Criminal Procedure: Time to start from scratch?

Criminal Procedure in Scotland is broadly governed by the Criminal Procedure (Scotland) Act 1995.  This Act sets out much of the way in which a criminal case is conducted from initial contact by the police with a suspect and/or witness through to the rules governing appeals against conviction and sentence.

The Act is incredibly out of date and has been amended on a number of occasions.  The first major challenge to the provisions of the 1995 Act was the now infamous Cadder case which focused on sections 14 and 15 of the 1995 Act, and in particular the failure of the law to provide for a suspect detained under section 14 of the 1995 Act to have access to legal advice and representation.  In that case the United Kingdom Supreme Court rejected the decision of the High Court in McLean v HM Advocate and held that the failure of the 1995 Act to provide for a suspect detained under Section 14 of that Act to have access to legal advice while in custody was a breach of Article 6 of the European Convention of Human Rights (ECHR).

The Cadder decision resulted in amendments being rushed through the Scottish Parliament which provided for, inter alia, the provision of access to a solicitor by a person detained under Section 14 of the 1995 Act before they were questioned by the police.

The Criminal Justice and Licensing (Scotland) Act 2010 made changes to the 1995 Act some of which have now come under scrutiny by the High Court.  In Cameron v procurator Fiscal, Livingson the Appeal Court held that the amendment in question was a breach of Article 5 of the ECHR.  The amendment in question was the insertion of paragraph (cb) into section 24(5) of the 1995 Act.  Section 24(5) of the 1995 Act sets out the standard conditions for a person released on bail.  The Court can add further conditions to that bail, but the standard conditions will always apply.  Paragraph (cb) provided that as standard a person who was on Bail must do two things if reasonably required to do so by a Constable.  Those things were (i) participate in an identification parade or other identification procedure; and (ii) allow any print, impression or sample to be taken from the accused. The remaining standard bail conditions are fairly, well, standard and cover things that one would reasonably expect such as not committing other offences, not interfering with witnesses, turn up at court when instructed to do so etc.  However, the insertion of paragraph (cb) into the standard conditions is slightly controversial.

Previously such conditions as those found within paragraph (cb) would have been added by the judge presiding over the bail application.  The Court would have to have been satisfied that such conditions were necessary.  However, now anyone on Bail would be required to adhere to such conditions and they are quite invasive.  Sample could cover anything from a urine sample, to a DNA swab to a blood sample, all of which are invasive procedures and normally if taken without consent may well constitute an assault.

In any event, this blog post is not about the latest decision per se, but is more about the 1995 Act.  It is not fit for purpose.  Criminal procedure in Scotland has fallen behind in terms of adhering to basic standards of human rights.  Successive Scottish Parliaments and Administrations have failed to ensure that Scotland’s procedures in bringing offenders to justice and protecting the public comply with human rights.

The two pieces of legislation passed in 2010 to amend the 1995 Act, particularly the post-Cadder emergency legislation, are nothing other than sticking plasters over a rotting limb.  What is required is an urgent, full-scale review of the 1995 Act and for it to be subsequently repealed and replaced with a brand new piece of legislation.

The review recently completed by Lord Carloway at the request of the Justice Secretary is a good starting point for this urgent and important piece of work.  However, it is important that the 1995 Act is not merely amended with whatever recommendations are accepted from Lord Carloway’s report, but that the accepted recommendations form the basis of a brand new piece of legislation that aims to codify the current law (including the case law).

It is important that this review canvases the opinions of all criminal justice stakeholders from victims groups to criminal justice social workers, solicitors, Counsel, COPFS and anyone else who has an opinion.  It’s important that criminal procedure keeps up-to-date with developments in human rights.

I do hope that in response to this latest judgment that the Justice Secretary and First Minister do not launch a hysterical attack against the judiciary and announce a serious attempt to look at criminal procedure in Scotland.  I hope that they appoint a review team who are knowledgeable and experienced in the criminal justice system and that any review team is not confined to just judges and lawyers but that representatives from all the major stakeholders are present to ensure that we have a system that is fit for purpose and is beyond challenge from a human rights perspective.

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