This is the first in a series of posts looking at the Carloway Review consultation document. It has been out for some time and the deadline for responses is fast approaching should you wish to submit a formal response to the consultation. I have not answered the questions in the order they appear in the consultation, but rather in the order that I chose. The text below are my thoughts based on my knowledge of the current position, jurisprudence from the European Court of Human Rights and also what I have read on the systems in other jurisdictions.
When should a suspect’s right to legal assistance arise?
The first of the questions raised by Lord Carloway in His Lordship’s consultation document is that I have decided to provide my thoughts on is the above one, and is a particularly good place to start. For the purpose of answering this question, and to avoid things getting to complex, “arrest” will include detention under s.14 Criminal Procedure (Scotland) Act 1995
The right of a suspect to legal advice should begin the moment they are arrested by the police and no questioning by the constable in relation to the alleged offence should take place until such times as the suspect has had a consultation or waived their right to a consultation.
Difficulties arise where the suspect volunteers information to a constable before being able to seek legal assistance, for example while being transported to custody for questioning. In these circumstances the constable should at first remind the suspect that they are under caution and advise them that they are entitled to the assistance of a Solicitor prior to making any statement or answer questions regarding the matter for which they have been arrested. The constable should refrain from putting any questions to the suspect, but a record of all that is said (including by the constable) should be recorded in the Constable’s notebook and where possible signed by the suspect.
A person attending a police station (or any other place) for the purpose of being interviewed by a Constable on suspicion of having committed a criminal offence should also be entitled to legal assistance at the police station if they have not had the opportunity to seek advice prior to being questioned by a Constable. At anytime during questioning by a constable such a suspect can seek advice from a solicitor.
All legal advice given to suspects at the police station (or other place where they are being detained) should be given at the cost of the state.
Should there be a statutory provision on the waiver of rights?
There should be a standard procedure for waiving the right to consult a solicitor. The most prudent way would probably be by way of a standard form used across all police forces and agencies that arrest and detain individuals in Scotland. The rights the suspect has in relation to solicitor access should be clearly set out on this form.
Those who waive their right should be able to, at any stage, change their mind and request consultation with a solicitor. Suspects should be advised of this at the start of any questioning and also at the time they initially waive their right to a solicitor. Any questioning that has began should immediately cease upon the suspects request to consult a solicitor and must no recommence until such times as the suspect has consulted with their solicitor, or has waived the right again.
The ability to waive the right to legal assistance should be written into statute as should to right of the suspect to change their mind and seek assistance from a Solicitor.
Suspects under the age of 16 should not be permitted to waive their right to legal assistance. In cases involving suspects between the age of 12 and 16 legal assistance should be sought by the police for the suspect upon arrival at custody and the suspect should be notified that they will get legal assistance. For those under the age of 12 years legal assistance should be arranged upon the arrival of an appropriate adult.
I have based the age limits above with the provisions of the Age of Legal Capacity (Scotland) Act 1991 in mind.
The Carloway Review consultation document can be read here [pdf] and the deadline for responses is Friday 3 June 2011.