The Carloway Review was published on 17th November 2011.
Please see below for the list of recommendations from the report:
LIST OF RECOMMENDATIONS
Arrest and Detention
A suspect, who is not detained or being questioned, should not have a distinct legal status with statutorily defined rights.
Section 14 detention should be abolished and the only general power to take a suspect into custody should be the power of arrest.
Arrest should be defined as meaning the restraining of the person and, when necessary, taking him/her to a police station.
Arrest should be distinguished from detention, which should be defined as the holding of a suspect in custody once he/she is at a police station and pending possible appearance in court.
The ground for both arrest and subsequent detention should be defined in statute as reasonable suspicion that the person has committed a crime.
Legislation should make it clear that, although a person must be advised of the reason for his/her arrest and detention and of any charge against him, it is not necessary for an arrest or detention to be accompanied by a charge.
The reason for arrest and subsequent detention should be stated to be to bring the person before the court, by way of continued investigation into the merits of the case and reporting to the procurator fiscal with a view to service of a summary complaint or a petition in accordance with current practice.
Statute should provide that a suspect should not be detained unless it is necessary and proportionate and in particular that the suspect:
(a) is liable to escape;
(b) will not appear at an appointed court diet;
(c) is likely to commit further crimes; or
(d) may destroy evidence, interfere with witnesses or otherwise obstruct the course of justice.
It should be an express statutory requirement that, in determining whether a suspect’s detention or continued detention is necessary and proportionate, the nature (including level of seriousness) of the crime and the probable disposal if convicted must be taken into account. Only in exceptional circumstances should a person be detained where the charge does not involve an imprisonable offence.
It should be made clear that the police have power to question a suspect and to carry out any other lawful investigative procedures notwithstanding the suspect’s arrest and detention, in the same way as they have at present with a person in section 14 detention.
No court warrant ought to be required to arrest and detain for imprisonable offences on reasonable suspicion.
For non imprisonable offences, such a warrant should be a requirement unless the police officer is of the view that, were such a warrant to be obtained, the suspect:
(a) would be likely to abscond; or
(b) may destroy evidence, interfere with witnesses or otherwise with the course of justice pending any court appearance.
Period of Custody
Section 17 of the Police (Scotland) Act 1967 should be amended so that the duty of the police is to ensure that persons arrested are not unnecessarily or disproportionately detained in custody.
There should be a requirement that a person cannot be kept in police custody for more than twelve hours without being:
(a) charged; or
(b) advised that he/she is to be reported to the procurator fiscal with a view to him/her being charged with a specific offence.
There should further be a requirement on the police to review any period of detention before charge at or about six hours after detention. Such a review should be carried out by an officer of at least the rank of inspector who has not been directly involved in the investigation.
The time for appearance at court should be altered to the first court day after charge or notification of an intention report to the procurator fiscal; both the common law and section 135(3) of the 1995 Act should be amended accordingly.
It should be made explicit that there is no rule requiring the police to charge a suspect upon arrest, or once a sufficiency of evidence has been reached, and that, subject to compliance with the proposed regime in relation to arrest, detention and court appearance, the point at which the police proffer a charge or decide to report the suspect to the procurator fiscal is a matter for their discretion.
The period of time during which suspects are kept in custody should be kept under review by the COPFS. If it transpires under the new regime that suspects are being kept in custody without court appearance for more than thirty-six hours from the time of their arrest, measures (e.g. Saturday courts) should be introduced to prevent that from occurring. Meantime consideration must be given to the reorganisation of the times of existing workloads in the procurator fiscal service and the courts.
Liberation from Police Custody
The police should be given express power to liberate a suspect from detention, pre charge/report, subject to any appropriate conditions for the purpose of carrying out further investigations. The police should not have to specify the nature of any enquiries, if that would compromise the investigation, but otherwise they should do so.
The period of liberation on such conditions should be limited to a maximum of twenty-eight days. Where this is done, the period already spent in pre charge/report detention and any future period will be aggregated and must not exceed the twelve hour maximum.
Investigative liberation should only be granted on the basis that there remains reasonable cause to suspect the person of committing the particular offence.
When it is granted, the police must provide a time and place for a return to the police station, when, of course, the rights of access to a lawyer would revive.
The conditions for liberation may include special conditions, necessary for the proper conduct of the investigation, such as prohibiting the suspect from visiting a particular area, speaking to certain people and making himself/herself available for other legitimate purposes.
The police should be given the power to liberate a suspect after charge or intimation of any intention to report the suspect to the procurator fiscal, on special conditions, including a curfew.
Where the police do not intend to recommend opposition to bail, the suspect should be released by them, either unconditionally or on an undertaking to appear at court on a specified future date. Where the police are uncertain whether or not to recommend bail they should seek the direction of the procurator fiscal.
The procurator fiscal should have an express power to review police decisions on liberation and to liberate also on standard or special conditions.
The exercise of the powers to liberate at any stage prior to appearance in court should be subject to a summary process, whereby the suspect may make an application to the sheriff for a review of any liberation conditions. The sheriff should be able to vary a condition or to terminate the liberation on conditions altogether.
