Category: Carloway Review

Another blog on Corroboration

Corroboration has been part of the law of Scotland for many, many centuries. The corroborative requirement used to apply in civil cases, and not just criminal cases. The requirement for corroboration in civil cases was abolished on 3 April 1989 when section 1 of the Civil Evidence (Scotland) Act 1988 entered into force. The Criminal Justice (Scotland) Bill currently before the Scottish Parliament will see the end to corroboration in criminal cases as well.

The abolition of Corroboration in Scottish Civil cases came following a lengthy process; it began with Memorandum 46 on the Law of Evidence published by the Scottish Law Commission in 1980, which resulted in two reports. The first was report number 78 (published in 1983), entitled “Report on Evidence in cases of Rape and Other Sexual Offences”. That report resulted in Sections 141A, 141B, 346A and 346B being inserted into the Criminal Procedure (Scotland) Act 1975 (later replaced by the present statute governing criminal procedure in Scotland: the Criminal Procedure (Scotland) Act 1995) by virtue of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985. The second report was number 100, which was published in 1986, entitled “Evidence: Report on Corroboration, Hearsay and Related Matters in Civil Proceedings”. There was also a research paper by Sheriff I D MacPhail (chapters 1-5; 6-15; 16-19 and 20-25) which considered in detail the Law of Evidence in Scotland at that time.

In essence, the major reform to the Law of Evidence in Civil cases through the Civil Evidence (Scotland) Act 1988 followed an intense and lengthy period of scrutiny by the body established by law to look at reforms to the Law of Scotland. The abolition of corroboration in Scottish criminal cases is a major reform. It was inserted into a Government Bill following a brief review by a judge and a number of short consultations on Criminal Evidence and Practice (the Carloway Review). A process frequently described as an “emergency” by the Cabinet Secretary for Justice, Kenny MacAskill MSP, following the Supreme Court’s decision in Cadder v HM Advocate.

As I have already mentioned, the abolition of corroboration in Scotland is a significant piece of reform. Many areas of Criminal Evidence depend, entirely or significantly, upon there being a requirement for Corroboration. For example, in Holland v HM Advocate, the existence of the requirement for corroboration was an important factor in the Court’s determination that dock identification did not breach Article 6 of the European Convention on Human Rights. With Corroboration playing such a significant role in the Law of Evidence in Scotland, it is important that the effects of its abolition are properly considered. It is also essential that all the necessary changes to the Law of Evidence that require to be made, are made at the same time and not in various bits of emergency legislation like the disaster that was the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010, or thorough piecemeal reforms which are required following the identification of yet another problem with criminal procedure arising out of the abolition of corroboration.

While I believe Corroboration is an important aspect of our system that ought to be retained, I could foresee it being removed without any real problem to the procurement of a fair trial. However, I can only see that if it is done in the context of a properly considered report that doesn’t just look at changes that could be made to the system, but one which has also adequately considered what other changes might have to accompany those changes to ensure that the system remains fair and balanced. Removing corroboration from Scottish criminal procedure has the capability of reducing the conviction or acquittal of a person down to nothing other than the credibility of the complainer against the credibility of the accused. That is an unsatisfactory position when a conviction can result in the loss of a person’s liberty for a very long time.

We cannot allow another ‘Cadder’ situation to, which undoubtedly had a significant impact on the ability of complainers to obtain justice because of the procedural errors in the Scottish justice system. If we are to make such a fundamental change to our justice system, we must ensure that it is done in a way that ensures any consequential changes are also made to protect the rights of both complainers and accused persons.

Criminal Legal Aid Contributions, Professional Representation and Justice in Scotland

Yesterday evening the Scottish Parliament voted by a majority of 9 to pass into law the Scottish Civil Justice Council and Criminal Legal Assistance Bill into law. The Bill will now be submitted to the Queen for Royal Assent. It was a disappointing end to a hard fought campaign by a wide range of people to try and prevent Part 2 of that Bill being passed. However, it was always going to be an impossible task with the Government having a majority in Parliament.

The first part of the Bill; the establishment of the Scottish Civil Justice Council, was generally uncontroversial and was the result of a lengthy piece of work submitted to the highest levels of scrutiny. The Scottish Civil Justice Council came as a consequence to the review of civil justice in Scotland carried out by the now Lord President, Lord Gill. It is a shame that this element of the Bill was overshadowed by the second part of the Bill. Had the two been separate it is likely that the Scottish Civil Justice Council part would have received unanimous support in the Scottish Parliament.

