Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
5.0.3 The Review is not tasked to enquire into cell conditions and has not done so.It has not been submitted to the Review that persons kept in these temporarycells are generally exposed to ill treatment, at least in Article 3 terms. In theabsence of such a submission, the Review has not considered whether schemesof cell monitoring or other forms of safeguard, beyond those which are alreadyin place, are either necessary or desirable. However, the Review has keptfirmly in mind the general nature of the accommodation when considering thetests to be applied before removing or restricting a person’s liberty and theperiods of time appropriate to these limitations.5.0.4 There are three broad areas that are explored in this section: first, Chapter 4.1– Arrest and Detention, considers what should constitute the core elements ofbringing someone into custody; the procedures, the grounds and purpose ofdoing so and the extent to which these should be codified. It looks at thepractical distinction between section 14 detention and arrest (as understood inScots law). It concludes that this distinction has been eroded to such an extentthat there is little purpose in continuing with two different states of policecustody and that it would be simpler, and more clearly in tune with theConvention, if there were a single period of custody, once a suspect has beenarrested on suspicion.5.0.5 Secondly, Chapter 4.2 – Period of Custody, focuses on ensuring that a suspectis detained for as short a time as is reasonably practicable, given that Article 5requires that he/she is brought before the court, where that is the appropriate72
next step, as quickly as possible. The Review considers there should be aperiod of no more that twelve hours before a suspect is charged, reported tothe procurator fiscal or released. The point of charge/report should thentrigger the requirement for appearance the next lawful court day. This initialtwelve hour period of detention should contain a review after six hours, andshould not be subject to extension by the police.5.0.6 Finally, Chapter 4.3 – Liberation from Police Custody, looks at thecircumstances under which a suspect should be liberated prior to his/herappearance in court and the conditions which might be attached to any suchliberation. Given the emphasis which the Review places on the right to liberty,there should be greater powers for the police to be able to liberate a suspectduring the pre charge period and for either the police or the procurator fiscal torelease a suspect on condition of an appearance in court at a certain future date.All of these powers should be subject to appropriate safeguards andconstricted by strict timescales. The introduction of these measures shouldensure that the removal of a suspect’s liberty is only done at a point, and for aperiod of time, which is both necessary and proportionate. The final part ofthis section looks at the circumstances in which a suspect could or should beliberated prior to his/her appearance in court and the conditions which mightbe attached to any such liberation.5.0.7 When the above areas are considered together, the recommendations create acustody system which ought to secure compliance with Article 5 in the longterm and in practice mean that suspects will generally spend less time73
- 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 70 and 71: operates in a context where the hum
- Page 73: 5.0 CUSTODY CHAPTERS OVERVIEW5.0.1
- 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
5.0.3 The Review is not tasked to enquire into cell conditions <strong>and</strong> has not done so.It has not been submitted to the Review that persons kept in these temporarycells are generally exposed to ill treatment, at least in Article 3 terms. In theabsence of such a submission, the Review has not considered whether schemesof cell monitoring or other forms of safeguard, beyond those which are alreadyin place, are either necessary or desirable. However, the Review has keptfirmly in mind the general nature of the accommodation when considering thetests to be applied before removing or restricting a person’s liberty <strong>and</strong> theperiods of time appropriate to these limitations.5.0.4 There are three broad areas that are explored in this section: first, Chapter 4.1– Arrest <strong>and</strong> Detention, considers what should constitute the core elements ofbringing someone into custody; the procedures, the grounds <strong>and</strong> purpose ofdoing so <strong>and</strong> the extent to which these should be codified. It looks at thepractical distinction between section 14 detention <strong>and</strong> arrest (as understood inScots law). It concludes that this distinction has been eroded to such an extentthat there is little purpose in continuing with two different states of policecustody <strong>and</strong> that it would be simpler, <strong>and</strong> more clearly in tune with theConvention, if there were a single period of custody, once a suspect has beenarrested on suspicion.5.0.5 Secondly, Chapter 4.2 – Period of Custody, focuses on ensuring that a suspectis detained for as short a time as is reasonably practicable, given that Article 5requires that he/she is brought before the court, where that is the appropriate72
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