Report and Recommendations - Scottish Government

More documents

Recommendations

Info

unlawful for a public authority to act in a way which is incompatible with aConvention right. “An act’ includes a failure to act” 21 .3.0.22 The European Commission has been developing the concept of victims’ rightswith its proposal for a Directive published in May 2011 22 . Although thisprimarily focuses on the ability of victims to intervene in a court’sconsideration of a case by means of a victim statement, it is indicative of agrowing recognition that the criminal justice system has obligations to thosewho suffer, or may suffer, from the effects of crime. The Review has beenconscious of the need for its recommendations to take into account, not onlythe legitimate protection of the rights of the individual suspect or accused, butalso the need for effective and efficient investigation and prosecution of crimebecause of their importance in the protection of the rights of citizens in generaland the victims of crime in particular.21 Human Rights Act s 6 (1) and s 6 (6)22 “Proposal for a Directive of the European Parliament and of the Council establishing minimumstandards on the rights, support and protection of victims of crime” COM(2011) 275 final60
4.0 THE PROPOSED CHANGES – AN OVERVIEWIntroduction4.0.1 The criminal justice system in Scotland has evolved and developed over manyyears. There have been moments in its evolution when it has had to undergosubstantial and radical change in order to meet the expectations andrequirements of modern society. The implementation of the ThomsonCommittee’s Second Report was one such moment. The system is at a similarpoint in the aftermath of Cadder. That decision highlighted dramatically theneed for the system to be reviewed and reformed with a stronger focus onmeeting the requirements of the Convention. The suite of recommendations inthe following chapters is designed to re-cast and modernise aspects of thesystem so that it meets those requirements and provides a comprehensive,effective and fair criminal justice system for the foreseeable future.4.0.2 In developing these recommendations, the Review recognised at the outset ofits work that, whatever the theoretical possibilities, it was not practicable todevise a utopian system which could then be super-imposed over existing wellestablished rules and practices, irrespective of long standing traditions. Thesystem has, until relatively recently, been seen as broadly sound in Conventioncompliance terms and it is important to build on these good rules and practices.However, the Review has not shied away from proposing radical changewhere it is clear that the current approach is outdated, does not readily fulfilConvention obligations or is a hindrance to justice.61
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 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 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
Page 104 and 105: individuals were being detained wit
Page 106 and 107: significant crimes, reflected that
Page 108 and 109: ConsiderationThe period before char
Page 110 and 111: the investigation and prosecution o
Page 112 and 113:
ignored. There are about 100 detent
Page 114 and 115:
5.2.26 Scotland is a small jurisdic
Page 116 and 117:
5.2.29 Continuing with the custody
Page 118 and 119:
5.2.32 The sheriffs principal and s
Page 120 and 121:
jurisdictions where judicial or oth
Page 122 and 123:
where they are uncertain of what th
Page 124 and 125:
122
Page 126 and 127:
The grounds for arrest and initial
Page 128 and 129:
procurator fiscal consider that the
Page 130 and 131:
the standard bail conditions and, i
Page 132 and 133:
prudent, therefore, to constrain an
Page 134 and 135:
to challenge any conditions before
Page 136 and 137:
⎯ the exercise of the powers to l
Page 138 and 139:
the nature and scope of police ques
Page 140 and 141:
suspect the right of access to an a
Page 142 and 143:
involving the suspect having inform
Page 144 and 145:
6.1.3 It was essential that the Rev
Page 146 and 147:
6.1.7 In Ireland 7 , a suspect in c
Page 148 and 149:
lawyer at that stage, although the
Page 150 and 151:
detained suspect must have prompt a
Page 152 and 153:
interview. That is the general posi
Page 154 and 155:
doubt remain dependent upon the sta
Page 156 and 157:
of non-qualified persons posed a pr
Page 158 and 159:
eing interviewed, or otherwise hind
Page 160 and 161:
proportionate. If a conflict does o
Page 162 and 163:
6.1.36 In England and Wales, resear
Page 164 and 165:
context and returning to the genera
Page 166 and 167:
Waiver6.1.41 The European Court has
Page 168 and 169:
until shortly before his/her attend
Page 170 and 171:
⎯ the right of access to a lawyer
Page 172 and 173:
and whether there is sufficient evi
Page 174 and 175:
the degree of suspicion, and to adv
Page 176 and 177:
is detained 7 . Regardless of wheth
Page 178 and 179:
at the diet of trial to exclude his
Page 180 and 181:
police elect, for whatever reason,
Page 182 and 183:
sense, are inadmissible if objected
Page 184 and 185:
