Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
and of society as a whole. The purpose of Article 5 is accordingly not only toassert the fundamental right to liberty, but also to set out the limited conditionsunder which interferences with this right can be made.3.0.7 The Convention uses both the words “arrest” and “detention”. It seems that“arrest” refers to the act of immediate deprivation of liberty and “detention” tothe period thereafter when the prisoner is kept in custody (usually at a policestation). The test for the legitimacy of both is the same. A person may bearrested or detained “on reasonable suspicion of having committed an offence”.Just what “reasonable suspicion” is varies according to circumstances. Itexists when there is information which would satisfy an objective observerthat the suspect concerned may have committed the offence 2 . There is noexpress obligation upon the police under this Article 3 to charge a suspect atthe point of arrest or at the stage of his detention at the police station, althoughthe suspect must be told of the reason for his/her arrest and subsequent, if any,detention.3.0.8 It is clear from Article 5 that the only legitimate purpose of arrest anddetention is to bring the suspect before “the competent legal authority”. TheReview takes this to mean a court or judge in some form 4 , i.e. an independentjudicial authority. If the motive for an arrest and/or detention were simply thatthe suspect could be questioned, the subsequent custody for that purpose could,it might readily have been argued, have amounted to a violation of that2 Fox v United Kingdom (1991) 13 EHRR 157 at para 323 Article 6 (infra) of course also has to be considered4 Schiesser v Switzerland, (1979) 2 EHRR 417 at para 2952
suspect’s right to liberty. However, in two cases against the United Kingdom 5dealing with the arrest of terrorist suspects, the Court adopted an interestingapproach to the situation where suspects had been arrested, questioned andreleased without charge. This was essentially that the process adopted, whichhad questioning as a principal purpose, was still to bring the suspect before thecourt, depending upon the result of the interrogation. The interrogation wasproperly seen as incidental to that process. The approach taken in the first ofthese cases suggests that, as long as what is envisaged by the police isintended, if successful, to end in a court appearance, arrest and detention,which also have in mind the questioning of the suspect meantime, areConvention compliant.3.0.9 Subject to a suspect being advised of his/her rights and these rights being,where required, complied with, there is no express bar on questioning or anyapparent limit to the nature and extent of that questioning. This follows fromthe purpose of Article 5, which is intended to guard against the ill treatment ofpersons in custody (as well as arbitrary arrest) rather than to prompt thefairness of trials. This carries with it the implication that the right to bebrought before the court “promptly” only arises in the event of continueddetention and not, therefore, where arrest and/or detention are followed byprompt release 6 .3.0.10 All of this seems to confirm that the European Court is content with a situationwhere the suspect arrested and detained is questioned about the subject matter5 Brogan v United Kingdom (1989) 11 EHRR 117 and Murray v United Kingdom (1994) 19 EHRR 1936 Murray v United Kingdom (supra) paras 67-6953
- 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 50 and 51: first required to have been “subs
- Page 52 and 53: The long term implication of this,
- 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
- Page 100 and 101: Current law5.2.3 In terms of sectio
- Page 102 and 103: 5.2.5 Particularly in view of the t
<strong>and</strong> of society as a whole. The purpose of Article 5 is accordingly not only toassert the fundamental right to liberty, but also to set out the limited conditionsunder which interferences with this right can be made.3.0.7 The Convention uses both the words “arrest” <strong>and</strong> “detention”. It seems that“arrest” refers to the act of immediate deprivation of liberty <strong>and</strong> “detention” tothe period thereafter when the prisoner is kept in custody (usually at a policestation). The test for the legitimacy of both is the same. A person may bearrested or detained “on reasonable suspicion of having committed an offence”.Just what “reasonable suspicion” is varies according to circumstances. Itexists when there is information which would satisfy an objective observerthat the suspect concerned may have committed the offence 2 . There is noexpress obligation upon the police under this Article 3 to charge a suspect atthe point of arrest or at the stage of his detention at the police station, althoughthe suspect must be told of the reason for his/her arrest <strong>and</strong> subsequent, if any,detention.3.0.8 It is clear from Article 5 that the only legitimate purpose of arrest <strong>and</strong>detention is to bring the suspect before “the competent legal authority”. TheReview takes this to mean a court or judge in some form 4 , i.e. an independentjudicial authority. If the motive for an arrest <strong>and</strong>/or detention were simply thatthe suspect could be questioned, the subsequent custody for that purpose could,it might readily have been argued, have amounted to a violation of that2 Fox v United Kingdom (1991) 13 EHRR 157 at para 323 Article 6 (infra) of course also has to be considered4 Schiesser v Switzerl<strong>and</strong>, (1979) 2 EHRR 417 at para 2952
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