Response to the Carloway Review
051 - Senators of the College of Justice
Introduction
Cadder and the new legislation
The decision of the Supreme Court in Cadder had consequences for the Scottish system of criminal procedure that even now are difficult to predict. In that decision, the Supreme Court held that where in a criminal trial the Crown led evidence of a statement made by the accused at a police interview while under detention as a suspect, the existing Scottish legislation, in giving the detainee no right to consult a solicitor beforehand, was contrary to article 6 of the Convention. Accordingly, the Crown’s reliance on that evidence at the trial of the accused also constituted a breach of the accused’s rights under article6; and therefore the act of the Lord Advocate qua Scottish Minister, in leading the evidence, constituted a breach of section57(2) of the Scotland Act 1998. In so deciding, the Supreme Court overruled a unanimous decision of a bench of seven judges of this court in McLean v HM Adv (2010 SLT 73).
While the appeal in Cadder was under consideration by the Supreme Court and in the light of the discussion at the hearing of the appeal, the Scottish Government thought it advisable to prepare legislation amending the existing law relating to the treatment of suspects in detention by the police.
Immediately after the Supreme Court’s judgment was announced, the Scottish Government introduced that legislation to the Scottish Parliament.
The new legislation, the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 introduces a right to a private consultation with a solicitor both before any questioning begins and at any other time during questioning. The suspect is entitled to have intimation sent to a solicitor for this purpose, and must be informed that he has these rights. This applies whether the suspect has been detained, attends voluntarily for questioning, or having been arrested is detained for questioning in connection with an offence. “Consultation” means consultation by such methods as may be appropriate in the circumstances, for example by telephone. Intimation must be sent to the solicitor without delay, or if some delay is necessary in the interest of the investigation, the prevention of crime or the apprehension of offenders, with no more delay than is necessary. In exceptional circumstances the police may delay the exercise of the right so far as it is necessary in the interest of the investigation, the prevention of crime or the apprehension of offenders that questioning begins or continues without the suspect having had a private consultation with a solicitor. The time for which a suspect may be detained is extended from six to twelve hours. A further extension of twelve hours can then be authorised by a “custody review officer,” of the rank of inspector or above and unconnected with the investigation, if he is satisfied that this is necessary to secure, obtain or preserve evidence, whether by questioning or otherwise, that the offence is an indictable one and that the investigation is being conducted diligently and expeditiously.
In introducing the legislation in the Parliament, the Minister for Justice said:
“The bill had to be drafted at breakneck pace. Although preparations were made and scenarios were planned for, details were not available or known about until 9.45 yesterday…
The issues have been canvassed, and we accept that the change in the law of Scotland is a significant one. It has been brought upon us, and the Government sees, with perhaps the same heavy heart that Paul McBride and Lord McCluskey referred to, a pyrrhic victory on the part of those who view the developments as a great advancement of civil liberties in Scotland. It might very well be so, if that is how people see it—I have to say that I do not see it that way. The downside could be significant, and it could be a change for the worse.
That is where we are, and we have had to deal with the situation. We have provided what is necessary within the European convention on human rights; we have balanced the provisions with the extension of periods of detention; we have ensured that those who are required to attend are provided for with legal aid funding; we have dealt with the question of the certainty of appeals; and we have dealt with matters in respect of the Scottish Criminal Cases Review Commission. The Parliament, especially those members in other parties who have some concerns, have the assurance that all those matters will be reviewed by Lord Carloway. They will have to be the subject of primary legislation after May 2011. If Lord Carloway or others flag up some issues, there is the possibility of returning to the matter. I do not see that as being the situation, however.
The bill is a temporary fix that allows us to deal with the consequences of Cadder v HMA. In due course, the Parliament post 2011, however it is constituted, will have a bill dealing not simply with the aspects that we have touched on today but with deeper, more fundamental matters. At that stage, many of us might ask whether it was worth the candle as far as Cadder v HMA was concerned. However, this is the position that we find ourselves in.”
