Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
ultimate arbiter of constitutionality within the United Kingdom devolutionsettlement, the United Kingdom Supreme Court (previously the JudicialCommittee of the Privy Council) was given an appellate jurisdiction to hearcases where it was alleged that an act of a Scottish Minister was incompatiblewith the Convention, thereby breaching the requirement in section 57(2) andrendering it ultra vires and thus illegal.2.0.24 The definition of “Scottish Ministers” includes the Lord Advocate. This isparticularly significant. It has been interpreted in such a way as to mean thatany criminal prosecution undertaken by the Crown, such as a decision of aprocurator fiscal depute in a summary trial in the Sheriff Court, is an act of aScottish Minister and thus directly subject to the requirement of Conventioncompatibility. With the incorporation of the Article 6 right to a fair trial, andthe interpretation of “trial” as starting from the point at which a personbecomes suspected of an offence, any “unfairness” by the Crown in pursuingany prosecution, including the leading of evidence obtained unfairly in the pretrial period, became challengeable by means of a “devolution minute” lodgedin the trial process and thus susceptible to United Kingdom Supreme Courtreview. This was the reasoning of the Privy Council in Montgomery 35 , adecision which proceeded upon a concession by the Lord Advocate 36 , eventhough it is clear that this was not the thinking of either the Government or theParliament at the time when the legislation was formulated and enacted.35 Montgomery v HM Advocate 2001 SC (PC) 1 at 2136 see Lord Hope at 11; Leave had been granted to appeal to the Privy Council by the High Courtchaired by the LJG (Rodger)36
2.0.25 The common law concept of fairness, which governs the admissibility ofevidence became, and is now, overlain by the requirement of Article 6 fairness.Scottish courts must therefore consider how best to apply both the commonlaw test and the Article 6 right in assessing the legality of pre trial and trialprocedures and, in particular, the admissibility of answers given by suspectsduring police interviews.2.0.26 The application of Article 6 fairness was not regarded by the Scottish courts asinvolving a fixed set of absolute rights. It was understood that the fairness of atrial in Article 6 terms was to be assessed by looking at the trial process as awhole and not just at what might have occurred in the police station. In thisarea, however, the Convention jurisprudence evolved significantly. It is anunderstanding of that jurisprudence and thus what rights under Article 6 areabsolute, as distinct from implied but not necessarily applicable in allcircumstances, that lies at the core of Cadder and the European Court decisionthat prompted it.Salduz2.0.27 The starting point in the post Devolution era for looking at the absolute orqualified nature of Article 6 rights is the decision of the European Court inSalduz in 2008. Salduz involved a 17 year old arrested at 10.15 pm by theanti-terrorism branch of the Izmir Security Directorate on suspicion of takingpart in a demonstration in favour of the illegal PKK (Kurdish proindependence party) and hanging an illegal banner from a bridge. Mr Salduz37
- Page 1: TheCarloway ReviewReport andRecomme
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- Page 13 and 14: 1.0 INTRODUCTIONBackground1.0.1 In
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- Page 28 and 29: arrest and liberty. There was nothi
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- Page 32 and 33: e a matter of fact to be determined
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- Page 36 and 37: Committee’s report when read as a
- Page 40 and 41: was cautioned, but not told that he
- Page 42 and 43: at the whole circumstances of the c
- Page 44 and 45: Cadder2.0.35 Mr Cadder was aged 16
- Page 46 and 47: 2.0.39 Compelling reasons would hav
- Page 48 and 49: 2.0.44 These guidelines were supers
- Page 50 and 51: first required to have been “subs
- Page 52 and 53: The long term implication of this,
- Page 54 and 55: and of society as a whole. The purp
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- Page 58 and 59: 3.0.15 The right of silence and the
- Page 60 and 61: complacency must be avoided and the
- Page 62 and 63: unlawful for a public authority to
- Page 64 and 65: 4.0.3 In short, the Review has gras
- Page 66 and 67: The System4.0.7 The recommendations
- Page 68 and 69: window during which these investiga
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- Page 73 and 74: 5.0 CUSTODY CHAPTERS OVERVIEW5.0.1
- Page 75 and 76: next step, as quickly as possible.
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- Page 83 and 84: 5.1.12 It was because of this lack
- Page 85 and 86: 5.1.15 Reasonable suspicion permits
- Page 87 and 88: arrest, without warrant, any person
ultimate arbiter of constitutionality within the United Kingdom devolutionsettlement, the United Kingdom Supreme Court (previously the JudicialCommittee of the Privy Council) was given an appellate jurisdiction to hearcases where it was alleged that an act of a <strong>Scottish</strong> Minister was incompatiblewith the Convention, thereby breaching the requirement in section 57(2) <strong>and</strong>rendering it ultra vires <strong>and</strong> thus illegal.2.0.24 The definition of “<strong>Scottish</strong> Ministers” includes the Lord Advocate. This isparticularly significant. It has been interpreted in such a way as to mean thatany criminal prosecution undertaken by the Crown, such as a decision of aprocurator fiscal depute in a summary trial in the Sheriff Court, is an act of a<strong>Scottish</strong> Minister <strong>and</strong> thus directly subject to the requirement of Conventioncompatibility. With the incorporation of the Article 6 right to a fair trial, <strong>and</strong>the interpretation of “trial” as starting from the point at which a personbecomes suspected of an offence, any “unfairness” by the Crown in pursuingany prosecution, including the leading of evidence obtained unfairly in the pretrial period, became challengeable by means of a “devolution minute” lodgedin the trial process <strong>and</strong> thus susceptible to United Kingdom Supreme Courtreview. This was the reasoning of the Privy Council in Montgomery 35 , adecision which proceeded upon a concession by the Lord Advocate 36 , eventhough it is clear that this was not the thinking of either the <strong>Government</strong> or theParliament at the time when the legislation was formulated <strong>and</strong> enacted.35 Montgomery v HM Advocate 2001 SC (PC) 1 at 2136 see Lord Hope at 11; Leave had been granted to appeal to the Privy Council by the High Courtchaired by the LJG (Rodger)36
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