The significant expansion of contributions to criminal legal aid as a result of this legislation will have a profound impact on justice in Scotland. I’m not going to write at great length on the merits of the Bill as I have done that in a number of posts (and others have written elsewhere much more eloquently than I have). The proposals will undoubtedly lead to a number of appeals under Article 6 of the European Convention on Human Rights (the right to a fair trial). The Government and Presiding Office (presumably with legal advice) are both happy that the contents of the Bill are compliant with the European Convention on Human Rights; however, there is the very real possibility that the contributions system will begin to give rise to “devolution minutes” once it begins to take hold in the system. That will certainly be something to keep an eye out on to see what happens in that respect.

It is clear from speaking to practitioners in person and through social media that there is a very real anger over yesterday’s result. It is just one of many things to have arisen over the last few years that have caused anger. Some of that anger is directed towards the Law Society of Scotland; particularly in their representation of the profession in these matters.

It has been reported that there was to be a challenge lodged to the Society’s position as the sole representative body of Solicitors in Scotland which will be founded upon Article 11 of the European Convention on Human Rights. I am not a solicitor and I have not had many dealings with the Law Society of Scotland. I only know what others have told me (and I’m not inclined to make my own decision purely upon the basis of third party complaints). However, it has always been something that has intrigued me about the legal profession. I’m a supporter of Trade Unions and the representative functions that they undertake. However, I’m equally supportive of a person’s right to choose their representative body (and to elect not to belong to such a body). That goes not just for lawyers, but for others who have a single statutory representative body with no choice as to who they have representing them.

I think it is only right that if people want a different representative body that this is a choice that they have. It will be interesting to see if this case goes ahead and what the outcome of it might be; it could have a profound effect on the United Kingdom extending beyond the legal profession.

The fight to ensure justice in Scotland will no doubt continue as the programme for reform of the criminal justice system continues over the coming years. There are proposals in the pipeline that will likely gain similar; if not greater, reactions from the legal profession (corroboration and contracting to name two). It’s an unsettling time in the criminal law for Scotland; but it’s an equally interesting one.

Consultation on safeguards after the abolition of corroboration

On Wednesday the Scottish Government issued a consultation document looking at some of the safeguards that might be needed to be introduced to Scots law when the requirement for corroboration is removed.

I have expressed my views on corroboration before on this blog and I do not intend on getting into that issue in any great detail here; it is suffice to say that I am a supporter of the requirement for corroboration and a subscriber to the idea that if something isn’t broken then there is no need to go and fix it. However, the Justice Secretary is clear that he wants to abolish the requirement for corroboration and that parliamentary arithmetic means that short of a rebellion by his own backbenchers (unlikely) then he will get his way. It is therefore essential that everyone engages with this consultation to ensure that the protection for the accused in a criminal trial is not diminished.

Corroboration is a fundamental issue to our justice system. The rule is not, as the media have been saying, that there must be two pieces of evidence before there can be a conviction. It is rather more complicated than that, but it essentially requires that there are two independent sources of evidence to support each of the material facts of the case. It applies in all cases before all criminal courts in Scotland.

The first thing to note about the Government’s consultation document is that it focuses almost exclusively on cases where a jury is involved. Not everyone in Scotland is tried by a jury and there is no right to a trial by jury in Scotland. The decision as to whether you are tried with or without a jury rests with the prosecutor (which has to be decided within the confines of certain rules; for instance some offences fall within the exclusive jurisdiction of the High Court of Justiciary where there is always a jury). The Government’s almost exclusive focus on jury trials means that only those accused persons who are indicted benefit from the additional safeguards introduced post-corroboration.

The vast majority of criminal cases in Scotland are prosecuted on a summary complaint. This means the cases is heard by a sheriff sitting alone in the Sheriff Court or by a lay Justice of the Peace in the Justice of the Peace Court (or if in Glasgow a legally qualified Stipendiary Magistrate). There is no jury involved and as such the vast majority of criminal accused persons in Scotland are going to miss out on additional safeguards to reflect the lack of corroboration.

The very fact that the Government has issued this consultation is a recognition by them that corroboration is so fundamental to the justice system in Scotland that to abolish it means that additional safeguards need to be introduced to ensure that the accused is not disadvantaged. If that is accepted by the Government then it applies equally to summary and solemn criminal cases. It recognises that a lack of corroboration makes it somewhat easier to convict and that something needs to be done to address the balance to ensure that it is not too easy to convict.

