Report and Recommendations - Scottish Government

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operates in a context where the human rights of all, including those of bothsuspect and victim, are adequately and effectively protected.4.0.14 In considering the road down which Scotland should travel in relation tosecuring justice in its adversarial trial system, the Review has concluded, aftermuch reflection, that the requirement for corroboration, which has existedsince time immemorial, should be abolished in favour of a qualitativeassessment of evidence. This will, if accepted, prompt widespread change inpolice and prosecution practice. It will terminate the situation, whichcurrently exists, whereby the alleged perpetrator of a crime cannot beprosecuted because corroboration chances not to have been found. It is theReview’s conclusion that the abolition of the requirement will not, to anymaterial degree, increase the likelihood of miscarriages of justice occurringwithin the system. It will promote the idea of justice for all and introduce intothe courts a more liberal approach to the assessment of evidence, of a naturewhich exists throughout continental Europe and is prevalent too in the otherparts of the United Kingdom, Ireland and countries where common lawadversarial systems predominate. Although not so evident in those systems,the Review also recommends, for similar reasons, the abolition of the complexrules which discriminate between the admissibility of statements by accusedpersons according to whether they are classified as incriminatory, exculpatoryor mixed.4.0.15 The abolition of the requirement for corroboration may change the type ofadvice which is given by solicitors to clients about to be interviewed by the68
police, but the Review has stepped back from the suggestion that an adverseinference should be drawn from a suspect’s decision not to respond to some,or all, questions posed by the police.4.0.16 In relation to appeals, the proposals aim to abolish outmoded methods ofappeal in favour of an integrated system of appeals, with leave of first instancecourts, from all pre trial decisions and, with leave of the High Court, from alldeterminations of a final nature. There are measures designed to achievegreater finality and certainty in the appeal process and to eradicate abuses of,and delays in, that process. Finally, it is recommended that the High Courtshould not have a gate keeping role in references from the SCCRC but that thewider interests of justice should be a consideration for the Court in decidingreference appeals.69
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TheCarloway ReviewReport andRecomme
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highly disruptive to the system gen
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LIST OF ABBREVIATIONS1995 Act The C
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1.0 INTRODUCTIONBackground1.0.1 In
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a solicitor” prior to, and at any
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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 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 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
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jurisdictions where judicial or oth
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where they are uncertain of what th
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122
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The grounds for arrest and initial
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procurator fiscal consider that the
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the standard bail conditions and, i
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prudent, therefore, to constrain an
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to challenge any conditions before
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⎯ the exercise of the powers to l
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the nature and scope of police ques
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suspect the right of access to an a
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involving the suspect having inform
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6.1.3 It was essential that the Rev
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6.1.7 In Ireland 7 , a suspect in c
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lawyer at that stage, although the
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detained suspect must have prompt a
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interview. That is the general posi
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doubt remain dependent upon the sta
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of non-qualified persons posed a pr
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eing interviewed, or otherwise hind
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proportionate. If a conflict does o
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6.1.36 In England and Wales, resear
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context and returning to the genera
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Waiver6.1.41 The European Court has
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until shortly before his/her attend
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⎯ the right of access to a lawyer
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and whether there is sufficient evi
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the degree of suspicion, and to adv
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is detained 7 . Regardless of wheth
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at the diet of trial to exclude his
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police elect, for whatever reason,
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sense, are inadmissible if objected
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the suspect’s right to silence an
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and reliable, e.g. to clear up ambi
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“would have such an adverse effec
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6.2.38 As noted above, section 78 o
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ensure that reasonable lines of enq
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determining fairness in certain cas
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permission to do so. The applicatio
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hour maximum detention period, in a
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incrimination. It should be specifi
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accused’s first appearance on pet
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202
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Current law6.3.4 For the purposes o
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to a Hearing or prosecuted in court
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ight of access to the child, subjec
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Constabulary on the conditions in w
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he/she has a specific right to “p
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general thrust of what is said by t
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6.3.21 In many jurisdictions 43 a c
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6.3.25 This means that any child su
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police interviewing a child at his
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to listen to any advice given. If h
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224
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Current LawDefinition6.4.3 There is
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legislation 6 , both of which stres
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he/she 9 : “may not understand th
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specific statutory rules which make
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of his/her replies because of an ap
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7.0.3 Throughout the course of the
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7.0.8 The Review looked at the admi
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240
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which does not hold when there is a
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We have already directed that witne
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persuade the populace of the validi
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punishments than those exigible on
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tenets. Indeed, even the judiciary
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He concluded 50 :“Although two wi
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does then, in each individual case,
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will look at the evidence at trial
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accused as the perpetrator of the c
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7.2.11 After what might be describe
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Practical Considerations7.2.15 How
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7.2.18 It may seem immediately appa
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Distress7.2.21 Similar consideratio
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The Convention7.2.23 Article 6 of t
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7.2.25 The rules concerning the nee
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finding tribunals are, with rare ex
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cases which had been instructed for
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the criminal justice system. Removi
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The more difficult issue, however,
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more persuasive than a multiplicity
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7.2.49 Corroboration is more likely
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two “guiding principles” which
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y many outside the world of crimina
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different. They may tend to focus m
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neither a statutory nor a common la
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trial judge, in determining whether
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Other JurisdictionsSubmissions at T
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7.3.13 In Australia 29 :“…if th
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Consideration7.3.18 There is a view
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300
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at least in connection with witness
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with the complainer’s consent. By
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Other jurisdictions7.4.7 The positi
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evidence against him (i.e. presumab
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fact on the other. This is especial
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7.4.17 The common law can certainly
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314
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diet. Alternatively, a court may re
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7.5.8 If an accused does not give e
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If the accused does not give eviden
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England and Wales, Ireland, South A
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Wales, be regarded at least as an a
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is so even if seasoned offenders ma
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inquisitorial systems, what occurs
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SCCRC. The Review believes that, in
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jurisprudence, it must be recognise
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Current Law8.1.5 A person convicted
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introduced. Thus, as had been indic
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Late Appeals (solemn cases)8.1.12 A
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Summary cases8.1.16 In summary proc
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emedy is provided for by law” 49
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ConsiderationSolemn Appeals8.1.23 T
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why the application is late 66 . Fu
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case may be, by advocation against
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e achieved by amendment of section
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power ought to be retained on the b
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354
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Thus, where there is a change of la
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have his/her case referred back to
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8.2.9 It was perceived that there w
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interests of justice, should be con
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conviction be quashed. This applies
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for undermining the important role
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References to the High Court8.2.25
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370
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372Annex A
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Annex AFiscal) to assess these case
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Annex Aconviction, were the rule of
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378Annex A
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Annex BRight of access to a lawyer
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Annex BRight of access to a lawyer
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Annex BPolice questioning after cha
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386Annex C
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388Annex D
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Annex ELondon - 18 th -19 th May 20
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Annex EConsultative Meetings - cont
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Annex ESubgroup & individual meetin
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Annex ESubgroup & individual meetin
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Annex EConferences/SeminarsLord Car
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Annex FTable 2 - Organisations that
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Annex GUnited Kingdom Parliament -
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Annex GCases referred to in this Re
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Annex GGordon v HM Advocate 2010 SC
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Annex GParker v The Queen [2007] NT
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Annex GBooks (continued)Title Autho
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Annex GArticles (continued)Title Au
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Report and Recommendations - Scottish Government

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