Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
first required to have been “substantially affected” by the investigation 64 . Thisoccurred if “the suspicion against him is being seriously investigated and theprosecution case compiled” 65 . Salduz had not stated that a person who had notbeen taken into custody had a right of access to a lawyer. In cases where thepolice were merely asking preliminary questions “in order to decide whataction to take”, it was unlikely that the right would arise until it could be saidthat the police had reason to think that an incriminating answer “may well”have been elicited 66 . However, if the suspect had been restrained in some wayand “there was a significant curtailment of his freedom of action”, he had to beregarded as if he were in police custody and required to be afforded the rightof access to a lawyer 67 . The circumstances had to be “sufficiently coercive”for any incriminatory answers to be regarded as inadmissible. Put in adifferent manner, a “proper understanding” of the jurisprudence in this areafrom the European and other courts was that “the right to have access to alawyer emerges at the point when the suspect is deprived of his liberty ofmovement, to any material extent, by the investigating authorities and is to bequestioned by them” 68 . The approach of the United Kingdom Supreme Courtis such that it is likely that there will now be cases which raise the issue ofexactly when a person has been put in a “sufficiently coercive” position or“deprived of his liberty of movement” short of arrest or detention. There,however, for the moment, the law rests.64 Lord Hope, with whom Lords Brown and Dyson agreed, at para 62, following Deweer v Belgium(1980) 2 EHRR 439 at para 46 and Eckle v Germany (1982) 5 EHRR 1 at para 7365 Emphasis added, Lord Hope at para 62 following Shabelnick v Ukraine 19 February 2009 (no16404/03) and Corigliano v Italy (1982) 5 EHRR 334 at para 3466 Lord Hope at paras 64, 65 and 7067 Lord Hope at para 7168 Lord Clarke at para 115, quoting from Miranda v State of Arizona (1966) 384 US 43648
3.0 CONVENTION CONSIDERATIONSIntroduction3.0.1 With the 2010 Act in place as a temporary solution, the Review’s task hasbeen to carry out a more thoroughgoing examination of the issues raised byCadder and now Ambrose. One of the criticisms that could be drawn from theopinions in Cadder was that Scotland had in some sense failed to keep up withmodern thinking and practice in relation to the protection of suspects 1 . ThisReview recognises that Scots law has, for well over a century, had a uniquesystem that guarded against the unnecessary deprivation of a person’s libertyand enshrined, in its own way, the concept of a right to a fair trial. Thissystem, in large measure, had been highly protective of the individual. Butcriminal justice continues to evolve. The context within which the police andcourts operate has changed significantly since the Thomson Committee andthe legislation that followed its report. It is the Review’s responsibility topoint the way forward to a new system that will not only be able to meet therequirements of modern society, but will also provide as much resilience aspossible against unexpected future developments in the Conventionjurisprudence. It acknowledges, of course, that there can never be anyguarantee in that regard.3.0.2 The most obvious change in the legal environment within which the criminaljustice system must operate has been the incorporation of the Convention.1 e.g. Lord Hope at para 4 “It is remarkable that, until quite recently, nobody thought that there wasanything wrong…” and at para 51 his comments on the Thomson Committee and subsequentlegislation49
- 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 42 and 43: at the whole circumstances of the c
- 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 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
- Page 93 and 94: appropriate ground for both arrest
- Page 95 and 96: justified by the evidence gathered
- Page 97: (d) may destroy evidence, interfere
3.0 CONVENTION CONSIDERATIONSIntroduction3.0.1 With the 2010 Act in place as a temporary solution, the Review’s task hasbeen to carry out a more thoroughgoing examination of the issues raised byCadder <strong>and</strong> now Ambrose. One of the criticisms that could be drawn from theopinions in Cadder was that Scotl<strong>and</strong> had in some sense failed to keep up withmodern thinking <strong>and</strong> practice in relation to the protection of suspects 1 . ThisReview recognises that Scots law has, for well over a century, had a uniquesystem that guarded against the unnecessary deprivation of a person’s liberty<strong>and</strong> enshrined, in its own way, the concept of a right to a fair trial. Thissystem, in large measure, had been highly protective of the individual. Butcriminal justice continues to evolve. The context within which the police <strong>and</strong>courts operate has changed significantly since the Thomson Committee <strong>and</strong>the legislation that followed its report. It is the Review’s responsibility topoint the way forward to a new system that will not only be able to meet therequirements of modern society, but will also provide as much resilience aspossible against unexpected future developments in the Conventionjurisprudence. It acknowledges, of course, that there can never be anyguarantee in that regard.3.0.2 The most obvious change in the legal environment within which the criminaljustice system must operate has been the incorporation of the Convention.1 e.g. Lord Hope at para 4 “It is remarkable that, until quite recently, nobody thought that there wasanything wrong…” <strong>and</strong> at para 51 his comments on the Thomson Committee <strong>and</strong> subsequentlegislation49
Change language