The Senators of the College of Justice

R E S P O N S E

The Senators of the College of Justice

The Scottish Government Consultation Paper

REFORMING SCOTS CRIMINAL LAW AND PRACTICE: THE CARLOWAY REPORT

2012

Question 1

What are your views on the move to a power of arrest on “reasonable suspicion” of having committed a crime, replacing the common law and statutory rules on arrest and detention?

As the consultation paper recognises, one of the effects of the decision in Cadder was to abolish the distinction that was formerly recognised between the rights of a suspect to access to legal advice at the state of detention and the stage of arrest. There accordingly seems to be no reason to maintain the power of detention as a separate power. We consider that it would be appropriate to replace the current rules on arrest and detention with a single power of arrest based upon a constable’s having a reasonable suspicion that the person arrested had committed a crime. This change would simplify police procedure and be readily understood by the general public.

It would be sensible if any change in procedure were accompanied by the introduction of a statutory provision making clear that police officers were entitled to interview any person who had been arrested. The proposal that the detention period should be a maximum of 12 hours without provision for extension is supported, on the understanding that provision will be made for questioning to be allowed after this stage, subject to the approval of the court. The terms of the common law caution would also require to be considered, especially if it is intended that inferences may be drawn from silence or from failure to state any substantive defence at the time of arrest or interview.

Question 2

What are your views on Lord Carloway’s recommendations for the police no longer to be required to charge a suspect with a crime prior to reporting the case to the Procurator Fiscal? How is this best achieved in practice?

Traditionally under Scots Law a person who has been arrested and charged was under the protection of the court. Once charged, the accused was considered subject to judicial protection, and thereafter, any questioning of him relating to the crime with which he has been charged was viewed as improper. The charge was seen as clearly demarcating the point when someone has in reality become the accused, rather than a mere suspect. The effect of Cadder and subsequent cases, particularly Ambrose, is to relegate the importance of the charge in its technical sense, and to elevate the importance of being a suspect, particularly one who is in police custody at the time of the questioning. The protection available under Article 6 applies whenever a person is “charged” but this does not mean “charged” in the technical sense implied by this question. As the court put it in Ambrose, para 62, “It is necessary “to look behind appearances and investigate the realities of the procedure in question”. A person is “charged” for the purpose of article 6 from the moment when his position is “substantially affected”. As Lord Hope put it in Ambrose “The moment at which the individual is no longer a potential witness but has become a suspect provides as good a guide as any as to when he should be taken to have been charged for the purposes of article 6(1).”

The result is that where a suspect has not been charged, but is interrogated in police custody, his answers will not be admissible unless he has been offered legal advice. Where a suspect is interrogated in circumstances where his freedom of movement is not curtailed, the admissibility of any answers will depend on whether the whole circumstances surrounding that questioning were fair. The critical feature in either case, however, is that he is someone who is a suspect, rather than a witness, and that categorisation does not depend on the whether he has been charged, or even when a sufficiency of evidence has been identified. In these circumstances, we see little reason to retain a requirement for a formal charge as a precursor to the reporting of a case to the Procurator Fiscal. Nevertheless when a charge is made, it continues to be an important stage in the investigation, as we explain in paragraph18 below.

Question 3

Do you agree that a suspect in a criminal investigation, who has not been detained or arrested, does not require any statutory rights similar to those conferred had that person been arrested and detained?

Yes. Such a person should be cautioned and thereafter the admissibility of any statements which he makes will be governed by an assessment of whether what took place was in the circumstances fair. Again, as it was put in Ambrose, the question will be “whether, taking all the circumstances into account, it would be fair to admit the whole or any part of the evidence.”

Question 4

What are your views on the recommendation that a suspect should be detained only if it is necessary and proportionate having regard to the nature and seriousness of the crime and the probable disposal if convicted?

Question 5

Do you agree with Lord Carloway’s recommendation that the maximum time a suspect can be held in detention (prior to charge or report to the procurator Fiscal) should be 12 hours?

Question 6

What are your views on whether this 12 hour period could be extended in exceptional circumstances? How could this be regulated appropriately?

Question 7

What are your views on the need for the proposed 12 hour period of detention to be reviewed after 6 hours by a senior police officer?

