Report and Recommendations - Scottish Government

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Annex GBooks (continued)Title Author PublishedTorture and the Law of Proof Langbein 1977A practical Treatise on the Criminal MacDonald 1948Law of Scotland (5th edn)Laws and Customs of Scotland in Mackenzie 1699Matters Criminal (2nd ed)Revised version of Research Paper on MacPhail 1979The Law of Evidence of ScotlandStanding Accused: The Organization McConville et al 1994and Practices of Criminal DefenceLawyers in BritainEvidence McGrath 2005The Scottish Police : Powers and Mill 1944Duties (1944)Concise History of the Common Law Plucknett 1956A Guide to Human Rights in Scotland Reed and Murdoch 2008(2nd ed)6th (looseleaf) edition Renton & Brown 1996Institutions of the Law of Scotland Stair 1693Human Rights in CriminalTrechsel 2005ProceedingsPre-trial Detention in the European van Kalmthout et al 2009Union: An Analysis of MinimumStandardsLegal History of Scotland Vol IV (The Walker 2001Seventeenth Century)A Legal History of Scotland Vol V Walker 2001The Eighteenth CenturyEvidence (1st ed) Walker & Walker 1964Evidence (3rd ed) Walker & Walker 2009The Scottish Law of Evidence Wilkinson 1986The Origins and Development of theJury in Scotland, 23 Stair SocietyWillock 1966410
Annex GArticlesTitle Author Published SourceCorroboration of Evidence in Anon 1958 SLT (news) 137Scottish Criminal LawSelf-Incrimination inEuropean Human Rights lawAshworth 2008 Cardozo Law Review751– A Pregnant Pragmatism?“Corroboration”: in place of Ashworth 1992 Crim L R 1formalismThe Reluctant DutchResponse to SalduzBrants 2011 Edinburgh Law Review298Distress as corroboration of Chalmers 2004 SLT (news) 141Mens ReaA case for the abolition of Crowe 2011 SLT (news) 179corroboration in criminalcasesLegitimate Inference v Di Rollo 2008 SCL 151Illegitimate Speculation“the Admissibility of Answersto Police Questioning inScotland”"'At the mouth of twowitnesses': some comments oncorroboration",Gordon 1978 Glazebrook (ed):Reshaping the CriminalLawGordon 1993 R F Hunter (ed), Justiceand Crime: Essays inHonour of the RightHonourable The LordEmslieHodgson 1995 Crim LR 101Improving custodial legaladviceThe Memorials in Huggart… Jackson 1984 35 Stair Society 221and HoggThe Supreme Court Strikes Leverick 2011 Edinburgh Law ReviewBack287Evidence Macphail Stair MemorialEncyclopediaSupreme Error McCluskey 2011 Edinburgh Law Review276The Criminal Cases ReviewCommission: Establishing aWorkable Relationship withthe Court of AppealsNobles andSchiff2005 Crim LR 173411
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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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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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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 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 414: Annex GArticles (continued)Title Au
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