The specific proposals contained in the consultation document are interesting. The first is to increase the number of jurors required to be convinced by the Crown that they’ve proved their case in order to convict. Currently, the system permits a simple majority of 8 out of 15 jurors to convict. The consultation document suggests increasing this to 9 or 10. I don’t see how increasing it by one or two is sufficient. Having given it some brief thought I would think that something along the lines of 12 out of 15 would be more suitable. There needs to be at least 12 jurors for there to be a quorum in Scotland. If the number of jurors falls below 12 then that jury cannot reach a verdict. If the number was fixed at 12 this would mean that losing three jurors would require a unanimous verdict. That doesn’t seem suitable either, so as I’ve given it some thought. My (brief) thoughts have resulted in a proposal which would see the number of jurors required to convict decrease proportionally in line with the number of jurors available; ensuring that at least three-quarters of the jurors were convinced by the Crown’s case. That would mean in cases where there are 15 jurors that 12 would be required and where the jury falls to just 12 members the number required to convict would be 9 jurors.

I consider that this proposal is fair for both the accused and the prosecution. It means that the prosecution always has the same task: to convince at least three-quarters of the jury that they have proved their case beyond reasonable doubt. A fixed number would mean that in cases where jurors are lost (for example through illness) the crown’s task doesn’t get easier (for example only having to convince 60% of the jurors in one case and 75% in another). It also avoids unfairness to the Crown because they will not be in the position where they find themselves having to seek a unanimous verdict in one case and a majority verdict in another.

The other proposal in the Government’s consultation is that where a jury fails to reach a verdict that the Crown could be able to seek a re-trial of the accused. I would not support such a proposal. It is the Crown’s job to prove a case beyond reasonable doubt. If a jury fails to reach a verdict then the Crown has failed in that task. There is such a procedure in England and there have been cases where the defendant has been tried three times before the Crown finally got the verdict it was seeking. Is this fair? Should the Crown be able to repeatedly prosecute someone until it gets the verdict it wants? No, it’s not. It is simply placing too much power in the hands of the State. If the Jury fails to reach a situation whereby the required number of jurors cannot be convinced of the Crown’s case the accused should be acquitted.

In serious cases the Crown now has the opportunity of seeking a fresh trial under the Double Jeopardy (Scotland) Act 2011 where certain conditions are met. If the only reason a person hasn’t been convicted is because of the ineptitude of the Crown I don’t see why the Crown should be able to repeatedly prosecute someone. It will mean, of course, that guilty people will likely get away with their crime. However, the solution to that is for the Crown to ensure that they have the strongest possible case before prosecuting someone. Where the Crown has been unable to secure a conviction because evidence was genuinely not available to them at the time then the 2011 Act permits them to go back to the Court and seek permission to charge the accused with the crime again. Had the 2011 Act not been passed then there might have been an argument to allow a retrial procedure as proposed by the Government. However, with the existence of the 2011 Act there is no real argument for it.

The final proposal looked at in the consultation is the question of the “Not Proven” verdict. I have for along time considered that having three verdicts in Scotland serves little useful purpose and we should move to a system of having only two verdicts. Derek Ogg QC said on Newsnight Scotland (Wednesday 19 December 2012) that he had been persuaded that we should return to “Proven” and “Not Proven”. I find this persuasive; although I do consider the arguments favouring “Guilty” and “Not Guilty” to be strong. I don’t see the role for a third verdict which has the same practical meaning and effect as another. Unless the third verdict were to mean something different to the aquittal verdict there seems little point in keeping it. In my experience, what the public consider it to mean bears no reflection on the reality and it could be argued that a third verdict is simply confusing to those without an understanding of the criminal justice system. Again, I’ve explored my views on the three verdict system on this blog before in detail so I will say no more on the question here.

As I have argued before on this blog it ought to be difficult for the Crown to secure a conviction. That is not to say that it should be impossible; but the system should be weighted in such a way so as to ensure that the Crown is faced with some difficulty in securing a conviction. A conviction in a criminal court is more than simply a finding of fact; it signifies that the offender has broken society’s rules and that he/she is deserving of punishment for that offence. That finding could have a significant impact not only on the accused, but also on their family. A conviction might result in a loss of liberty or a loss of employment. Both of these situations might well have a profound effect on the family of the accused who are entirely innocent and will be indirectly punished by a loss of liberty or employment. The stakes are so high that it is essential that the State cannot easily convict people.

