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"We are talking about the practical investigation of crime and what happens when a person is deprived of his/her liberty during that investigation.

“That is why I am determined that my recommendations will be practical as well as compliant with the general requirements of the European Convention on Human Rights and the needs of justice more generally.”

So said Lord Carloway on launching the consultation to inform his review of the law and practice relating to the detention and questioning of suspects, and related matters arising from the Cadder decision and the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 hastily passed in response.

Though acknowledging that he was dealing with a large and complex area, and stressing the paper’s aim of stimulating open discussion rather than presenting draft recommendations, there is only an eight week period for preparation of responses, which ends on 3 June.

This article therefore attempts to flag up the principal questions raised, with some initial thoughts from solicitors engaged with the process.

The paper (see www.carlowayreview.org) contains 34 questions for discussion, introduced under the headings Key elements of custody; Key stages of custody; Evidence; and Appeals. Lord Carloway is keen that the review should do more than just attempt to correct any flaws in the emergency Act: “It should take the opportunity to re-examine the core principles underlying the procedures of detention, police questioning, charge and arrest, and the implications for concepts such as corroboration and the inference from silence.” Sub-text: there are no sacred cows.

Cadder: accept or waive?

“Key elements of custody” concerns the issues closest to a Cadder situation. When should a suspect’s right to legal assistance arise? Should there be a statutory provision for waiver? What forms of legal advice are sufficient? Should there be any right to a solicitor of choice? What rules should apply to police questioning?

So far as Convention rights are concerned, the first of these questions should be clarified when the further appeals referred by the Lord Advocate direct to the Supreme Court are decided. At his press briefing Lord Carloway was not proposing to await the decisions before finalising his report – on the view that ECHR jurisprudence is developing all the time – but with the hearing now scheduled for 28-30 June, they may be available around the time the report is produced.

For all the shock waves caused by Cadder, information available to the review team suggests that the right to legal advice is only exercised by about one in four detained suspects. “It is unclear why so many suspects do waive their right”, the paper states.

Some will have been through the procedure before; many may have made up their minds not to say anything in any event; some may be unconcerned and happy to explain their position; and some, “especially experienced ones”, will be concerned that arranging for a consultation will significantly prolong their detention.

John Scott, Vice President (Crime) of the Society of Solicitor Advocates and a member of the Carloway Reference Group, told the Journal: “Despite the new right, many suspects think the old situation still applies. Perhaps some sort of public education is necessary, or at least clarification for suspects until the change is better appreciated.”

The paper suggests that given the importance of the Cadder right, it might be prudent to provide expressly for information to be given before a suspect waives the right.

Your call

But how should legal advice be given if requested? It has still to be tested in court whether telephone advice is adequate, although currently over three quarters of consultations consist of short telephone conversations. “This may be because the advice in most cases is likely to be invariable; that being not to say anything”, the paper notes.

Opinions vary over the sufficiency of telephone advice. Cameron Ritchie, a member of the Society’s working group on the paper and a former procurator fiscal, said: “My personal view is that the vast bulk of cases where legal advice is sought could be dealt with adequately by telephone advice by a solicitor who is competent to give such advice. A personal meeting and advice during questioning should be mandatory (unless refused by a competent adult in writing) in serious cases (murder, rape) and for children and genuinely vulnerable adults.”

He conceded that colleagues engaged in defence work are likely to take a different view; and strong contrary views were quoted in the Journal feature, November 2010, 12 at 13.

The paper recognises that legal aid arrangements are an important factor in ensuring that the right to legal advice is practical and effective; and it is a safe bet that this will feature heavily in submissions from the profession.

John McGovern, Past President of the Glasgow Bar Association, believes that recognising the suspect’s choice of lawyer is equally important, as stated in the CCBE’s recommendations on legal aid. “Without the ability of an accused person to obtain legal assistance from a lawyer chosen by him, and in whom he has therefore expressed confidence, the rights under the Convention exist merely in theory, or at least without public confidence”, he commented.

On this point, the Guide prepared by Justice in association with its Scottish Advisory Group suggests a cautionary approach: “Since the ECHR affords this right to representation, solicitors may wish to be in a position to explain why they thought that a telephone consultation was sufficient in a particular case.”

Scott pointed out, however, that the Irish Court of Criminal Appeal recently decided that a telephone call of under 90 seconds was “reasonable access” in that particular case.

A further section deals with children and other vulnerable suspects; space does not permit discussion here.