Breach of conditions of liberation should be a criminal offence and breach of any condition of an undertaking should remain a criminal offence.
Legal Advice
There is no need to require the police to secure access by a suspect to a lawyer outwith a police station and no legislation is required in that regard.
Part of the standard caution prior to the interviewing of suspects outwith a police station should include the information that he/she has a right of access to a solicitor if he/she wishes.
The provisions of the 1995 Act (s 15A(3)) introduced by the 2010 Act, which entitle a suspect to have access to a solicitor (a) before any questioning at a police station and (b) during questioning, require to be amended to provide that such access is available, regardless of questioning, as soon as practicable after (under the recommended regime) the detention of the arrested suspect at the police station.
A “letter of rights” should be drafted without delay. Every arrested and detained suspect should be provided with a copy of that letter unless there are particular reasons not to do so.
It should continue to be the case that access to a lawyer means only to an enrolled solicitor.
The legislation should be amended to make it clear that, although it is the police officer’s obligation to ensure that “intimation” of arrest, detention and request for assistance is made, it need not be made specifically by a police officer or to a solicitor in person. It should allow for forms of contact other than by telephone;
The right of access to a lawyer does not extend to the provision of assistance from a solicitor of the suspect’s choice and no alteration to the legislation is required in this regard. Where the suspect requests access to a named solicitor, however, in accordance with current practice, efforts should be made to secure the attendance of that lawyer within a reasonable time. No legislation is required in this area.
In exceptional circumstances, the police must be able to delay all, or any part of, the person’s right of access to a lawyer or to withhold all, or any part of, that right. But there should not be any statutory definition of what is meant by “exceptional circumstances”.
There is no need to set out in legislation what the role of the solicitor may be. The University Law Schools and the Law Society should be encouraged to formulate guidance for solicitors in advising clients in a police station. Understanding the role of the solicitor in that regard should be part of COPFS and police training.
Subject to what is determined to be reasonable remuneration in legal aid cases, it is for the suspect to decide whether the advice from a lawyer should be provided in person, or by other means such as by telephone or internet video link and whether he/she requires a solicitor to be present during any interview.
Legislation should expressly provide that adults who are not vulnerable may waive the right of access to a lawyer. It should state that waiver must be express and recorded. The right cannot be waived unless and until the person has been fully informed of the right.
Questioning
There is no need for statutory provision on the purpose of questioning.
The prohibition on police questioning after charge should be abolished and there should be a process whereby the police, where they feel there is good reason to question a suspect after he/she has been charged or reported to the procurator fiscal, can apply to a sheriff for permission to do so prior to a first appearance at court. In particular such an application:
(a) must state the grounds for allowing questioning post charge; and
(b) can be made, and responded to, remotely by electronic means.
The Crown should also be entitled to make such an application to the court in the course of a prosecution, at the first appearance before the custody court; or at any time prior to the trial diet.
In all such cases, the Court should have the discretion to place whatever conditions, constraints or limits on such further questioning it sees fit.
Legislation should provide that courts have a general power to exclude evidence, including statements made by suspects to the police during the course of an interview or otherwise if the admission of that evidence would result in the trial being rendered unfair in terms of Article 6, including unfair by reason of an infringement of a suspect’s right to silence or his/her privilege against self incrimination. Consideration should be given to the abolition of all other rules for the exclusion of relevant evidence in criminal cases.
The common law rules of fairness concerning the admissibility of statements by suspects should be abolished in favour of the more general Article 6 test.
There is no need for statutory provision on pre-interview briefing of suspects.
The procedures of Judicial Examination and the emission of declarations should cease by, inter alia, repeal of the relevant provisions of the 1995 Act.
Child Suspects
For the purposes of arrest, detention and questioning, a child should be defined as anyone under the age of 18 years. This means that the current provisions concerning notification to a parent, carer or other responsible person and these persons having access to a child suspect should be extended to all persons under 18 years of age.
There should be a general statutory provision that, in taking any decision regarding the arrest, detention, interview and charging of a child, whether by the police or the procurator fiscal, the best interests of the child shall be a primary consideration.
All children should have the right of access to a parent, carer or responsible person if detained and, in any event, in advance of and during any interview, provided that access can be achieved within a reasonable time. The police should be able to delay or suspend that right in exceptional circumstances.
The general role of the parent, carer or responsible person should be defined in statute as consisting of the provision of any moral support and parental care and guidance to the child and to promote the child’s understanding of any communications between him/her, the police and his/her solicitor.
Where the child suspect is under 16, he/she must be provided with access to a lawyer, and neither he/she, nor a parent, carer or responsible person can waive that right.
Where the child is under 16, he/she must be provided with access to a parent, carer or responsible person, and he/she cannot waive that right.
Where the child is 16 or 17 years old he/she may waive his/her right of access to a lawyer but only with the agreement of a parent, carer or responsible person.
Where the child is 16 or 17 years old he/she may waive his/her right of access to a parent, carer or responsible person. In such cases he/she must be provided with access to a lawyer.