The Government’s consultation is open until 15 March 2013. I would encourage everyone to respond and engage with it in a meaningful way; regardless of your view as to whether corroboration should stay or go. The likelihood is that it will go and it is important that properly considered safeguards are put in its place to ensure fairness in our criminal justice system.

Response from Scottish Government

Earlier this month I wrote a letter to Kenny MacAskill primarily on Corroboration in Scots law. That letter was an open letter and can be read here. Today, I received a response from the Scottish Government and in the name of openness and transparency here is the response:

Dear Mr Sloan

Thank you for your email of 1 November to the Cabinet Secretary for Justice. I have been asked to reply.

The Scottish Ministers are aware of the concerns that have been raised by members of the legal profession regarding the potential removal of the requirement for corroboration. An analysis is currently being undertaken of all responses received. The Cabinet Secretary for Justice believes that it is important to consider all views expressed as part of this consultation process. This not only includes the views of the judiciary and legal professionals but also academics, individuals and the views of the Third Sector including those who support the victims of crimes.

Changing something so synonymous with Scots law has, quite rightly, led to a considerable debate on this topic. This debate has ranged from whether the rule should be abolished to identifying possible safeguards that may need to be considered if it is removed The Cabinet Secretary has made clear that he is fully committed to listening and reflecting upon these responses and considering how the reforms recommended by Lord Carloway can best be achieved.

The responses received are currently being analysed and we hope to be in a position to issue a report on the consultation exercise before the end of 2012.

Your comments with regard the role of the Lord Advocate have been noted.

Your sincerely

PATRICK DOWN

Letter to Kenny MacAskill MSP

On 1 November 2012 I sent the following letter to the Cabinet Secretary for Justice, Kenny MacAskill MSP. I will post any reply that is received.

Mr Kenny MacAskill MSP
Cabinet Secretary for Justice
The Scottish Government
St. Andrew’s House
Regent Road
EDINBURGH
EH1 3DG

Dear Mr MacAskill,

Justice in Scotland

I am writing this open letter to you regarding the vitally important topic of Justice in Scotland. As an observer and law student it appears to me that there is a sustained attack on Justice by the Scottish Government, especially in the sphere of the criminal justice system.

One of the first major concerns is the apparent lack of independence of the Law Officers from Government. Over the years the Lord Advocate and Solicitor General are appearing more to be an extension of the arm of Government rather than office holders independent of the Executive. The decision taken by the First Minister in 2007 to stop the Lord Advocate attending Cabinet on a regular basis appeared to be an affirmation of the independence of the Law Officers.

For centuries the Lord Advocate has performed a dual function. The Lord Advocate heads up the sole prosecuting authority in Scotland, the Crown Office and Procurator Fiscal Service, and also acts as the Government’s most senior legal adviser. This dual function appears to have worked well in previous times. However, in a modern democracy having the head of the prosecution service as a member of the Executive doesn’t support the need for a separation of powers; essential to any democracy. The fact that the First Minister also has the power to appoint the head of the prosecution service is also at odds with the thought that the prosecution service should be independent and separate from Government. The position of the Lord Advocate as the holder of both offices has, in my view, become untenable and the Government should be looking to split this role.

Another important matter is the issue of corroboration in our legal system. You have recently indicated that you intend to continue with the removal of corroboration in Scotland despite the fact that there is a large portion of those involved in the criminal justice system that are not in favour of such a move. You cite there being splits in opinion. However, those splits are not as significant as one would have thought from your statements. All but one of the Senators of the College of Justice have given evidence in support of retaining the requirement of corroboration. There remains only one Senator of the College of Justice who supports the removal of the requirement; Lord Carloway, the author of the report which recommended its removal in the first place. It is significant that the remaining Senators disagree with Lord Carloway; it cannot have been easy for their Lordships to so publically disagree with one of their number, especially one as senior as Lord Carloway.

Another important group who have come out in favour of retaining Corroboration is the Police Federation. The Police Federation represents rank and file police officers; the ones who are on the ground every day investigating crime and assisting victims of crime to obtain justice. If there was one group of individuals who one would have thought would support such a move it is them. Removing the requirement for corroboration would make criminal investigations much less complex, a lot quicker and a lot easier to bring a suspect before the Courts. Yet, rank and file police officers are against the removal of corroboration. That, I suggest, gives a great weight to its value in the criminal justice system. It is not just lawyers who are opposed to its abolition.

