Initial views: Lord Carloway’s report

Lord Carloway today published his report into criminal procedure and evidence in Scots law following a review of around 12 months.  The recommendations made by Lord Carloway were mostly expected, but one has caused particular controversy within the legal sector already: the recommendation that the requirement for corroboration be abolished in Scots law.

The report is in excess of 400 pages in length and it would be foolish to comment in any great detail or come to a definitive position on the content of the report at this stage.  There is a lot to take in and digest.  However, there are some things that can be said initially about some of the recommendations that have been made in the report.

Arrest and Detention

It is certainly a good idea to move away from the idea of detention an arrest being separate.  Providing a constable with a general power of arrest where reasonable suspicion exists is probably the way forward in terms of Scots law.  The move to reduce the maximum period of detention from 24 hours to 12 hours is also welcome.  There was no real evidence at the time the Scottish Parliament passed the emergency legislation last year following the Cadder case to increase the maximum period of detention to 24 hours.  The recommendation to require a custody review to take place at six hours is also welcome.  The evidence coming from the police is that in most cases post-Cadder detention has been less than six hours anyway.

The recommendation to allow the police to liberate a person from custody either pending further investigation or while waiting to go before the court after charge or report is something that also appears to be a sensible recommendation.  The recommendation that the maximum a person can be conditionally liberated from police custody pending investigation to 28 days appears to be immensely sensible.  Looking south of the border to England the lack of a maximum period to which a person can be bailed pending further enquiries is resulting in some people (albeit a very small number) being on police bail for many months, even as many as 12 months.  That represents a significant burden upon a person who may not have committed the crime being investigated and is, as far as the law is concerned, an innocent person.

The recommendation that periods of detention broken by periods of conditional liberation by the police should not exceed the twelve hour maximum does appear to be a sensible recommendation initially.  This would certainly prevent any abuse of detention by the police and ensure that they are only detaining a suspect when it is absolutely necessary and they have a purpose for doing so.  It does seem rather odd that currently a person is kept in custody while investigations are ongoing in what are relatively minor offences.

A route of appeal to a Sheriff against any of the conditions imposed by the police on a person whom they are liberating is an important safeguard to ensure that a suspect who may not have committed any crime, and is innocent in law, is not overburdened by restrictions upon their liberty.

Investigation

The recommendations made in the report that relate to waiver, vulnerable adults and children appear, initially, as sensible.  A statutory framework for waiver would ensure that a standard procedure is applied across the country would appear to be a sensible proposition.

Evidence

At a first glance the recommendation to abolish the requirement for corroboration appears to be an unsupportable suggestion.  Throughout the day the Law Society of Scotland as well as individual solicitors have come out against such a move citing it as an important safeguard in the Scottish legal system.  The fact that it is an “archaic” rule and that Scotland is in a minority by retaining the rule are not, I submit, strong enough arguments for its abolition.

Appeals

The recommendation to repeal the power granted to the High Court if Justiciary last year to be able to refuse to hear an appeal following a reference by the SCCRC is to be welcomed.  The provision was not properly considered before being enacted during the passing of the emergency legislation last year and fundamentally undermined the role of the SCCRC.

The above are by no means detailed or settled points of view on the content of Lord Carloway’s report.  It will no doubt take several weeks to properly read and digest the content of the report so expect more on this issue in the weeks and months to come.

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