Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
complacency must be avoided and the system must have checks to ensure thatsuch ill treatment does not occur in the future. In that context, the decision ofthe European Court in Dayanan v Turkey 18 is significant in its requirement forearly intervention, if requested, by a lawyer to witness a suspect’s condition,to hear his concerns and for other purposes in connection with his continueddetention. Although prisoner welfare has not, perhaps, been at the forefront ofa Scottish criminal court solicitor’s thinking when receiving a telephone callfrom a suspect, it is clear from the Convention jurisprudence that it is a taskwhich the Court expects a lawyer to undertake where appropriate. Theinterlinking between Article 3 and Article 6 requires consideration in thecontext of the reasoning in Dayanan.Article 8 – Right to Respect for Private and Family Life3.0.19 Many of the elements of a criminal investigation, including custody,questioning (e.g. at a suspect’s home), the search for evidence and the takingof samples, will have an impact on a suspect’s Article 8 right to respect forhis/her private life and, in some cases, his/her family life. Holding a suspectin custody not only deprives an individual of his/her liberty, it can alsointerfere with his/her ability to provide support and care for any dependants.Although these considerations are not the central focus of the Review, theyhave been borne in mind in the development of the recommendations.18 Dayanan v Turkey (no 7377/03), 13 October 2009, as yet available officially only in French58
Rights of the Victim3.0.20 There is a further critically important aspect to the Convention’s declaration ofindividual rights and this is the concept of the rights of the victims or potentialvictims of crime. The state has a positive obligation to secure and protectthose rights; not merely to avoid infringing them. In some respects, theConvention is explicit in relation to these rights. Article 2, for example, statesthat “Everybody’s right to life shall be protected by law”. More generally,however, it is understood that such rights as those to liberty and security ofperson, the right of respect for private and family life and the entitlement tothe peaceful enjoyment of possessions 19 can only be meaningful if the statesecures their protection through an effective system for the prevention,investigation and prosecution of crime. This is encapsulated in Article 13,which states that:“Everyone whose rights and freedoms as set forth in this Conventionare violated shall have an effective remedy before a national authoritynotwithstanding that the violation has been committed by personsacting in an official capacity”.3.0.21 Although this primarily requires that there be a legal procedure within eachjurisdiction for raising a complaint that an individual’s rights have beenviolated, the European Court has recognised that Article 13 can apply morewidely and carry with it a requirement that there be proper investigation ofalleged crime 20 . In the United Kingdom, such an obligation on the state mayalso be derived from section 6 of the Human Rights Act 1998, which renders it19 The entitlement to enjoy possessions is contained in Article 1 of the First Protocol to the Convention20 Aydin v Turkey (1997) 25 EHRR 251 at paras 103-10959
- 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
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- Page 32 and 33: e a matter of fact to be determined
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- Page 42 and 43: at the whole circumstances of the c
- Page 44 and 45: Cadder2.0.35 Mr Cadder was aged 16
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- Page 52 and 53: The long term implication of this,
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- 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
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- Page 73 and 74: 5.0 CUSTODY CHAPTERS OVERVIEW5.0.1
- Page 75 and 76: next step, as quickly as possible.
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complacency must be avoided <strong>and</strong> the system must have checks to ensure thatsuch ill treatment does not occur in the future. In that context, the decision ofthe European Court in Dayanan v Turkey 18 is significant in its requirement forearly intervention, if requested, by a lawyer to witness a suspect’s condition,to hear his concerns <strong>and</strong> for other purposes in connection with his continueddetention. Although prisoner welfare has not, perhaps, been at the forefront ofa <strong>Scottish</strong> criminal court solicitor’s thinking when receiving a telephone callfrom a suspect, it is clear from the Convention jurisprudence that it is a taskwhich the Court expects a lawyer to undertake where appropriate. Theinterlinking between Article 3 <strong>and</strong> Article 6 requires consideration in thecontext of the reasoning in Dayanan.Article 8 – Right to Respect for Private <strong>and</strong> Family Life3.0.19 Many of the elements of a criminal investigation, including custody,questioning (e.g. at a suspect’s home), the search for evidence <strong>and</strong> the takingof samples, will have an impact on a suspect’s Article 8 right to respect forhis/her private life <strong>and</strong>, in some cases, his/her family life. Holding a suspectin custody not only deprives an individual of his/her liberty, it can alsointerfere with his/her ability to provide support <strong>and</strong> care for any dependants.Although these considerations are not the central focus of the Review, theyhave been borne in mind in the development of the recommendations.18 Dayanan v Turkey (no 7377/03), 13 October 2009, as yet available officially only in French58
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