Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
commented 30 the Review considers that such an authority means someoneindependent of the Government, prosecution service or police and who is theequivalent of a judge 31 .5.1.22 The purpose of arrest and detention, in the Scottish context, must ultimatelyremain to bring the suspect before the sheriff or other judicial office holder inrespect of a particular crime. Yet section 14 detention does not have that as anecessary aim, unless it is seen in the context of an investigation which, ifpursued bona fide, has an appearance before the court as its intended ultimategoal. Article 5 does not expressly encompass detention for police questioningnor does it authorise any other form of “investigative” custody. In short, theConvention precludes a suspect being taken into police custody solely forinvestigative purposes.5.1.23 However, the European Court has held that Article 5 does not presuppose thatarrest and detention are only permitted when the police have obtainedsufficient evidence to bring charges. Quite the contrary, all that is required isreasonable suspicion that the person has committed a crime. Thereafter, thepolice can hold the suspect, pending appearance at court, and continue theirinvestigations, which may include questioning. In Murray 32 the applicant wasneither charged nor brought before a court. Rather, she was released after30 see above para 3.0.831 Schiesser v Switzerland (1979) 2 EHRR 417 at para 29 and see dicta in Murray v United Kingdom(infra) about bringing the person before the competent legal authority after charge32 Murray v United Kingdom (1994) 19 EHRR 19386
interview. The Court stated that the ultimate absence of a charge or courtappearance 33 :“…does not necessarily mean… that the purpose of her arrest anddetention was not in accordance with Article 5 para. 1 (c)…since “theexistence of such a purpose must be considered independently of itsachievement” (…Brogan 34 … para. 53). As the domestic courtspointed out … in view of her persistent refusal to answer any questionsat the Army … it is not surprising that the authorities were not able tomake any headway in pursuing the suspicions against her. It can beassumed that, had these suspicions been confirmed, charges wouldhave been laid and she would have been brought before the competentlegal authority”.The Court summarised the position as follows 35 :“Provided that the purpose of the arrest and detention is genuinely tobring the person before the competent legal authority, the mechanicsof how this is to be achieved will not be decisive”.5.1.24 Subject to a suspect being advised of his/her rights and these rights being,where required, complied with, there is no express bar on questioning or anylimit on the nature and extent of that questioning. This follows from thepurpose of Article 5, which, again as already noted, is intended to guardagainst the ill treatment of persons in custody (as well as arbitrary arrest)rather than to promote fairness in trials, which is the function of Article 6.5.1.25 This reasoning may seem convoluted to the casual reader of Article 5, butpolice questioning after arrest and detention is regarded by the European Courtas legitimate because it is regarded as an integral part of a continuing process33 at para 6734 Brogan v United Kingdom (supra)35 at para 6887
- Page 38 and 39: ultimate arbiter of constitutionali
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- Page 44 and 45: Cadder2.0.35 Mr Cadder was aged 16
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- Page 52 and 53: The long term implication of this,
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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
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- 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 and 86: 5.1.15 Reasonable suspicion permits
- Page 87: arrest, without warrant, any person
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- Page 97: (d) may destroy evidence, interfere
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- Page 104 and 105: individuals were being detained wit
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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
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- Page 120 and 121: jurisdictions where judicial or oth
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- Page 128 and 129: procurator fiscal consider that the
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- Page 132 and 133: prudent, therefore, to constrain an
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commented 30 the Review considers that such an authority means someoneindependent of the <strong>Government</strong>, prosecution service or police <strong>and</strong> who is theequivalent of a judge 31 .5.1.22 The purpose of arrest <strong>and</strong> detention, in the <strong>Scottish</strong> context, must ultimatelyremain to bring the suspect before the sheriff or other judicial office holder inrespect of a particular crime. Yet section 14 detention does not have that as anecessary aim, unless it is seen in the context of an investigation which, ifpursued bona fide, has an appearance before the court as its intended ultimategoal. Article 5 does not expressly encompass detention for police questioningnor does it authorise any other form of “investigative” custody. In short, theConvention precludes a suspect being taken into police custody solely forinvestigative purposes.5.1.23 However, the European Court has held that Article 5 does not presuppose thatarrest <strong>and</strong> detention are only permitted when the police have obtainedsufficient evidence to bring charges. Quite the contrary, all that is required isreasonable suspicion that the person has committed a crime. Thereafter, thepolice can hold the suspect, pending appearance at court, <strong>and</strong> continue theirinvestigations, which may include questioning. In Murray 32 the applicant wasneither charged nor brought before a court. Rather, she was released after30 see above para 3.0.831 Schiesser v Switzerl<strong>and</strong> (1979) 2 EHRR 417 at para 29 <strong>and</strong> see dicta in Murray v United Kingdom(infra) about bringing the person before the competent legal authority after charge32 Murray v United Kingdom (1994) 19 EHRR 19386
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