Carloway Review: Initial thoughts

Yesterday Lord Carloway published a consultation document as part of the review being conducted into Scottish criminal procedure and evidence following the decision in Cadder v HM Advocate.   It is clear from the decision in Cadder that at least one element of criminal procedure in Scotland had fallen below the standard required to meet our international treaty obligations and it was a sensible decision by the Cabinet Secretary to instigate some form of review to ensure that the system complies with Convention rights.  It is essential that another Cadder situation is avoided.

The review by Lord Carloway is an important step for Scots Law and it gives us an opportunity to ensure that the criminal justice system in Scotland remains world-class.  It’s certainly my view that the Scottish Parliament should invest some time looking at Criminal Justice in Scotland over the next session encompassing the Carloway Review as well as matters such as sentencing.

It is my intention to answer the questions posed by Lord Carloway on this blog, but before I do that I wish to give some consideration to my own views.  However, as I was skimming through the consultation document yesterday I couldn’t help feel that the questions were suggestive of Scots Law adopting the provisions to be found within the Police and Criminal Evidence Act 1984 (PACE).  This would be a bad idea and is something that should be avoided.

The history of the Scottish Criminal Justice system is quite different from that of England and Wales and the way in which it has developed has been independent of England and Wales leading to different influences.  The fact that the system operates differently is not a bad thing given the distinct independent nature of Scots Law.  Any attempt to simply import PACE into the Scottish system should be avoided.  It may well be the simplest solution, but may not necessarily be the best for Scots Law.

There is, of course, nothing wrong with looking south of the border and studying how they do things down there.  We may very well be able to learn some lessons from our colleagues south of the border, as indeed they have from us in other areas of jurisprudence.  However, we should not solely focus our attention on the system operated in England and Wales.  There are many other jurisdictions out there and we should also be looking at them all when considering how we might improve our system.  It may be that we borrow ideas from PACE as well as other jurisdictions around the world to help produce a world class system that enables the police to do their job while protecting the fundamental rights of those who they police.

We shouldn’t be afraid of the distinct identity of Scots Law; indeed it is something we should celebrate.  We have often led the way for our colleagues south of the border and this is something we should not forget.  I recently had the privilege of hearing Lord Hope speaking at the inaugural SYLA annual lecture on this very subject and His Lordship provided some interesting examples of where Scots Law has lead the way.  His Lordship’s speech is available on the Supreme Court website and is worth a read.

My initial thoughts on the Consultation document are that the questions posed by Lord Carloway are valid and important ones, but we must avoid simply adopting PACE as the easy option.  Let us find the Scottish solution and ensure that we keep the distinct identity of the Scottish system.

More information about the review can be found on the Carloway Review website.