Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
In practice there are few challenges, other than in the statutory context of therecovery of real 26 evidence, to the basis upon which a detention or arrest hasbeen instructed or carried out.Other jurisdictions5.1.17 In England and Wales, the only general power to take a suspect into custody isthe power of arrest. The purposes for which arrest can be effected are definedin the Police and Criminal Evidence Act 1984. Section 24 of PACE providesthat an arrest (without warrant) can only be made for certain reasons,including to allow the prompt and effective investigation of the offence or theconduct of the suspect. Arrest for investigative reasons, which can be done onthe grounds of reasonable suspicion, under PACE, is broadly the equivalent ofsection 14 detention.5.1.18 In Ireland, under section 4 of the Criminal Justice Act 1984 a person can bearrested, without warrant, where there is reasonable cause to suspect him/herof a crime punishable by imprisonment of 5 years or more. If the officer incharge of the police station has reasonable grounds for believing that his/herdetention is “necessary for the proper investigation of the offence”, the suspectmay be detained and questioned before charge.5.1.19 In New Zealand there is no general statutory power of arrest. Wherelegislation provides for a specific power of arrest, a police officer has power to26 in the Latin sense of a thing such as a breath sample or a packet of drugs84
arrest, without warrant, any person who has committed an offence, and anyperson whom the police officer has reasonable and probable grounds tosuspect has committed an offence 27 . In New South Wales, arrest can proceedupon reasonable suspicion 28 but the purpose must be to bring the suspectbefore the court, not simply to question him/her 29 .The Convention: Arrest and Detention under Article 55.1.20 Under Article 5 of the Convention, the test for the legitimacy of both arrestand detention is the same. A person may be arrested or detained “onreasonable suspicion of having committed an offence”. Just what “reasonablesuspicion” is will vary according to circumstances. Although arrest can alsobe used to prevent a person from committing an offence, this Review is notdirectly concerned with that provision. There is no express obligation uponthe police under Article 5 to charge a suspect at the point of arrest or at thestage of his/her detention in a police station, although he/she must be told ofthe reason for the arrest or detention.5.1.21 Article 5.1(c) stipulates the purposes for which arrest, which, as defined,encompasses section 14 detention, may be effected. It is clear from this that,in the context of the Review, the only legitimate purpose of arrest anddetention is to bring the suspect before the “competent legal authority” onreasonable suspicion of having committed an offence.As already27 ss 31 and 32 Crimes Act 196128 Law Enforcement (Powers and Responsibilities) Act 2002 s 99 (this whole act is an impressivecodification of police and other powers of arrest)29 Williams v R (1986) 161 CLR 278, cf ss 114, 115 of the 2002 Act85
- 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
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- Page 52 and 53: The long term implication of this,
- Page 54 and 55: and of society as a whole. The purp
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- 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
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- 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: 5.1.15 Reasonable suspicion permits
- Page 89 and 90: interview. The Court stated that th
- Page 91 and 92: of the suspect and subsequent crimi
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- Page 97: (d) may destroy evidence, interfere
- Page 100 and 101: Current law5.2.3 In terms of sectio
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- 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
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- 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
- Page 130 and 131: the standard bail conditions and, i
- Page 132 and 133: prudent, therefore, to constrain an
- Page 134 and 135: to challenge any conditions before
arrest, without warrant, any person who has committed an offence, <strong>and</strong> anyperson whom the police officer has reasonable <strong>and</strong> probable grounds tosuspect has committed an offence 27 . In New South Wales, arrest can proceedupon reasonable suspicion 28 but the purpose must be to bring the suspectbefore the court, not simply to question him/her 29 .The Convention: Arrest <strong>and</strong> Detention under Article 55.1.20 Under Article 5 of the Convention, the test for the legitimacy of both arrest<strong>and</strong> detention is the same. A person may be arrested or detained “onreasonable suspicion of having committed an offence”. Just what “reasonablesuspicion” is will vary according to circumstances. Although arrest can alsobe used to prevent a person from committing an offence, this Review is notdirectly concerned with that provision. There is no express obligation uponthe police under Article 5 to charge a suspect at the point of arrest or at thestage of his/her detention in a police station, although he/she must be told ofthe reason for the arrest or detention.5.1.21 Article 5.1(c) stipulates the purposes for which arrest, which, as defined,encompasses section 14 detention, may be effected. It is clear from this that,in the context of the Review, the only legitimate purpose of arrest <strong>and</strong>detention is to bring the suspect before the “competent legal authority” onreasonable suspicion of having committed an offence.As already27 ss 31 <strong>and</strong> 32 Crimes Act 196128 Law Enforcement (Powers <strong>and</strong> Responsibilities) Act 2002 s 99 (this whole act is an impressivecodification of police <strong>and</strong> other powers of arrest)29 Williams v R (1986) 161 CLR 278, cf ss 114, 115 of the 2002 Act85
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