Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
has looked at the present utility of section 14 detention and its interlinkingwith arrest, with and without warrant, at common law. The Review has thenformulated recommendations designed to enhance and improve the system,having regard to existing traditions and concepts in light of modernConvention jurisprudence.5.1.4 The existence of two distinct means of taking a person into custody, that is byarrest at common law and statutory section 14 detention, is a peculiar, if notunique, feature of modern Scots criminal procedure. Historically, arrest wasthe only means of achieving this end 2 and, in common with many otherjurisdictions, the law distinguished between arrest under warrant from a courtand arrest without such a warrant. As a general principle, and subject tocertain important and extensively used exceptions, the present law is thatarrest should be effected only under the authority of a warrant.5.1.5 Detention, as a distinct method of taking a person into custody, was devisedby the Thomson Committee as a response to criticisms of the then currentwidespread police practice of taking and keeping someone, who had notformally been arrested, into custody. Since its introduction in 1980, section 14detention has been regarded as a necessary power enabling the police to take asuspect into custody and to question him/her with a view to establishingwhether a case against him/her exists.2 Swankie v Milne 1973 JC 1, Lord Cameron at 676
5.1.6 The Review has considered whether the current system of section 14 detentionand common law arrest should be reformed and, specifically, whether thereremains a case for retaining separate powers of detention and arrest. Thematter has been approached by looking, first, at the purposes for which aperson may be taken into police custody and held there and, secondly, at thegrounds (or standard of information) required before the powers may beexercised. Related matters, including whether these powers require to bedefined in statute and whether a suspect should be afforded a distinct status inlaw, have also been examined.Current law5.1.7 In the Scottish legal tradition, the purpose of arrest, whether under warrant ornot, is to bring the suspect before a court, usually the sheriff, for examination.Arrest has not been permitted merely to take a suspect into custody for thepurposes of further investigation or questioning by the police. Indeed, it isgenerally, but not universally, thought that questioning after arrest isproblematic 3 even where the arrest has proceeded on the grounds of onlyreasonable suspicion coupled with a risk of escape or destruction of evidenceand there is insufficient evidence to charge. Contrary to some modern belief,arrest has to be accompanied by a charge 4 even if, for logistical reasons, theremight be a short time lapse between these events. Questioning after charge isprohibited. This limitation was less significant in the days when the sheriffhad an investigative function and would personally ask questions of the3 Chalmers, LJ-C (Thomson)4 Thomson Committee para 3.07; Chalmers, LJG (Cooper) at 78; HM Advocate v Aitken (supra), cfJohnstone v HM Advocate (supra)77
- 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 and 74: 5.0 CUSTODY CHAPTERS OVERVIEW5.0.1
- Page 75 and 76: next step, as quickly as possible.
- Page 77: 5.1 ARREST AND DETENTIONIntroductio
- 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
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5.1.6 The Review has considered whether the current system of section 14 detention<strong>and</strong> common law arrest should be reformed <strong>and</strong>, specifically, whether thereremains a case for retaining separate powers of detention <strong>and</strong> arrest. Thematter has been approached by looking, first, at the purposes for which aperson may be taken into police custody <strong>and</strong> held there <strong>and</strong>, secondly, at thegrounds (or st<strong>and</strong>ard of information) required before the powers may beexercised. Related matters, including whether these powers require to bedefined in statute <strong>and</strong> whether a suspect should be afforded a distinct status inlaw, have also been examined.Current law5.1.7 In the <strong>Scottish</strong> legal tradition, the purpose of arrest, whether under warrant ornot, is to bring the suspect before a court, usually the sheriff, for examination.Arrest has not been permitted merely to take a suspect into custody for thepurposes of further investigation or questioning by the police. Indeed, it isgenerally, but not universally, thought that questioning after arrest isproblematic 3 even where the arrest has proceeded on the grounds of onlyreasonable suspicion coupled with a risk of escape or destruction of evidence<strong>and</strong> there is insufficient evidence to charge. Contrary to some modern belief,arrest has to be accompanied by a charge 4 even if, for logistical reasons, theremight be a short time lapse between these events. Questioning after charge isprohibited. This limitation was less significant in the days when the sheriffhad an investigative function <strong>and</strong> would personally ask questions of the3 Chalmers, LJ-C (Thomson)4 Thomson Committee para 3.07; Chalmers, LJG (Cooper) at 78; HM Advocate v Aitken (supra), cfJohnstone v HM Advocate (supra)77
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