Personally I am a supporter of corroboration. I am of the view that it has served Scotland’s justice system well and that the argument that it’s out-dated and archaic is not strong enough to consider its removal from our system. Corroboration gives credibility to witnesses who on their own might be less credible. Corroboration, gives weight to testimony rather than detracting from it. If a witness presents a version of events that is supported by other evidence independent from the witness then it strengthens that testimony. The removal of corroboration could conceivably lead to fewer, rather than more, convictions. As we begin to remove the independent supporting evidence (perhaps not because it doesn’t exist, but because it’s not required it is not found) juries and Courts might find it harder to convict on the testimony of a sole crown witness who may not appear credible. That is as much of a miscarriage of justice as an innocent person being wrongly convicted.

There is, of course, the argument that removing corroboration that more innocent people will be convicted a criminal offence. That should concern anybody, especially the Cabinet Secretary for Justice. Credibility of the justice system is essential and if we see a decrease in convictions and an increase in wrongful convictions the credibility of the system is severely harmed. Witnesses lie on the stand, they make mistakes while giving evidence and their testimony can be clouded by long delays between the offence and trial. The passage of time can affect a person’s recollection of events. In the same way that the passage of time can cause a person to become less sure of events, they can also become surer of events which did not actually occur. Without corroboration, a witness whose memory is so affected will appear confident and that could result in an innocent person to be convicted.

Despite the previous paragraphs in support of corroboration I am not wedded to it. I don’t take the view that it would be the end of the world if it were to be abolished. However, if it were abolished with no other amendments made to the system then there is a real risk that the trial process will become unfair and weighted too heavily in favour of the Crown. If we are to abolish corroboration it is necessary, in my view, to consider whether it is still appropriate to accept, for example, an 8-7 split on a jury and whether we can continue to have three verdicts in our criminal justice system. There are other systems which do not operate corroboration, but they do have other safeguards built into their system. Scotland would need to consider what other safeguards would be required at the same time as abolition. We must avoid another Cadder situation where Scots law is found wanting and we have to rush through emergency legislation which cannot be properly scrutinised prior to its enactment.

While I accept that Scots law can survive without corroboration I see no reason for removing the requirement. Simply because something has been around for centuries doesn’t mean that it no longer has a place in our system. I am a firm believer of the “if it isn’t broken don’t fix it” approach.

I am concerned in the way that the debate around corroboration is being presented. The constant focus on sexual offences and domestic violence is, in my view, preventing a proper and considered debate on this matter. It is not right or proper that when considering removing a fundamental element of our criminal justice system that the debate focuses on a small number of offences, particularly ones which are as emotive as sexual offences and domestic violence. Removing corroboration will affect every single criminal situation; from the drunken person at the weekend committing the most minor of breaches of the peace all the way through the homicide. As it affects the whole system, it must be debated in a way that considers the whole system. Reforming the justice system should not be about placing victims and perpetrators against one another. The criminal justice system exists for the wider public interest. The need for retribution by a victim is an important part of that public interest, but only one part of it. The protections of our system exist to protect those who are wrongly accused of a crime as much as, if not more than, those who are rightly accused of a crime. Ignoring this group of people in any consideration of reform of the justice system is entirely wrong.

There are matters in our criminal justice system that are much more pressing and require the attention of Government and the time of Parliament. I would urge the Scottish Government to give consideration to those (such as the independence of the Law Officers) ahead of a massive shake-up of our system that could do much more harm than it does good.

I look forward to receiving your considered reply to the matters raised above.

Yours sincerely,
Alistair P Sloan

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.

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.

Cadder round 2: Judgment applies beyond the Police

It has been reported that Sheriff Murphy has delivered a judgment at Glasgow Sheriff Court that could potentially through Scottish Criminal Procedure into total chaos again. Sheriff Murphy has ruled that the protections afforded to suspects being interview by the Police following the case of Cadder v HMA in the UK Supreme Court last year extend beyond the police. Effectively the judgment covers all agencies interviewing persons where criminal charges might result.

Some examples of agencies that would be included are the UK Border Agency, Customs, the DWP and local authorities. This could have huge ramifications in everything from those entering the UK through Scotland’s ports and airports illegally to the person claiming housing benefit to which they are not entitled. Even being interviewed by the TV Licensing authorities for not having a TV licence would be covered.

