Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
5.1.33 The police require to consider the proportionality of holding a suspect incustody. If, for example, the offence is one which does not attract a custodialsentence, it is unlikely that custody prior to court appearance will be justifiedother than in the most exceptional circumstances. It is therefore incumbent onthe police, in determining whether the suspect’s continued detention isnecessary or proportionate, to take into account the nature and seriousness ofthe crime and the probable disposal if convicted.5.1.34 If arrest is redefined to refer purely to the initial deprivation of liberty onreasonable suspicion, the current close link between arrest and charge shouldbe weakened. As is discussed in later chapters, there still requires to be apoint at which a suspect is notified that the state intends to bring him/herbefore a court charged with the commission of a specified crime. But underthe proposed new approach, a formal charge need not be profferedimmediately, or even soon after, the point of arrest or detention. That is not tosay that a suspect should not be told of the reason for his/her arrest anddetention. That must continue to occur.5.1.35 If arrest and detention are to be redefined in statute, there should be aprovision specifying the purpose and reason for making an arrest. It is clearthat any such provision would have to be consistent with Article 5, althoughthe Review accepts that the verbatim incorporation of the terms of Article 5would serve little purpose. Any such provision should allow for the policepursuing their investigations, whilst respecting the fact that the ultimatepurpose of arrest and detention must be to bring the person before the court, if92
justified by the evidence gathered 37 . It is therefore proposed that the reasonfor arrest and subsequent detention should be stated as being to bring theperson before the competent legal authority, by way of continued investigationinto the merits of the case and reporting to the procurator fiscal with a view toservice of a summary complaint or a petition in the usual way. The currentphraseology of section 14, which refers to “facilitating the carrying out ofinvestigations etc”, should be amended to remove any suggestion that a personcan be arrested and detained for investigative purposes only. It would,however, be helpful to clarify in statute that, where a suspect has been arrestedand detained, the police do have the powers to question him/her and to carryout any other investigative procedures, in the same way as they have at presentwith a suspect in section 14 detention. This will, of course, be subject to allthe safeguards necessary for a fair trial in Article 6 terms, some of which areconsidered in the following section.5.1.36 The Review has considered whether there should be changes to therequirements regarding warrants for arrest. Under the proposed new approach,arrest would now perform a similar function as section 14 detention alreadydoes currently. It would be the principal means of bringing a suspect intocustody, where questioning may occur. Given that the existing system ofsection 14 detention appears to have been accepted as operatingproportionately without the intervention of judicial authority, no court warrantfor arrest or detention ought to be required for imprisonable offences.However, for other offences, such a warrant should be a requirement unless37 i.e. in line with the European Court’s decisions in Brogan and Murray (supra)93
- Page 44 and 45: Cadder2.0.35 Mr Cadder was aged 16
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- Page 75 and 76: next step, as quickly as possible.
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- Page 116 and 117: 5.2.29 Continuing with the custody
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5.1.33 The police require to consider the proportionality of holding a suspect incustody. If, for example, the offence is one which does not attract a custodialsentence, it is unlikely that custody prior to court appearance will be justifiedother than in the most exceptional circumstances. It is therefore incumbent onthe police, in determining whether the suspect’s continued detention isnecessary or proportionate, to take into account the nature <strong>and</strong> seriousness ofthe crime <strong>and</strong> the probable disposal if convicted.5.1.34 If arrest is redefined to refer purely to the initial deprivation of liberty onreasonable suspicion, the current close link between arrest <strong>and</strong> charge shouldbe weakened. As is discussed in later chapters, there still requires to be apoint at which a suspect is notified that the state intends to bring him/herbefore a court charged with the commission of a specified crime. But underthe proposed new approach, a formal charge need not be profferedimmediately, or even soon after, the point of arrest or detention. That is not tosay that a suspect should not be told of the reason for his/her arrest <strong>and</strong>detention. That must continue to occur.5.1.35 If arrest <strong>and</strong> detention are to be redefined in statute, there should be aprovision specifying the purpose <strong>and</strong> reason for making an arrest. It is clearthat any such provision would have to be consistent with Article 5, althoughthe Review accepts that the verbatim incorporation of the terms of Article 5would serve little purpose. Any such provision should allow for the policepursuing their investigations, whilst respecting the fact that the ultimatepurpose of arrest <strong>and</strong> detention must be to bring the person before the court, if92
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