Vulnerable Adult Suspects
There should be a statutory definition of a “vulnerable suspect”. This should be, in broad terms, a person who, in the view of the police officer authorising the suspect’s detention, is not able to understand fully the significance of what is said to him/her, of questions posed or of his/her replies because of an apparent (a) mental illness; (b) personality disorder; or (c) learning disability.
Statute should define the role of an appropriate adult as being to assist in ensuring that effective communication takes place between the suspect, the police and the suspect’s solicitor (if any) and that the suspect is not disadvantaged, relative to the non-vulnerable suspect, in the detention and interview processes by reason of his/her vulnerability.
Statute should provide that a vulnerable suspect must be provided with the services of an appropriate adult as soon as practicable after detention and prior to any questioning. He/she should only be able to waive his/her right of access to a lawyer if the appropriate adult also agrees to this.
Statute should define, at least in broad terms, the qualifications, professional or otherwise, necessary for a person to be an appropriate adult. The Review has not had sufficient material upon which to form a view on this subject, and the Government should carry out further research in that regard.
Corroboration
The current requirement for corroboration in criminal cases be abolished.
In solemn prosecutions where there is no corroboration of testimony, there should be no requirement on the judge to warn the jury of any dangers perceived purely as a consequence of the absence of such corroboration.
Sufficiency of Evidence
The test for sufficiency of evidence at trial and on appeal should remain as it is now, other than that, as already recommended, the requirement for corroboration should no longer apply.
Exculpatory and Mixed Statements
The distinction between incriminatory, exculpatory and mixed statements should be clarified so that, so far as statements made to the police or other officials in the course of an investigation are concerned, no distinction is drawn between them in terms of admissibility. All statements made by accused persons to such persons in that context should be admissible in evidence for all generally competent purposes, including proof of fact, in the case against that accused except where the content of a statement would otherwise be objectionable.
Further consideration should, in due course, be given to whether this rule should be applied to all pre trial statements by accused persons.
Adverse Inference
No change is made to the current law of evidence that prevents inferences being drawn at trial from an accused’s failure to answer questions during the police investigation.
Appeal Procedures
The High Court should be provided with a statutory provision to impose sanctions, including that to dismiss an appeal or to order that particular steps should not be paid for out of public funds, to enforce time limits and its own procedural decisions
The 1995 Act should be amended to provide that:
(i) where an applicant fails to lodge a Note of Appeal timeously, having lodged a Notice of Intention to Appeal, his/her appeal will be deemed to be abandoned;
(ii) where an applicant seeks to lodge a Notice of Intention to Appeal late or seeks to have his/her abandoned appeal revived by lodging a Note of Appeal, having earlier failed to do so, the court may allow this but only if:
(a) special cause is shown why a late Notice or Note should be allowed; and
(b) the grounds of appeal are such as disclose that, were the appeal to be received late, the appeal would probably succeed on the grounds stated;
(iii) discussions on whether to grant leave to appeal late shall all take place in chambers without the requirement of an oral hearing unless the Court otherwise directs; and
(iv) the decision of the High Court refusing to allow a Notice of Intention to Appeal or a Note of Appeal to be received late is final.
Where an application for leave to appeal late is granted, the Court must give a reason for that decision in a form capable of being communicated to any victim of the crime or next of kin of any deceased.
The processes of Bill of Suspension and Bill of Advocation should be abolished. The provisions of sections 74 and 174 of the 1995 Act should be expanded to permit appeals from any pre trial decision of a court of first instance but only with leave of that court. Where the decision has the effect of terminating a prosecution by acquitting the accused of a charge, or part of a charge, or otherwise the Crown should have the right of appeal without leave.
Section 176 of the 1995 Act should be amended to permit an applicant for a stated case based solely on the incompetency of a conviction to request the court to authorise that the appeal proceed by Note of Appeal rather than Stated Case. The court should be permitted to grant such authorisation. Other than in relation to the quorum of the Court, the appeal should proceed in the same way as a Note of Appeal against sentence.
The same test for leave to appeal late as is suggested for solemn cases should be applied to summary cases. It ought also to be made clear that, in accordance with current practice, there is no appeal from the decision of a single High Court judge refusing leave to appeal late in a summary case.
The High Court’s nobile officium should continue but there should be a statutory provision that applies the same finality to summary case appeal decisions that section 124 of the 1995 Act provides in relation to solemn cases.
Further consideration by the court and the legal profession should be given to whether the practice of trial counsel not appearing in the appeal proceedings constitutes a problem and, if so, what steps should be taken to solve that problem.
Finality and Certainty
Section 194 C(2) of the 1995 Act (as inserted by Section 7(3) of the 2010 Act) which introduces a requirement on the SCCRC to consider “finality and certainty” in considering a reference, should be retained. There should, however, be no further statutory listing of the criteria included in the “interests of justice” test for SCCRC references.
Section 194 DA of the 1995 Act (as inserted by Section 7(4) of the 2010 Act) which provides a “gate-keeping role” for the Appeal Court in relation to references from the SCCRC should be repealed.
When considering appeals following upon references from the SCCRC, the test for allowing an appeal should be that:
(a) there has been a miscarriage of justice; and
(b) it is in the interests of justice that the appeal be allowed.
Chair: Jim Ferguson
