Report and Recommendations - Scottish Government

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Annex BPolice questioning after charge / report to the procurator fiscalCharged /Reported to theprocurator fiscalFurtherquestioningrequired prior to releaseon bail/undertaking orappearance atCustodyCourt?NoReleased onbail/undertakingto attend courtwithin 28 daysFurther policequestioningrequired?NoYesPoliceApplication tothe sheriffSheriffApprovesquestioning?NoYesFurther policequestioningYesSend warrantto SheriffHeld in custodyprior toappearance atCustody CourtCustody CourtAppearanceFurther policequestioningrequired?NoRemand incustody orrelease onbailTrial dietYesSheriffApproves toquestioning?YesNoFurther policequestioning withrestrictions set by thesheriffRequest madeto the Sheriff atthe CustodyCourtappearance.Further policequestioningrequired?YesProcurator fiscalapplication tothe sheriffNoSheriffApprovesquestioning?NoSheriff approvesquestioning?NoYesYesFurther policequestioning withrestrictions set by thesheriffFurther policequestioning384
Annex CPre Trial Detention in the European Union: An analysis of Minimum Standardsvan Kalmthout et alCountryAppearance before acourt/judge (hours)Decision by thecourt/judge to remand incustody/pretrialdetention (starting fromthe moment of theappearance) (hours)Austria 48 48Belgium 24Bulgaria 24 ---Cyprus 24 72Czech Republic 24 24Denmark 24 Without delay, maximumthree daysEstonia As soon as possible, maximum 48day after arrestFinland No later than noon on the third day Maximum four daysfrom arrestfrom arrestFrance 24 ---Germany As soon as possible, maximum 48day after arrestGreece 24 72Hungary 72Ireland24 (7 days)Italy 96Latvia 48Lithuania 48 ---Luxembourg 24 ---Malta 48Netherlands Three days and 15Poland 48 24Portugal 24 – 48Romania 24 24Slovakia 48 48 – 72Slovenia 48Spain 72 72Sweden By noon on third day after arrest Four days after arrestUnited Kingdom 24 ---As will be readily seen, the table, found on page 61 at paragraph 3.4, is only indicative, sincetwenty-four hours is not, at least in real time, the maximum period in any part of the UnitedKingdom for appearance in court.385
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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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ensure that reasonable lines of enq
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determining fairness in certain cas
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permission to do so. The applicatio
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hour maximum detention period, in a
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incrimination. It should be specifi
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accused’s first appearance on pet
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202
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Current law6.3.4 For the purposes o
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to a Hearing or prosecuted in court
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ight of access to the child, subjec
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Constabulary on the conditions in w
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he/she has a specific right to “p
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general thrust of what is said by t
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6.3.21 In many jurisdictions 43 a c
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6.3.25 This means that any child su
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police interviewing a child at his
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to listen to any advice given. If h
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224
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Current LawDefinition6.4.3 There is
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legislation 6 , both of which stres
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he/she 9 : “may not understand th
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specific statutory rules which make
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of his/her replies because of an ap
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7.0.3 Throughout the course of the
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7.0.8 The Review looked at the admi
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240
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which does not hold when there is a
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We have already directed that witne
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persuade the populace of the validi
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punishments than those exigible on
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tenets. Indeed, even the judiciary
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He concluded 50 :“Although two wi
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does then, in each individual case,
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will look at the evidence at trial
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accused as the perpetrator of the c
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7.2.11 After what might be describe
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Practical Considerations7.2.15 How
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7.2.18 It may seem immediately appa
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Distress7.2.21 Similar consideratio
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The Convention7.2.23 Article 6 of t
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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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Page 346 and 347: ConsiderationSolemn Appeals8.1.23 T
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Page 352 and 353: e achieved by amendment of section
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Page 358 and 359: Thus, where there is a change of la
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Page 370 and 371: References to the High Court8.2.25
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Page 374 and 375: 372Annex A
Page 376 and 377: Annex AFiscal) to assess these case
Page 378 and 379: Annex Aconviction, were the rule of
Page 380 and 381: 378Annex A
Page 382 and 383: Annex BRight of access to a lawyer
Page 384 and 385: Annex BRight of access to a lawyer
Page 388 and 389: 386Annex C
Page 390 and 391: 388Annex D
Page 392 and 393: Annex ELondon - 18 th -19 th May 20
Page 394 and 395: Annex EConsultative Meetings - cont
Page 396 and 397: Annex ESubgroup & individual meetin
Page 398 and 399: Annex ESubgroup & individual meetin
Page 400 and 401: Annex EConferences/SeminarsLord Car
Page 402 and 403: Annex FTable 2 - Organisations that
Page 404 and 405: Annex GUnited Kingdom Parliament -
Page 406 and 407: Annex GCases referred to in this Re
Page 408 and 409: Annex GGordon v HM Advocate 2010 SC
Page 410 and 411: Annex GParker v The Queen [2007] NT
Page 412 and 413: Annex GBooks (continued)Title Autho
Page 414: Annex GArticles (continued)Title Au
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Report and Recommendations - Scottish Government

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