The review by Lord Carloway to which the Minister referred has the following terms of reference:
1.To review the law and practice of questioning suspects in a criminal investigation in Scotland in light of recent decisions by the UK Supreme Court and the European Court of Human Rights, and with reference to law and practice in other jurisdictions;
2.To consider the implications of the recent decisions, in particular the requirement for legal advice prior to and during police questioning, and other developments in the operation of detention of suspects since it was introduced in Scotland in 1980 on the effective investigation and prosecution of crime;
3.To consider the criminal law of evidence, insofar as there are implications arising from (2) above, in particular the requirement for corroboration and the suspect’s right to silence;
4.To consider the extent to which issues raised during the passage of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland Act) 2010 may need further consideration, and the extent to which the provisions of the Act may need amendment or replacement;
5.To make recommendations for further changes to the law and to identify where further guidance is needed, recognising the rights of the suspect, the rights of victims and witnesses and the wider interests of justice while maintaining an efficient and effective system for the investigation and prosecution of crime.
The fundamental questions underlying Cadder
The decision in Cadder, which has provoked the appointment of the Carloway Review, raises a number of fundamental questions. These include whether because of a consequence of section57(2) of the Scotland Act that in our view was neither intended nor foreseen, section57 should be amended and, if so, to what effect. That question is currently before the UK Parliament. From the terms of reference of the Carloway Review, it is obvious that questions of that kind are not to be explored. Instead, the primary focus of the Review will be on Scottish criminal procedure relating to the treatment of suspects while under detention by the police.
The present consultation
We have two immediate concerns regarding this course of events. The first is that the present Review, though precipitated by the Cadder decision, is directed to questions that do not arise directly or necessarily from it. The second is that the present consultation has tabled questions and possible options affecting Scottish criminal procedure and evidence in a way which goes beyond what is necessary or appropriate. Reference is made to the detailed responses.
In its consultation paper, the Review has canvassed certain fundamental options regarding evidence and procedure both before and during trial which would constitute a radical departure from our existing law.
The last review body to consider such questions was the Thomson Committee appointed by the Secretary of State for Scotland and the Lord Advocate, a committee of thirteen members with a wide range of collective experience of the justice system. The Committee carried its work over a period of about eight years and produced three reports, in 1972, 1975 and 1977 respectively. It consulted extensively and received written and oral evidence from many individuals and organisations. The Committee’s work on criminal procedure is embodied in its Second Report (October 1975, Cmnd 6218). In the preparation of that Report, the Committee held 122 meetings, 117 of which were devoted exclusively to the topics dealt with in its Second Report. The Committee heard oral evidence from 52 representatives of 17interested bodies and from eighteen individual witnesses. Certain aspects of its work were carried out by its sub-committees. This section of its work was carried out over a period of about three years.
In contrast, in the present consultation exercise consultees have been given a period of a matter of seven weeks in which to consider certain fundamental questions such as the abolition of corroboration and the modification of the right to silence. In our opinion, good law reform requires an extensive pre-consultation review of problems and possible options for reform; the preparation of a detailed consultation paper; an adequate period for public discussion and consultation, a thorough analysis of the consultation responses and the publication of a report and recommendations.
Furthermore, for the reasons that we shall give, we consider that many of the reforms that are canvassed in the consultation paper do not relate to the ratio decidendi of Cadder and cannot therefore be said to arise in consequence of it: for example, the abridgment of the right to silence.
We acknowledge that this is an impressive consultation paper. It has been prepared expeditiously. But we consider that, excellent though it is, it would have benefited from a thorough review of the options that are to be found in England and Wales, Ireland and other English speaking jurisdictions. Moreover, we consider that the consultation period is unreasonably short. For these reasons we fear that there is a risk that the Review may lead to fundamental changes, the results of which may be difficult to predict, that are the product of undue haste.
Our approach to the consultation questions
In submitting these answers – which think merit further and more detailed consideration – we ask the Review for an opportunity to submit a supplementary consultation response in the light of the other consultation responses that are received. We consider that this is a reasonable request having regard to the fact that, of all possible consultees, we have a unique background of experience in prosecution, in defence and in the conduct of criminal trials and appeals.
In the following chapters of this response we shall consider the options put forward in the consultation paper on their merits; but we will do so by looking at each individual proposal in the context of the entire body of Scottish criminal procedure.
In its consideration of the issue raised in McLean v HM Adv (supra), a bench of seven judges of this court looked at the problem of detention of suspects without access to legal advice in the wider context of the protections afforded by our criminal law. The court reviewed those protections in paragraph[27] of its decision. It drew attention to protections such as the right to silence, the right not to be further questioned by the police after caution and charge, the specific rights of detainees, the tape recording of interviews in all serious cases and the overall right of the accused at trial to contend that an admission relied on by the Crown was elicited from him by unfair means.
