Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
suspect. But once the sheriff’s investigative role had passed to the procuratorfiscal and, through that office, to the police, the absence of a power to takeinto custody for the purpose of questioning as part of an investigation washighlighted 5 . As the Thomson Committee recognised, arrest, whether with orwithout warrant, was 6 :“ … competent only when police enquiries have reached the stage atwhich there is sufficient evidence to charge, it follows that the policehave no power to detain a person whom they have reasonable groundsto suspect of a crime unless and until the evidence against him issufficiently corroborated to justify reporting him to the procuratorfiscal”.Arrest by warrant5.1.8 A warrant to arrest a suspect is obtained from a court, on the application of theprocurator fiscal, where it is necessary to secure an accused’s attendance atcourt. If the suspect can be expected to appear at court when cited to do so, nowarrant ought to be granted. According to Hume 7 , sheriffs and other judicialoffice holders may grant a warrant “on due information of any crime”. Awarrant, in the case of a summary complaint, is sought on the basis ofcorroborated evidence. In solemn 8 cases, where a petition is presented, it isrequested on the basis of at least a single source of evidence. As alreadyobserved, it has generally been accepted that arrest ought to be accompaniedby a charge 9 and a charge can only be proffered on the basis of evidence.Reasonable suspicion alone is not a sufficient basis for an arrest.5 ibid6 para 3.107 Hume ii, 778 i.e. serious9 cf Johnstone v HM Advocate (supra), which the Review considers to be wrong in principle havingregard to other authority such as Chalmers78
Arrest without warrant5.1.9 A police officer has the power to arrest without warrant where that isnecessary for the purposes of preventing crime, the escape of the suspect orthe destruction of evidence 10 . This power is exercisable where there is areasonable suspicion of a person having committed an offence 11 . A policeofficer may arrest on credible information that a serious crime has recentlybeen committed, or attempted, and the offender is likely to abscond 12 . He/shemay also arrest, in similar circumstances, if he/she witnesses a crime beingcommitted or attempted, or violence being threatened, or if he/she sees asuspect fleeing from the scene of a crime 13 . Although the law on arrest atcommon law, with or without warrant, could be clearer, it seldom poses aproblem in practice.5.1.10 Parliament has created powers to arrest without warrant in a wide variety of,sometimes relatively minor, statutory offences. In almost every instance,reasonable suspicion is stated to be a sufficient ground. Such powers arise, forexample, in drink driving offences 14and breaches of domestic abuseinterdicts 15 . A similar power is provided to allow a police officer to arrest aperson whom he/she finds committing certain public nuisance offences 16 .None of this legislation makes reference to the power of arrest being10 Hume ii, 75 et seq; Renton & Brown (6th ed) at para 7.05; Peggie v Clark (1868) 7 M 89, Lord Deasat p 9311 Peggie v Clark (supra)12 Renton & Brown para 7.05; Peggie v Clark (supra), Lord Deas at p 9313 Hume ii, 75 et seq14 Road Traffic Act 1988 s 615 Matrimonial Homes (Family Protection) (Scotland) Act 1981 s 15(3)16 Civic Government (Scotland) Act 1982 s 59(1)79
- 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 and 78: 5.1 ARREST AND DETENTIONIntroductio
- Page 79: 5.1.6 The Review has considered whe
- 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
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- Page 128 and 129: procurator fiscal consider that the
suspect. But once the sheriff’s investigative role had passed to the procuratorfiscal <strong>and</strong>, through that office, to the police, the absence of a power to takeinto custody for the purpose of questioning as part of an investigation washighlighted 5 . As the Thomson Committee recognised, arrest, whether with orwithout warrant, was 6 :“ … competent only when police enquiries have reached the stage atwhich there is sufficient evidence to charge, it follows that the policehave no power to detain a person whom they have reasonable groundsto suspect of a crime unless <strong>and</strong> until the evidence against him issufficiently corroborated to justify reporting him to the procuratorfiscal”.Arrest by warrant5.1.8 A warrant to arrest a suspect is obtained from a court, on the application of theprocurator fiscal, where it is necessary to secure an accused’s attendance atcourt. If the suspect can be expected to appear at court when cited to do so, nowarrant ought to be granted. According to Hume 7 , sheriffs <strong>and</strong> other judicialoffice holders may grant a warrant “on due information of any crime”. Awarrant, in the case of a summary complaint, is sought on the basis ofcorroborated evidence. In solemn 8 cases, where a petition is presented, it isrequested on the basis of at least a single source of evidence. As alreadyobserved, it has generally been accepted that arrest ought to be accompaniedby a charge 9 <strong>and</strong> a charge can only be proffered on the basis of evidence.Reasonable suspicion alone is not a sufficient basis for an arrest.5 ibid6 para 3.107 Hume ii, 778 i.e. serious9 cf Johnstone v HM Advocate (supra), which the Review considers to be wrong in principle havingregard to other authority such as Chalmers78
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