Detention and beyond

The very first question in the paper asks whether the terms of ECHR article 5 (lawful arrest or detention “on reasonable suspicion of having committed an offence”) should be incorporated into Scots law to provide the sole grounds for taking a person into custody. Part 2, “Key stages of custody”, takes the matter further. Carloway is considering whether, since Cadder, there is any need for the separate concepts of detention and arrest, or should a system of arrest on reasonable suspicion replace them.

And does the police charge serve any useful practical function, if article 6 rights apply as soon as a person becomes a suspect? The suspect might instead be notified that the case is to be referred to the procurator fiscal to consider whether charges should be brought, and if so, what – whether or not he/she is to remain in custody pending a court appearance. Again the issue is raised whether subsequent police questioning should be allowed.

Part 2 also revisits the maximum length of detention, without offering any clues as to likely outcome, but does raise the possibility of conditional release, a power available to the police in England to release a suspect temporarily before the maximum has been reached, and then recall for the balance.

In Ritchie’s view, “The vast majority of cases need only and indeed less than six hours’ detention. To allow the Crown to lead evidence of self incriminating statements, Cadder (not the Act) must be satisfied. The 12 and 24 hours may remain but should be restricted to serious cases and perhaps only limited crimes. The Act should be repealed and a new one enacted after the review.”

Scott agrees that the figures accord with the rather poor evidence for a blanket extension to 12 hours, produced ahead of the Act; and on the need for the Act to be repealed and replaced with one which properly meets the needs of the majority of cases as well as the more complex exceptions.

Also, should Saturday courts be reintroduced to reduce the burden of dealing with custody cases on a Monday? Current GBA President Ken Waddell says the GBA’s initial soundings suggest the move would be as unpopular with Scottish Court Service staff as with defence agents, as well as requiring significant funding through enhanced legal aid rates and increased budgets for SCS, Reliance, court security, the prosecution service, prisons, etc. “The potential impact on witnesses will also have to be carefully considered, including issues such as child care for witnesses, given the reduced availability of child care facilities at the weekend.”

Corroboration: a rationale?

Cadder has often been said to have implications for rules of evidence other than admissibility, in particular the requirement for corroboration. The connection is not obvious. However, introducing its section on evidence, the paper observes that since the 2010 Act there has been some public comment that the balance of the system has been tilted too far in favour of the accused.

But that is not the underlying rationale for taking a fresh look at such a fundamental pillar of the Scottish system. Although the corroboration rule has been thought of as an essential safeguard for an accused, Cadder made it clear that such safeguards could not be used to overcome any disadvantage from the lack of availability of other rights.

The paper observes: “Since the requirement for corroboration does not exist in any other European jurisdiction, it is reasonable to assume that, were it to be removed, there would be no basis for concluding that this, at least of itself, would result in a breach of article 6. But that is not a good or sufficient reason to remove the requirement if it serves a useful purpose in the domestic system.”

Among the relevant considerations the paper notes in support of the present rule are:

• the risk in relying on the evidence of a single witness;
• there is a clear and objective test for prosecutors to apply in deciding whether to prosecute, and a “baseline” for judges in considering whether to convict;
• it is not clear how many additional prosecutions and convictions there would be if the requirement were removed.

As against that:

• prosecutors elsewhere make decisions as a matter of routine, based on broad concepts such as the likelihood of conviction and the interests of justice;
• corroboration is less likely to exist in some types of case such as sexual offences, and this has given rise to elaborate rules on what can amount to corroboration, on which juries require to be directed, with potential for misunderstanding;
• it can be questioned what degree of practical protection the rule offers where there is a single credible witness supported by limited circumstantial evidence;
• the rule can present a suspect with a difficult choice whether to give an explanation under police questioning that may be taken as corroborating aspects of an offence, such as that intercourse took place, or remain silent in the knowledge that a jury may find the accused’s position, e.g. that intercourse was consensual, less credible if advanced at a later date.

The questions under this heading are, simply, should the requirement for corroboration be abolished; and what should the test for sufficiency of evidence be?

Despite the points made in the paper, there seems to be little support for abolition from the profession. Ritchie commented: “I believe most Scottish lawyers would be loth to diminish corroboration requirements, never mind abolish them. They are a safeguard not just to suspects but also to prosecutors and police. The reality is that more cases would proceed and more would go to trial without corroboration.”

He added: “I would find it difficult to advise a plea of guilty based on the evidence of one witness completely unsupported.”