We think that the procedural protections to which the court referred should be kept in mind when each of the options proposed in the present consultation paper is examined.
In this way we hope to demonstrate, for example, that the rule of corroboration cannot be seen apart from the principle that an accused person can be convicted by a bare majority verdict.
We therefore say straightaway that we do not propose to treat the consultation paper as setting out a series of potentially good ideas, each unconnected with any of the others. The experience of ad hoc reform in this area of the law down through the years has been that an ad hoc response to one procedural problem almost invariably creates further unforeseen problems.
Scottish criminal law did not arrive at its present state overnight. The modern law is the product of centuries of development during which the law has grown and matured organically, partly through the analytical works of institutional writers, partly through experience of practical problems in the courts, and partly in response to emerging problems, political pressures and sometimes to controversial cases.
We are of the view that, on the whole, reform in this area of the law is best conducted in a systematic way rather than by way of ad hoc responses to individual cases and controversies.
THE SUSPECT, RIGHTS RELATING TO CUSTODY and QUESTIONING, PUTTING RIGHTS INTO EFFECT
(A)THE SUSPECT
Q1.Should the terms of Article 5 be incorporated into Scots law to provide the sole grounds for taking a person into custody?
A1. For the purposes of this Review, the only relevant provision of article 5 of the European Convention on Human Rights (ECHR) is paragraph 1.c:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law …
c. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;”
At present, a person in our jurisdiction may be taken into custody only as a consequence of his being detained in terms of section 14 of the Criminal Procedure (Scotland) Act 1995, or of being arrested. An arrest may be by virtue of a warrant issued by a court; or by virtue of a constable’s exercise of his power of arrest without warrant at common law, or in terms of a statutory entitlement. Each process is governed by law, and is entirely compatible with the terms of article 5.1.c. Therefore the incorporation of article5 into Scots law, as it now stands, would not affect the question whether any particular act of detention or arrest was lawful, nor would it add anything by way of procedural safeguard for a person arrested or detained.
However in a general review and restatement of the principles and procedure applicable to this area of the criminal justice system, it might well be logical and sensible to incorporate the terms of article 5 into Scots law. Interview by police officers in advance of taking a person before the competent legal authority is lawful and consistent with article 5 (cf Reed & Murdoch, A Guide to Human Rights Law in Scotland, para 4.75 and fn 12); Our answer to this question may be affected by the approach adopted to Question 15 below.
Q2.Should the law recognise the suspect as having a distinct legal status with statutorily defined rights?
A2. We consider that a suspect should be recognised as having a distinct legal status; but that no attempt should be made to define a suspect’s rights by statute. Such an attempt would produce over-complicated and prescriptive legislation that would not cover the many and varied situations that could arise.
Cadder warns that a suspect should have access to a lawyer from the stage of first interrogation by the police; but in circumstances falling short of that, Cadder leaves a degree of doubt. For example:
a.Police officers see the car ahead being driven slowly and
hesitantly. They consider the possibility of the driver being under the influence of drink, stop the car, and ask the driver some questions.
b.Police officers see a man climbing out of a bungalow window
carrying a bag. They consider the possibility of a house-breaking, and ask him some questions.
It may not be necessary in either of these situations for the officers to detain the individual; but, given the nature of their concerns, the individual ought properly to be recognised as a suspect and should be given a common law caution. To suggest that no questions could be put to such an individual until he had consulted with his lawyer could, in our view, seriously hamper police investigations, particularly those which required in the public interest to be carried out in situations of urgency. The forthcoming decisions of the UK Supreme Court in Ambrose and Others v HM Advocate will be relevant to these issues.
If, however an individual is detained or is invited to attend at the police station for questioning, or attends at the police station of his own volition, he can readily be seen as falling into a different category. Such a suspectshould be entitled to an immediate common law caution and to access to a lawyer, however such access comes to be defined. This type of differentiation is reflected in some of the European jurisprudence cited at paragraph 47 of Cadder. For example, in Zaichenko v Russia (application no 39660/02), the ruling in Salduz was not applied where the applicant was not formally arrested or interrogated in police custody, but was stopped for a road check.