Report and Recommendations - Scottish Government

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Annex GUnited Kingdom Parliament – UK-wide applicationContempt of Court Act 1981Equality Act 2010Human Rights Act 1998Misuse of Drugs Act 1971Road Traffic Act 1988Road Traffic Regulation Act 1984United Kingdom Parliament – Applying wholly or mainly to ScotlandAct of Adjournal (Criminal Procedure Rules) 1996Age of Majority (Scotland) Act 1969Children (Scotland) Act 1995Civic Government (Scotland) Act 1982Civil Evidence (Scotland) Act 1988Crime and Punishment (Scotland) Act 1997Criminal Justice (Scotland) Act 1980Criminal Law (Consolidation) (Scotland) Act 1995Criminal Procedure (Scotland) Act 1887Criminal Procedure (Scotland) Act 1995Law Reform (Miscellaneous Provisions) (Scotland) Act 1968Legal Aid (Scotland) Act 1986Matrimonial Homes (Family Protection) (Scotland) Act 1981Requirements of Writing (Scotland) Act 1995Scotland Act 1998Sheriff Courts (Scotland) Act 1971United Kingdom Parliament – Applying wholly or mainly to England and WalesCosts in Criminal Cases (General) Regulations 1986Criminal Appeal Act 1968Criminal Appeal Act 1995Criminal Justice and Public Order Act 1994Criminal Law Amendment Act 1885Mental Health Act 1983Perjury Act 1911Police and Criminal Evidence Act 1984 (PACE)Prosecution of Offences Act 1985402
Annex GDirectives, Reports and Guidance⎯ ACPOS Manual of Guidance on Solicitor Access⎯ ACPOS Solicitor Access Data Report, 23 June 2011⎯ Canadian Charter of Rights and Freedoms⎯ Council of Europe: “Child Friendly Justice” (November 2010)⎯ Criminal Procedure in Scotland (Second report) Thomson Committee⎯ Effective Criminal Defence in Europe (2010)⎯ European Union draft Directive on the Right of Access to a Lawyer in CriminalProceedings (2011) Com 326/3⎯ European Union draft Directive on the Rights to information in criminal proceedings (2010)Com 329/3⎯ European Union draft Directive on establishing minimum standards on the rights etc ofvictims of Crime⎯ Guidance On Interviewing Child Witnesses In Scotland, Scottish Executive 2003⎯ HM Inspectorate of Constabulary: Report on the Care of Arrested and Detained Children(June 2008)⎯ Identification Procedure under Scottish Criminal Law (the Bryden Report) Cmnd 7096(1978)⎯ JUSTICE: Giving Legal Advice at Police Stations: Practical Pointers (November 2010)⎯ Law Commission Report: Corroboration of Evidence in Criminal Trials (Cmnd 1620)(1991)⎯ Law Society of England and Wales response to the Ministry of Justice of England andWales Discussion paper on the European Commission proposal for a Directive on the rightof access to a lawyer in criminal proceedings and on the right to communicate upon arrest⎯ Lord Advocate’s Guidelines: “Reporting of Offences Committed by Children” (April 2006)⎯ McInnes Report (The Summary Justice Review Committee)⎯ New South Wales Law Reform Commission Report No 95, 2000⎯ Parliamentary Joint Committee on Human Rights (HC paper 40-1)⎯ Report by the Committee on Criminal Appeal and Miscarriages of Justice ProceduresCmnd 3245 (ISBN 0-10-132452-9) “the Sutherland Committee”⎯ Report of the Committee on Sexual Offences Against Children and Youths published inCanada (1984)⎯ Royal Commission on Criminal Justice Study: Custodial Advice and the Right to Silence(1993)⎯ Scottish Government Guidance on Appropriate Adults Services in Scotland⎯ Scottish Law Commission: “Proposals for Reform of the Law of Evidence Relating toCorroboration”⎯ Scottish Law Commission 100th Report⎯ Scottish Law Commission Report No 149 (1995)⎯ The Scottish Law Commission “Similar Fact Evidence and the Moorov Doctrine”⎯ The Scottish Law Commission Report on Rape and other Sexual Offences⎯ United Nations Convention on the Rights of Persons With Disabilities⎯ United Nations Convention on the Rights of the Child⎯ United Nations Rules for the Protection of Juveniles Deprived of their Liberty (the “HavanaRules” 1990)⎯ United Nations Standard Minimum Rules of the Administration of Juvenile Justice (the“Beijing Rules 1985)403
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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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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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Page 358 and 359: Thus, where there is a change of la
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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 386 and 387: Annex BPolice questioning after cha
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 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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