Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
unnecessarily in police custody; thus providing a more efficient use of policeand court resources.5.0.8 A potential alteration, which may require to be made in the future if there is tobe full integration of human rights into the criminal justice system, is in thehours and work practices of those engaged in the system. A rights basedsystem cannot operate on a part time basis. Like all essential services, it must,to some degree, continue around the clock. Thus, steps may have to be takento ensure that persons are not deprived of their liberty unnecessarily ordisproportionately at any time. In particular, decisions on liberation by thepolice or the procurator fiscal and ultimately bail by the court must be takenpromptly. That ought not to be a difficulty in the case of the police, who dooperate at all hours. It is, however, potentially a problem in terms of the localprocurators fiscal and the Sheriff and Justice of the Peace Courts. As will beseen, the Review does not consider it acceptable for suspects to be kept incustody for more than thirty six hours, without the opportunity of seeking ajudicial ruling on whether they should continue to be deprived of liberty. Thesituation will need to be monitored and, if necessary, enforced changes madeto working practices in order to facilitate a rights based system.74
5.1 ARREST AND DETENTIONIntroduction5.1.1 This chapter considers the powers of the police to take a suspect into custodyand to hold him/her for investigative or other purposes pending appearance atcourt. The Review has considered these powers in relation to the statutorysection 14 detention procedures and arrest at common law. It has notexamined any other specific statutory powers to arrest or detain 1 in theabsence of any complaints about their operation.5.1.2 The Review has not looked at the system of arrest and detention with a view todesigning a utopian system on a blank sheet of paper. Such an approachwould be academically interesting and potentially possible to adopt, giventime, but it would fail to recognise that the Scottish system already has certaindistinct features and current police practice involves several well understoodconcepts, such as reasonable suspicion, which make it relativelystraightforward to operate. Imposing an entirely new culture would proveextremely difficult to operate in reality and would be likely to cause majordisruption in the criminal justice system of a type which the Review is anxiousto avoid.5.1.3 The Review has attempted to identify faults, both in principle and detail,within the current system, especially having regard to Cadder. In particular, it1 e.g. Misuse of Drugs Act 1971 s 23; Road Traffic Act 1988 s 6; and the Criminal Law(Consolidation)(Scotland) Act 1995 s 50 (offensive weapons)75
- Page 26 and 27: Justice-Clerk (Inglis) stated to a
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- Page 32 and 33: e a matter of fact to be determined
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- Page 44 and 45: Cadder2.0.35 Mr Cadder was aged 16
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- Page 58 and 59: 3.0.15 The right of silence and the
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- Page 75: next step, as quickly as possible.
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unnecessarily in police custody; thus providing a more efficient use of police<strong>and</strong> court resources.5.0.8 A potential alteration, which may require to be made in the future if there is tobe full integration of human rights into the criminal justice system, is in thehours <strong>and</strong> work practices of those engaged in the system. A rights basedsystem cannot operate on a part time basis. Like all essential services, it must,to some degree, continue around the clock. Thus, steps may have to be takento ensure that persons are not deprived of their liberty unnecessarily ordisproportionately at any time. In particular, decisions on liberation by thepolice or the procurator fiscal <strong>and</strong> ultimately bail by the court must be takenpromptly. That ought not to be a difficulty in the case of the police, who dooperate at all hours. It is, however, potentially a problem in terms of the localprocurators fiscal <strong>and</strong> the Sheriff <strong>and</strong> Justice of the Peace Courts. As will beseen, the Review does not consider it acceptable for suspects to be kept incustody for more than thirty six hours, without the opportunity of seeking ajudicial ruling on whether they should continue to be deprived of liberty. Thesituation will need to be monitored <strong>and</strong>, if necessary, enforced changes madeto working practices in order to facilitate a rights based system.74
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