Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
4.0.3 In short, the Review has grasped the opportunity presented to it not just toaccept the temporary, if largely effective, solutions advanced in the 2010 Actbut to re-build and reinforce the system’s foundations by incorporatingConvention rights in larger measure and at greater depth. The thinking doesnot dwell upon, nor stop at, the creation of a Convention compliant set of rules.Rather it has contemplated changes that would surpass the minimumrequirements dictated by the Convention jurisprudence and be capable ofwithstanding any predictable changes in that jurisprudence in the medium, ifnot longer, term.4.0.4 In order to achieve this result, the Review returned to first principles in anumber of areas of the law of evidence and procedure. It challengedtraditional legal thinking, seeking to uncover the reason for the existence ofparticular principles and rules within the system. It had in mind throughoutthe need for the maintenance of an efficient and effective system for theinvestigation and prosecution of crime, whilst at the same time developing thatsystem and modernising, clarifying and simplifying it wherever possible. Thisrequired an examination of almost all stages of the criminal justice process,from the commencement of the police investigation, through the report to theprocurator fiscal and the suspect’s first court appearance, to the evidenceadduced at trial and the courts’ decisions on sufficiency, on to the appellatecourts’ assessment of miscarriages of justice and finally to the determinationof references from the SCCRC. In this last context it took account of the need62
of all affected by the system to achieve such certainty and closure as isconsistent with a civilised course of justice.4.0.5 The most significant articles of the Convention which underpin the system arethose expressing the right to liberty (Article 5) and the right to a fair trial(Article 6). In determining where and how the system needed to change, itwas necessary to examine individual elements in each article and tocontemplate a variety of situations in the processes mentioned above whichwould require new Convention compliant solutions. The four main areasscrutinised were custody, investigation, evidence and appeals. The substanceof the report has been laid out under these main headings. The ultimateintention, however, has not been to achieve minimum Convention compliancebut to re-establish Scotland at the forefront of the law and practice of humanrights in general.4.0.6 Concern has been expressed that the Review was commissioned with a view tore-balancing a criminal justice system which had been thrown out of kilter byCadder. There was some perception that Cadder had tilted the system infavour of the suspect in a criminal investigation and there required to be a readjustmentby adding weight to the causes of the police and prosecution. TheReview has not sought to analyse whether there has been a tilting or not and,in any event, in whose favour the balance has wavered. It has not approachedits remit with a view to re-adjusting the system in favour of any particularinstitution or group of persons.63
- 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 62 and 63: unlawful for a public authority to
- 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
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- 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
4.0.3 In short, the Review has grasped the opportunity presented to it not just toaccept the temporary, if largely effective, solutions advanced in the 2010 Actbut to re-build <strong>and</strong> reinforce the system’s foundations by incorporatingConvention rights in larger measure <strong>and</strong> at greater depth. The thinking doesnot dwell upon, nor stop at, the creation of a Convention compliant set of rules.Rather it has contemplated changes that would surpass the minimumrequirements dictated by the Convention jurisprudence <strong>and</strong> be capable ofwithst<strong>and</strong>ing any predictable changes in that jurisprudence in the medium, ifnot longer, term.4.0.4 In order to achieve this result, the Review returned to first principles in anumber of areas of the law of evidence <strong>and</strong> procedure. It challengedtraditional legal thinking, seeking to uncover the reason for the existence ofparticular principles <strong>and</strong> rules within the system. It had in mind throughoutthe need for the maintenance of an efficient <strong>and</strong> effective system for theinvestigation <strong>and</strong> prosecution of crime, whilst at the same time developing thatsystem <strong>and</strong> modernising, clarifying <strong>and</strong> simplifying it wherever possible. Thisrequired an examination of almost all stages of the criminal justice process,from the commencement of the police investigation, through the report to theprocurator fiscal <strong>and</strong> the suspect’s first court appearance, to the evidenceadduced at trial <strong>and</strong> the courts’ decisions on sufficiency, on to the appellatecourts’ assessment of miscarriages of justice <strong>and</strong> finally to the determinationof references from the SCCRC. In this last context it took account of the need62
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