Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
at the whole circumstances of the case. As recently as 2007, a decision of thePrivy Council to this effect had been endorsed by the European Court in acase 42 involving the requirement upon a registered keeper in England todisclose the name of the driver of his car under the Road Traffic legislation.This had followed an identical Privy Council decision on the samerequirement in Scotland 43 . The European Court rejected the submission thatthe right to remain silent and the privilege not to incriminate oneself wereabsolute rights. It said 44 :“... While the right to a fair trial under Article 6 is an unqualified right,what constitutes a fair trial cannot be the subject of a single unvaryingrule but must depend on the circumstances of the particular case. Thiswas confirmed in the specific context of the right to remain silent inthe case of Heaney and McGuinness 45 and, more recently, in theCourt's Jalloh judgment 46 , in which the Court identified the factors towhich it would have regard in determining whether the applicant'sprivilege against self-incrimination had been violated.In the light of the principles contained in its Jalloh judgment, and inorder to determine whether the essence of the applicants' right toremain silent and privilege against self-incrimination was infringed,the Court will focus on the nature and degree of compulsion used toobtain the evidence, the existence of any relevant safeguards in theprocedure, and the use to which any material so obtained was put”.2.0.33 The Lord Justice General (Hamilton) relied upon this dicta in his opinion inMcLean and went on to say 47 :42 O’Halloran and Francis v United Kingdom (2008) 46 EHRR 2143 i.e. in Brown v Stott 2001 SC (PC) 43, on which Lord Hope sat, reversing the High Court chaired bythe LJG (Rodger) 2000 JC 32844 see O’Halloran (supra) at paras 53 and 5545 Heaney and McGuiness v Ireland (2001) 33 EHRR 1246 Jalloh v Germany (2007) 44 EHRR 3247 para 2640
“Accordingly, provided that we are satisfied that the guaranteesotherwise available under the Scottish system are sufficient to secure afair trial for a person who, while detained, is interviewed by policeofficers without access to a lawyer and at whose trial his responses arerelied on by the prosecution, a negative answer to the modifiedadditional question [of whether the Lord Advocate would be acting inbreach of the accused’s Article 6 rights] would not conflict with thedecision and reasoning of the court in Salduz. We are so satisfied”.2.0.34 The safeguards were then detailed as follows 48 :(1) a suspect is cautioned and told what the nature of the crime is;(2) a person arrested and charged has the right to have a solicitor informedof what has happened and to a subsequent interview with him before hisappearance in court. He cannot thereafter be questioned by the police;(3) a detainee is also cautioned;(4) an interview with a detainee is audio, and often video, recorded;(5) a detainee may be questioned persistently and robustly but cannot becoerced or otherwise treated unfairly;(6) such unfairness will render any incriminating answers inadmissible;(7) fairness can be determined in advance of trial, or at a trial, by the “trialwithin a trial” procedure in which the onus is on the crown;(8) if admitted, a jury in solemn cases can take into account thecircumstances in assessing the weight to be given to the answers;(9) a suspect is entitled to decline to answer any of the questions (other thanthe formal questions) put by the police;(10) the jury is directed that they may not draw any adverse inferences froman accused’s silence;(11) a person cannot be convicted on the basis of his admission alone, thererequires to be corroboration;(12) a person may not be detained for more than six hours;(13) although a detainee has no right to have access to a lawyer before beingquestioned, he is entitled to have the fact of his detention and of theplace where he is detained intimated without unreasonable delay to asolicitor and to one other person reasonably named by him;(14) the police may, if they think fit, allow a lawyer or other person to bepresent during the detention; and(15) this discretion is likely to be exercised where the detainee is perceived tobe a vulnerable person.48 at para 2741
- Page 1: TheCarloway ReviewReport andRecomme
- Page 4 and 5: highly disruptive to the system gen
- Page 9: LIST OF ABBREVIATIONS1995 Act The C
- Page 13 and 14: 1.0 INTRODUCTIONBackground1.0.1 In
- Page 15 and 16: a solicitor” prior to, and at any
- Page 17 and 18: ole of the Group was to provide the
- Page 19 and 20: of the points made at each of these
- Page 21 and 22: Topics outwith the scope of the Rev
- Page 23: Convention, describes the overall v
- Page 26 and 27: Justice-Clerk (Inglis) stated to a
- Page 28 and 29: arrest and liberty. There was nothi
- Page 30 and 31: he/she does not do so, he/she risks
- Page 32 and 33: e a matter of fact to be determined
- Page 34 and 35: question the suspect until he/she b
- Page 36 and 37: Committee’s report when read as a
- Page 38 and 39: ultimate arbiter of constitutionali
- Page 40 and 41: was cautioned, but not told that he
- 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
- Page 56 and 57: giving rise to the reasonable suspi
- 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
- Page 70 and 71: operates in a context where the hum
- Page 73 and 74: 5.0 CUSTODY CHAPTERS OVERVIEW5.0.1
- Page 75 and 76: next step, as quickly as possible.
- Page 77 and 78: 5.1 ARREST AND DETENTIONIntroductio
- Page 79 and 80: 5.1.6 The Review has considered whe
- Page 81 and 82: Arrest without warrant5.1.9 A polic
- 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
- Page 89 and 90: interview. The Court stated that th
- Page 91 and 92: of the suspect and subsequent crimi
“Accordingly, provided that we are satisfied that the guaranteesotherwise available under the <strong>Scottish</strong> system are sufficient to secure afair trial for a person who, while detained, is interviewed by policeofficers without access to a lawyer <strong>and</strong> at whose trial his responses arerelied on by the prosecution, a negative answer to the modifiedadditional question [of whether the Lord Advocate would be acting inbreach of the accused’s Article 6 rights] would not conflict with thedecision <strong>and</strong> reasoning of the court in Salduz. We are so satisfied”.2.0.34 The safeguards were then detailed as follows 48 :(1) a suspect is cautioned <strong>and</strong> told what the nature of the crime is;(2) a person arrested <strong>and</strong> charged has the right to have a solicitor informedof what has happened <strong>and</strong> to a subsequent interview with him before hisappearance in court. He cannot thereafter be questioned by the police;(3) a detainee is also cautioned;(4) an interview with a detainee is audio, <strong>and</strong> often video, recorded;(5) a detainee may be questioned persistently <strong>and</strong> robustly but cannot becoerced or otherwise treated unfairly;(6) such unfairness will render any incriminating answers inadmissible;(7) fairness can be determined in advance of trial, or at a trial, by the “trialwithin a trial” procedure in which the onus is on the crown;(8) if admitted, a jury in solemn cases can take into account thecircumstances in assessing the weight to be given to the answers;(9) a suspect is entitled to decline to answer any of the questions (other thanthe formal questions) put by the police;(10) the jury is directed that they may not draw any adverse inferences froman accused’s silence;(11) a person cannot be convicted on the basis of his admission alone, thererequires to be corroboration;(12) a person may not be detained for more than six hours;(13) although a detainee has no right to have access to a lawyer before beingquestioned, he is entitled to have the fact of his detention <strong>and</strong> of theplace where he is detained intimated without unreasonable delay to asolicitor <strong>and</strong> to one other person reasonably named by him;(14) the police may, if they think fit, allow a lawyer or other person to bepresent during the detention; <strong>and</strong>(15) this discretion is likely to be exercised where the detainee is perceived tobe a vulnerable person.48 at para 2741
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