Last year the Scottish Government introduced emergency legislation to the Scottish Parliament to give suspects being interviewed by the police the right to access following the judgment of the United Kingdom Supreme Court in the case of Cadder v HM Advocate. In that case the court held that the ability of the police to detain and question a person for up to six hours without the option of consulting a solicitor breached their right to a fair trial guaranteed by the European Convention of Human Rights. The concerns related to self-incrimination and the Crown using confessions in evidence where the suspect had not been able to seek legal advice.

The decision of the Sheriff today is not a binding upon other Sheriffs. However, it is likely to have persuasive authority. Indeed, it would be foolish of the Scottish Government not to further amend the Criminal Procedure (Scotland) Act 1995 to extend the right of access to legal advice beyond those being questioned by the police. There is no discernable reason as to why, in light of Cadder, the High Court of Justiciary or the UK Supreme Court would decide any differently.

This right is one that has existed in England and Wales since 1985 and covers other agencies such as the UK Border Agency and Customs.

The decision of the Sheriff could potentially harm thousands of prosecutions for offences such as benefit fraud being brought in Scotland by the COPFS. It is hoped that the Government’s response will not be as rushed or as flawed as it was last October.

The Scottish Information Commissioner should be issuing a decision in the near future regarding the provision of documents and material used by the Government during the decision making process that resulted in the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010.

Lord Carloway is currently conducting a review of criminal procedure and evidence in Scotland following the judgment from the UK Supreme Court last year. More information on the Carloway Review can be found at http://www.carlowayreview.org

A copy of the Sheriff’s Judgment and the Commissioners Decision Notice will be linked to from this site when they are made available.

Carloway Consultation Part 2

This is the second 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.

What types of advice are sufficient?

It is important that a suspect, who has chosen to seek advice from a solicitor prior to being interviewed by the police, or indeed at any stage of their detention, is able to do so freely. It is important, as with the law generally, that such consultations are privileged. Therefore, if telephone advice is to continue to be permitted then there should be private facilities for this to take place and should not be able to be overheard, or indeed listened into, by the police.

In the case of consultations that take place by telephone it may be that the suspect has access to a telephone where no facility exists to dial outside of the police station and that the telephone call has to be transferred from one telephone to another. This should be done in a secure manner to preserve the privileged nature of client-solicitor communications.

Face-to-face consultations in police stations should be what are encouraged and ensuring a duty solicitor scheme that is sufficiently staffed to meet the demand placed upon it will be essential. The Scottish Government and SLAB should continue to look at how this might work and ensure that they seek assistance from the Law Society of Scotland to ensure that a system is created that works and which solicitors will be willing to be involved with. It might be guaranteeing payment for all attendances at police stations is what is necessary; this would of course place an additional burden upon the Legal Aid budget at a time of significant austerity.

In cases where only the High Court of Justiciary has jurisdiction over the offence then telephone advice is not sufficient and a solicitor must attend the police station.

In what circumstances, if any, should a suspect be entitled to a solicitor of choice?

In the first instance the suspect should always be permitted to name a solicitor they wish contacted and a reasonable attempt should be made to contact that solicitor. Where the interests of justice dictate that contacting the named solicitor is not an option then no reasonable attempt need be made. A decision not to contact a named solicitor on such grounds should be at the discretion of a Constable of the rank of Inspector or above. The suspect should be notified of such a decision and offered the options of naming another solicitor, having a duty solicitor contacted instead or waiving their right to legal assistance.

If the solicitor named is contacted but cannot attend or cannot be contacted after a reasonable attempt to contact has been made the suspect should be notified and offered the options of suggesting another solicitor, having a duty solicitor contacted instead or waiving their right to legal assistance.

What obligations, if any, should there be on the police in relation to the disclosure of information prior to questioning?

The Police should be required to disclose to the solicitor, as a minimum, the following:

Date and time of arrest/detention
What alleged offence(s) the suspect has been detained/arrested in relation to
The location of detention

They should also be required to disclose any other information that is reasonably requested by the solicitor and would not jeopardise any ongoing investigation. The decision to release any further information should be at the discretion of the investigating officer.

The Carloway Review consultation document can be read here [pdf] and the deadline for responses is Friday 3 June 2011.

Carloway Consultation Part 1

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.