These four questions will be answered together. We agree with the general proposition that a suspect should be detained only if it is necessary and proportionate having regard to the nature and seriousness of the crime and the probable disposal if convicted. In our original response to the Carloway review, we recommended that a period of 24 hours should be the maximum time a suspect could be detained prior to charge or report to the PF but that there should be no provision for any extension. We considered that such a period might be required to enable police to carry out investigations of the type subsequently referred to in paragraph 5.2.19 of the Carloway Review’s report and to allow for the considerations subsequently referred to in paragraph 5.2.22 of the report. We acknowledge however, that the information provided by ACPOS to the Carloway Review suggests that there have hitherto been very few cases in which an extension beyond 12 hours has been required. For that reason we agree that a period of 12 hours should be sufficient. However, we do consider that it is likely that there will be some few, no doubt rare cases, in which 12 hours might not be sufficient. For that reason we consider that there should be provision for an extension of the period to a maximum of 24 hours, but subject to the approval of the court. Where an extension is required, any extension should not be at the hands of any senior officer but should be by warrant of the sheriff. As to the suggestion that a senior officer should review the detention after 6 hours to see that it continues to be justified, we are not persuaded that this is necessary. Given the observations in the report (para 5.2.34) to the effect that “The changes in available investigatory tools, such as CCTV footage and DNA, in the accuracy of police reporting and the effect of Cadder all point towards the necessity of a longer period than the original six hours for initial investigation, including questioning.”, we are surprised that it has been thought necessary to incorporate a review element after 6 hours. If the reality is that 6 hours is unlikely to be adequate in most cases, it seems an unnecessary burden to impose a review after the lapse of that time.

Question 8

What do you consider the most effective way of ensuring that no person should be detained in custody beyond 36 hours before appearing before a Court, i.e. over the weekend period?

Are there any practical difficulties to be overcome in delivering a model that achieves this?
Bearing in mind the desire for suspects to be held for as short a period as possible, current ECHR case law which indicates a limit of 4 days, and affordability issues, do you consider there to be an alternative time period to the 36 hour recommendation before suspects appear before a Court?

We agree that the appearance in court of a person detained in custody should take place no later than the first court day after charge or notification of intention to report to the PF. We agree that police should be encouraged to report custody cases as soon as practicable and that the Procurator Fiscal service should be encouraged to process such cases as speedily as possible, recognising that there may be staffing and resource difficulties from time to time. We consider that there would be major cost implications in the introduction of regular Saturday courts and agree with the report’s conclusion not to make such a recommendation. However, we understand that Saturday custody courts are occasionally held when bank holidays etc would result in an overlong remand over the weekend and recognise the merits in such ad hoc arrangements. We agree with the conclusion of the report that if such courts are necessary from time to time to ensure that appropriate time limits are met, then so be it.

Question 9

What are your views on the police having the ability to hold an accused for court and report a case to the procurator fiscal without first charging the suspect?

See our answer to question 2. There are cases in which there would be much to be said for the charge against a person to be formulated by the procurator fiscal rather than the police.

Question 10

Do you agree with Lord Carloway’s recommendations that the police should be able to liberate a suspect from custody on conditions, referred to as investigative liberation? What are the practical issues with this and what comments do you have about conditions and safeguards?

We are in general agreement with Lord Carloway’s recommendations relating to investigative liberation, for the reasons he gives.

The practical issues will be:

The suspect absconding
The suspect tampering with evidence, hiding evidence, or destroying it
The suspect intimidating witnesses

These risks will obviously have to be weighed up by the police officer in charge of the investigation when deciding whether or not to grant investigative liberation. We do not envisage any disadvantage in conferring such a power upon the police, assuming that the legislature stipulated standard conditions to be attached to “police bail” and permitted the addition of special conditions, subject to a right of appeal to a sheriff within 7days of release against the imposition of any special condition (cf our Response to the Carloway Review Answer 19). Such conditions might include:

Reporting to a police station at regular intervals
Prohibitions against entering particular geographical areas or approaching/contacting certain people
Surrender of passport

The possibility of misconduct will not be eliminated, but breach of a condition would trigger an appropriate sanction.

Question 11

Lord Carloway suggests that a limit of 28 days be set on the period that the police can liberate a suspect on investigative liberation. Do you think that 28 days is sufficient in all cases? Please explain.

A limit of 28 days might be thought by some to be too short in cases of, for example, money laundering, fraud, embezzlement. The reality is that the groundwork in such cases ought to be carried out before a suspect is detained for questioning. Any supplementary investigation which is required before questioning the suspect should be able to be carried out within 28days. We therefore support the proposal of a limit of 28days.

Question 12

Are there practical issues with the police advising the suspect of a time and place for a return to the police station, at the point investigative bail is granted?

In our view there should be no practical difficulty in giving the suspect the information about the time and place for a return to the police station. Practical problems may arise when the suspect fails to appear at the appointed place and time.

Question 13

What are your views on the recommendation for access to a lawyer to begin as soon as practicable after the detention of the arrested suspect, regardless of questioning?

