adverse effec
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6.2.38 As noted above, section 78 o
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Page 206 and 207: Current law6.3.4 For the purposes o
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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
Page 222 and 223: police interviewing a child at his
Page 224 and 225: to listen to any advice given. If h
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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
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,
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Page 262 and 263: 7.2.11 After what might be describe
Page 264 and 265: Practical Considerations7.2.15 How
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Page 268 and 269: Distress7.2.21 Similar consideratio
Page 270 and 271: The Convention7.2.23 Article 6 of t
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Page 280 and 281: The more difficult issue, however,
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Page 284 and 285: 7.2.49 Corroboration is more likely
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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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