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Carloway Review

Posted 08/06/2011

Carloway Review of the Law and Practice Relating to the Detention and Questioning of Suspects.  Read full response

While the RSE is anxious to contribute to Lord Carloway’s review, there is concern that the review may not provide
the opportunity required for a study in depth of the core principles of criminal law and procedure referred to.

In general, the collective resources of the Scottish Law Commission or some larger body led by them would appear
to be required for such a study, to ensure that any resulting legislation reflects mature consideration of the issues raised
by the decision of the Supreme Court.

More particularly, the decision in Cadder was limited in scope, and the Supreme Court must be expected to develop
its own jurisprudence as the cases already referred by the LordAdvocate, and appeals already in hand, are considered
and disposed of.

It is impossible at this stage to anticipate the outcome of this process, or to predict the success or otherwise of the emergency
legislation already in force in the context of that developing jurisprudence.

A critical question may be the point at which the interaction ofArticles 5 and 6 of the European Convention on
Human Rights requires the protection of the individual, the ‘suspect’, by requiring the provision of legal advice on his
rights in dealing with police officers who wish to ask him questions.

The resolution of that issue is by no means clear.The relevant provision ofArticle 5 for this purpose limits the power
to interfere with the liberty of the individual.Arrest or detention is permitted for the purpose of bringing the individual
before the competent legal authority on reasonable suspicion of having committed an offence.

Scots law distinguishes detention and arrest procedurally, and in terms of the protection afforded to the individual.
ButArticle 5 does not. It may be decided that protection will be required at the earliest date on which detention,
in the Convention sense, begins,whatever the procedural technicalities of the local jurisdiction.But ‘detention’ cannot
be assumed to begin with deprivation of liberty in accordance with the rules set out in section 14.

Until one knows the direction likely to be taken by the Supreme Court, and the European Court, the development
of a legislative solution is in a real sense premature since it comes before the problem has been fully defined.

The RSE welcomes the Carloway Review’s intention to consider the comparative experience of other jurisdictions.
Within the United Kingdom the Review might benefit from examining experience in England of operating a system
where the suspect has a right to the presence of a lawyer. Similarly, there may be relevant experience of the proportion of
English cases that currently proceed without corroborative evidence.The comparative material in the Review is incomplete.

The RSE is conscious that in the current economic climate decisions on law reform may require to have regard to the cost
of implementing different solutions that might be considered.The issues raised by the Carloway Review will inevitably
have financial implications, including the provision of legal aid for legal assistance.

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