the suspect’s right to silence an
Page 186 and 187:
and reliable, e.g. to clear up ambi
Page 188 and 189:
“would have such an adverse effec
Page 190 and 191:
6.2.38 As noted above, section 78 o
Page 192 and 193:
ensure that reasonable lines of enq
Page 194 and 195:
determining fairness in certain cas
Page 196 and 197:
permission to do so. The applicatio
Page 198 and 199:
hour maximum detention period, in a
Page 200 and 201:
incrimination. It should be specifi
Page 202 and 203:
accused’s first appearance on pet
Page 204 and 205:
202
Page 206 and 207:
Current law6.3.4 For the purposes o
Page 208 and 209:
to a Hearing or prosecuted in court
Page 210 and 211:
ight of access to the child, subjec
Page 212 and 213:
Constabulary on the conditions in w
Page 214 and 215:
he/she has a specific right to “p
Page 216 and 217:
general thrust of what is said by t
Page 218 and 219:
6.3.21 In many jurisdictions 43 a c
Page 220 and 221:
6.3.25 This means that any child su
Page 222 and 223:
police interviewing a child at his
Page 224 and 225:
to listen to any advice given. If h
Page 226 and 227:
224
Page 228 and 229:
Current LawDefinition6.4.3 There is
Page 230 and 231:
legislation 6 , both of which stres
Page 232 and 233:
he/she 9 : “may not understand th
Page 234 and 235:
specific statutory rules which make
Page 236 and 237:
of his/her replies because of an ap
Page 238 and 239:
7.0.3 Throughout the course of the
Page 240 and 241:
7.0.8 The Review looked at the admi
Page 242 and 243:
240
Page 244 and 245:
which does not hold when there is a
Page 246 and 247:
We have already directed that witne
Page 248 and 249:
persuade the populace of the validi
Page 250 and 251:
punishments than those exigible on
Page 252 and 253:
tenets. Indeed, even the judiciary
Page 254 and 255:
He concluded 50 :“Although two wi
Page 256 and 257:
does then, in each individual case,
Page 258 and 259:
will look at the evidence at trial
Page 260 and 261:
accused as the perpetrator of the c
Page 262 and 263:
7.2.11 After what might be describe
Page 264 and 265:
Practical Considerations7.2.15 How
Page 266 and 267:
7.2.18 It may seem immediately appa
Page 268 and 269:
Distress7.2.21 Similar consideratio
Page 270 and 271:
The Convention7.2.23 Article 6 of t
Page 272 and 273:
7.2.25 The rules concerning the nee
Page 274 and 275:
finding tribunals are, with rare ex
Page 276 and 277:
cases which had been instructed for
Page 278 and 279:
the criminal justice system. Removi
Page 280 and 281:
The more difficult issue, however,
Page 282 and 283:
more persuasive than a multiplicity
Page 284 and 285:
7.2.49 Corroboration is more likely
Page 286 and 287:
two “guiding principles” which
Page 288 and 289:
y many outside the world of crimina
Page 290 and 291:
different. They may tend to focus m
Page 292 and 293:
neither a statutory nor a common la
Page 294 and 295:
trial judge, in determining whether
Page 296 and 297:
Other JurisdictionsSubmissions at T
Page 298 and 299:
7.3.13 In Australia 29 :“…if th
Page 300 and 301:
Consideration7.3.18 There is a view
Page 302 and 303:
300
Page 304 and 305:
at least in connection with witness
Page 306 and 307:
with the complainer’s consent. By
Page 308 and 309:
Other jurisdictions7.4.7 The positi
Page 310 and 311:
evidence against him (i.e. presumab
Page 312 and 313:
fact on the other. This is especial
Page 314 and 315:
7.4.17 The common law can certainly
Page 316 and 317:
314
Page 318 and 319:
diet. Alternatively, a court may re
Page 320 and 321:
7.5.8 If an accused does not give e
Page 322 and 323:
If the accused does not give eviden
Page 324 and 325:
England and Wales, Ireland, South A
Page 326 and 327:
Wales, be regarded at least as an a
Page 328 and 329:
is so even if seasoned offenders ma
Page 330 and 331:
inquisitorial systems, what occurs
Page 332 and 333:
SCCRC. The Review believes that, in
Page 334 and 335:
jurisprudence, it must be recognise
Page 336 and 337:
Current Law8.1.5 A person convicted
Page 338 and 339:
introduced. Thus, as had been indic
Page 340 and 341:
Late Appeals (solemn cases)8.1.12 A
Page 342 and 343:
Summary cases8.1.16 In summary proc
Page 344 and 345:
emedy is provided for by law” 49
Page 346 and 347:
ConsiderationSolemn Appeals8.1.23 T
Page 348 and 349:
why the application is late 66 . Fu
Page 350 and 351:
case may be, by advocation against
Page 352 and 353:
e achieved by amendment of section
Page 354 and 355:
power ought to be retained on the b
Page 356 and 357:
354
Page 358 and 359:
Thus, where there is a change of la
Page 360 and 361:
have his/her case referred back to
Page 362 and 363:
8.2.9 It was perceived that there w
Page 364 and 365:
interests of justice, should be con
Page 366 and 367:
conviction be quashed. This applies
Page 368 and 369:
for undermining the important role
Page 370 and 371:
References to the High Court8.2.25
Page 372 and 373:
370
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 412 and 413:
Annex GBooks (continued)Title Autho
Page 414:
Annex GArticles (continued)Title Au
show all

Report and Recommendations - Scottish Government

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?