Report and Recommendations - Scottish Government

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Annex GCases referred to in this ReportEuropean Court of Human Rights - (http://cmiskp.echr.coe.int/tkp197/search.asp)Adamkiewicz v Poland, 2 March 2010 (no 54729/00)Adetoro v United Kingdom, 20 April 2010 (no 46834/06)Aydin v Turkey (1997) 25 EHRR 251Beckles v United Kingdom (2003) 36 EHRR 162Boner v United Kingdom 1995 SCCR 1Brennan v United Kingdom (2002) 34 EHRR 18Brogan v United Kingdom (1989) 11 EHRR 117Buckley v United Kingdom (1996) 23 EHRR 101Condron v United Kingdom (2001) 31 EHRR 1Corigliano v Italy (1983) 5 EHRR 334Croissant v Germany (1992) 16 EHRR 135Dayanan v Turkey, 13 October 2009 (no 7377/03)Deweer v Belgium (1980) 2 EHRR 439Eckle v Germany (1982) 5 EHRR 1Egue v France (1988) DR 57, 47Edwards and Lewis v United Kingdom (2005) 40 EHRR 24Fox v United Kingdom (1991) 13 EHRR 157Funke v France (1993) 16 EHRR 297Gafgen v Germany (2011) 52 EHRR 1Handyside v United Kingdom (1976) 1 EHRR 737Hatton v United Kingdom, 8 July 2003 (no 36022/97)Heaney and McGuiness v Ireland (2001) 33 EHRR 12Jalloh v Germany (2007) 44 EHRR 32James v United Kingdom (1986) 8 EHRR 123Jones v United Kingdom (2003) 37 EHRR (CD) 269Kangasluoma v Finland, 20 January 2004 (no 48339/99)Mattocia v Italy 25 July 2000 (no 23969194)Murray v United Kingdom (1994) 19 EHRR 193Murray v United Kingdom (1996) 26 EHRR 29O’Halloran and Francis v United Kingdom (2008) 46 EHRR 21Panovits v Cyprus, 11 December 2008 (no 4268/04)Pishchalnikov v Russia, 24 September 2009 (no 7025/04)Quinn v Ireland, 21 December 2000 (unreported)Salduz v Turkey (2008) 49 EHRR 19Saunders v United Kingdom (1996) 23 EHRR 313Schiesser v Switzerland (1979) 2 EHRR 417Scoppola v Italy (No.2) (2010) 51 EHRR 12Shabelnick v Ukraine, 19 February 2009 (no 16404/03)Shannon v United Kingdom (2006) 42 EHRR 31SF v Switzerland (1994) DR 76Talat Tunk v Turkey, 27 March 2007 (no 2343/96)Tas v Turkey (2001) 33 EHRR 325Taxquet v Belgium, 16 November (no 926/5)Zaichenko v Russia, 18 February 2010 (no 39660/02)404
Annex GScottishAdamson v HM Advocate 2011 SCCR 271Addison v Mackinnon 1983 SCCR 52Advocate, HM v Airs 1975 JC 64Advocate, HM v Aitken 1926 JC 83Advocate, HM v Hardy 1938 JC 144Advocate, HM v Hay (1858) 3 Irv 181Advocate, HM v McLean 2010 SCCR 59Advocate, HM v Manuel 1958 JC 41Advocate, HM v P [2011] UKSC 44Advocate, HM v Penders 1996 JC 107Advocate, HM v Sinclair, unreported, High Court, 10 September 2007AJE v HM Advocate 2002 JC 215AK v HM Advocate [2011] HCJAC 52Akram v Her Majesty’s Advocate 2010 SCCR 30Aiton v HM Advocate 1987 JC 41Allan, Petnr 1993 SCCR 686Al Megrahi v HM Advocate 2002 JC 99Ambrose v Harris [2011] UKSC 43Anderson v HM Advocate 1974 SLT 239ANM v HM Advocate 2011 SCCR 47Beck Petitioner 2010 SCCR 222Bell v HM Advocate 1945 JC 61Birrell v HM Advocate 1993 SCCR 812Brown v Macpherson 1918 JC 3Brown v Stott 2001 SC (PC) 43, 2000 JC 328Buchan v HM Advocate 1993 SCCR 401Buchan v HM Advocate 1993 SCCR 1076CAB v HM Advocate 2009 SCCR 216Cadder v HM Advocate 2011 SC (UKSC) 13Campbell v Vannet 1998 SCCR 207Cannell v HM Advocate 2009 SCCR 207Carmichael v Armitage 1983 JC 8Chalmers v HM Advocate 1954 JC 66CJLS v HM Advocate 2009 JC 326Cockerell v HM Advocate 1943 JC 62Coubrough’s Extx v HM Advocate 2010 SCCR 473Cox v PF Aberdeen 2011 SCCR 265Daffurn v HM Advocate [2010] HCJAC 53Dempsey v HM Advocate1995 SCCR 431Dickson v HM Advocate 2001 JC 203Dodds v HM Advocate 2003 JC 8Donaghy v Normand 1991 SCCR 877Donald v Kelly 2004 SCCR 153Donaldson v HM Advocate 1983 SCCR 216Durant v Lockhart 1985 SCCR 72Fairley v Muir 1951 JC 56Fox v HM Advocate 1998 JC 94Fraser v HM Advocate 2011 SLT 515405
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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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power ought to be retained on the b
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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 404 and 405: Annex GUnited Kingdom Parliament -
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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