What do you see as the purpose of access to a lawyer when questioning is not anticipated?
What do you consider to be the best way of providing legal advice for suspects as soon as practicable after detention, whilst ensuring it is effective, practical and affordable?

We agree that there should be access to a lawyer as soon as practicable after the detention of the arrested suspect, regardless of questioning. In this context assistance may be found in The Carloway Review at pages141 to 149. The focus of the Supreme Court jurisprudence so far has been on “interrogation”. In Cadder v HM Advocate 2010 SCCR 951 at paragraph70, Lord Rodger emphasised the narrow base of the Salduz case (the need to protect the right against self-incrimination, and the right of access to a lawyer “from the first interrogation of the suspect rather than from the time when he is taken into custody”). So far, the right of access to a lawyer has been limited to these circumstances or to circumstances where freedom of action has been substantially curtailed (Ambrose v Harris 2011 SCCR 651). Thus Lord Carloway’s recommendation appears to go beyond the Supreme Court jurisprudence as it has developed hitherto. However we consider that the recommendation is justified. We find the rationale set out in Chapter6 of The Carloway Review persuasive. Some of the observations in Ambrose about the vulnerability of a particular individual in custody are relevant (see for example Lord Kerr at paragraph142). Our view is therefore as follows:

The purpose of such access when questioning is not anticipated: A lawyer can give the arrested suspect general advice about procedures, conditions, and time-scales. All such information would be helpful to him. A lawyer can also check whether his client is being properly treated; make complaints on his behalf if necessary; obtain medical assistance if necessary; act as a means of communication between the arrested suspect and his family or colleagues; and generally provide assistance and support.
The best way of providing legal advice as soon as possible after detention: The best way is the attendance of the arrested suspect’s lawyer (or a duty lawyer) at the police station. However that may not always be practicable or affordable. Alternatives include confidential telephone or telephone-conferencing facilities in a private sound-proof room, or the provision of confidential e-mail or text facilities.

Question 14

Do you foresee any difficulties with the recommendation that the standard caution prior to the interviewing of suspects outwith a police station includes information that they have a right to access a solicitor if they wish? If so, please explain what these are.

No.

Question 15

Lord Carloway recommends that it is for the accused to decide on the way legal advice is provided (by telephone, in person etc) and whether their solicitor is present during a police interview. Do you agree with this approach? If not, please give reasons.

Are there any additional considerations for the form of legal advice when questioning is not anticipated?

We agree with Lord Carloway’s recommendation. In our view, there are no additional considerations for the form of legal advice when questioning is not anticipated.

Question 16

It is proposed that the right to waive access to legal advice, and the expression and recording of this, should be set out in legislation – do you agree? If not, please give reasons.

Lord Carloway also proposed that this right can only be waived once a person is fully informed of the right – what are your views on this?

We are content that the right to waive access to legal advice, and the expression and recording of this, should be set out in legislation. We agree that the right should only be waived once a person is fully informed of the right, with the rider that the person giving the relevant information need not be a lawyer.

Question 17

Do you agree with Lord Carloway’s recommendation that the practice of only enrolled solicitors giving advice to suspects should continue? If you disagree, please set out an alternative approach.

We agree with this recommendation. What a suspect does or says may be highly significant. The advice given to him is therefore very important, and in our view should not be given by anyone other than an enrolled solicitor (or counsel).

Question 18

Do you agree that the police should be allowed to question a suspect after charge (subject to the permission of the court and any conditions they apply), as outlined in the recommendations? Please explain.

No. As we noted in Answer16 of our Response to The Carloway Review:

“The charge marks an important stage in a police investigation, namely the moment when the police have sufficient evidence to satisfy them that the individual being questioned has committed an offence. Once someone has in reality become the accused (and not a mere suspect) he should be protected from further police questioning. We do not accept the suggestion that there is ‘no reason in principle for prohibiting police questioning even between the charge and trial’. Once charged, the accused is subject to judicial protection. He [should not be] open to judicial questioning (except to the limited extent of a judicial examination.”

After all, the police will have had ample opportunity to question that individual, including an opportunity to release him on investigative liberation for 28days, and then question him again. Thus to permit the police to continue questioning him after being charged (even with the court’s permission, or subject to certain conditions) would in our opinion violate the rule that a person charged with (and not merely suspected of) a crime should not be questioned by the police such that he might incriminate himself. The police can continue making other investigations, such as questioning witnesses, carrying out searches, conducting scientific tests: but they should not in our view be permitted to continue questioning the person charged.

Question 19

Do you agree that the procedure of Judicial Examination should be removed, whilst introducing provisions to allow the Crown to apply to the court to question a suspect after charge, as outlined in the recommendations? Please explain.