Waddell put it this way: “Removal of the requirement for corroboration might require a change in the jury majority required for a guilty verdict. With 15 jurors and a simple majority, the need for corroboration provides a legal hurdle to be overcome before a jury require to assess matters. Without that hurdle, which is protective in nature and seeks to ensure that the opportunity for miscarriage is minimised, there is a realistic likelihood of increased numbers of miscarriages of justice.”

McGovern said simply: The Cadder case corrected an embarrassing anomaly in our criminal justice system. There is in my view no necessary linkage between Cadder and corroboration.”

Scott also queried the suggestion of a need for “rebalancing”: “Just because our system was fair in many other ways, but not in relation to solicitor access, that is no reason to say that we must now purposefully set out to make some aspect of it less fair in some other way. That way lies injustice and the potential for many more miscarriages.

“Corroboration provides an important element of quality control in many cases, as opposed to being merely a measure of quantity. Without it we would need some other form of quality control to avoid questionable cases going to juries. In any event I am not convinced that corroboration is absent in other countries as a matter of fact, if not of law. If we skew our system for rape cases, as seems to have been suggested by some, we run a greater risk of miscarriages, but what will be the gain? In England the conviction rate for rapes appears to be only slightly higher than in Scotland.”

Questioned on the subject at the press briefing, Lord Carloway said the review team would welcome views on the miscarriage issue. “If the argument is that it prevents miscarriages of justice, we would like to see where that is coming from, and if it is in fact true, given the absence of a corroboration rule in any other system in the West.”

More evidence matters

One effect of the decision in Cadder has been to move away from the idea that a general test of fairness on its own is sufficient safeguard of a person’s Convention rights, in relation to admissibility of statements. The paper therefore raises the question whether it is time for the test and any exclusionary rules to be set out in statute. If so, questions arise as to the treatment of “mixed” statements, as well as those that are wholly exculpatory, if any such rules are to be applied consistently.

Finally on evidence, there is the question of inferences from silence. If there is a right to remain silent under questioning, as well as a privilege against self incrimination, is that compromised if it is possible to draw an adverse inference? Or should the court be entitled to interpret silence as common sense permits? What practical difference would that make, especially where silence is maintained on the advice of a solicitor?

McGovern sees no justification for restricting the right to silence, citing the 1994 Scottish Law Commission report which warned that there was no sound basis for such a move: “The only significance of the accused’s silence is that the prosecution evidence is uncontradicted. The Commission does not see why it should be possible to draw adverse inferences where the accused has quite justifiably remained silent.”

It has never been identified, he adds, how many accused persons, over a stated period, have been wrongly acquitted after exercising their right to silence.

Appeals revisited

On appeals, the paper recognises the problem caused by appeals sought to be lodged late, and the lack of incentive to progress an appeal if the appellant is then allowed interim liberation. Options noted are a stronger test (“likely to succeed”) before a late application for leave is granted; a longstop date (say a year) after which the only route would be via the Scottish Criminal Cases Review Commission; and powers of the court, including dismissal and orders in relation to costs, in order to ensure smooth running of appeals.

Other questions include whether it is desirable to remove the possibility of multiple appeal routes (nobile officium; bills of advocation and suspension); and whether to keep the provisions relating to the SCCRC introduced in the 2010 Act, which increase the discretionary powers of the High Court, arguably at the expense of public confidence in the SCCRC.

John Scott sees that there may be some merit for simplifying appeals procedures, but added: “It is vital that procedural rules and time limits do not strangle appeals with merit. For me and many others, remedying miscarriages of justice is more important than finality. The court’s relationship with the SCCRC is also of constitutional significance. This aspect of the Act was perhaps the most worrying and is certainly in need of being revisited.”

Something has to give

With the consultation having been published less than a month before this issue went to press, interested bodies were still considering their responses when approached for comment. However they are agreed as to its significance.

“It is essential that members of the Society actively engage in this review”, said GBA President Ken Waddell. “The GBA welcome any and all contributions which can be sent, for consideration, to the Association or direct to me at kjw@peacockjohnston.co.uk. Any contribution received will be carefully considered before the GBA written response is finalised and submitted.”

Similarly the Law Society of Scotland’s own working group would welcome submissions, which can be sent to Alan McCreadie at alanmccreadie@lawscot.org.uk.

Whatever your views on how the system is working at present, change is in the offing. Asked if the law had become “out of kilter” since Cadder, Lord Carloway replied: “The short answer is yes.”

CARLOWAY TERMS OF REFERENCE

The remit of the review, entitled “Access to Legal Advice in Police Detention: Consequences for Law and Practice”, is:

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.