Arrest: all change

Criminal law practitioners, rather than their clients’ cases, have been making the headlines, as significant criminal procedural changes came into effect on 25 January 2018 with the Criminal Justice (Scotland) Act 2016. This article outlines the current position and provides some background on the changes.

The Society and the profession broadly support the aims of the Act, in that it extends the protection of the human rights of suspects within the Scottish justice system, which secures:

• the rights of suspects to obtain advice from a solicitor at any stage when they are detained;
• the attendance of a solicitor for the most vulnerable in society at the police station.

Considerable concerns, however, have been expressed by the profession who feel that the additional workload which will result has not been supported by a corresponding increase in legal aid rates, and the rates continue to be inadequate. Such rates need to be “fair and reasonable” to meet the 24/7, 365-day demand on criminal solicitors in supporting suspects detained at the police station and who require access to legal advice. The changes pose a particular challenge for those solicitors who have young children and/or other caring responsibilities. Their job as solicitors includes not only attendance at a police station at any point but also effective representation at court.

A number of solicitors have chosen to withdraw from the police station scheme, something we highlighted as a potential risk to the Scottish Government when we met to discuss the implications of the new Act.

The Society has held meetings with local faculties to understand the concerns of its members and we now have a more informed picture of the extent of the profession’s withdrawal and the potential disruption to suspects’ access to justice across Scotland.

The Government has indicated that it, along with the Society, will monitor and evaluate how the changes are working and their effect on those whom the changes have been designed to support. We will continue to press the Government for improvements and keep the faculty heads updated as to that progress, along with the Report on the Independent Strategic Legal Aid Review led by Martyn Evans, which is expected to be published later this month.

There are two main areas of change introduced by the Act:

1. Police station procedures:

The current detention procedures have been abolished by simplifying the arrest procedures.

Chapter 1 of part 1 outlines the powers and exercise of rights by the police to arrest and provide information following arrest and at the police station. These replicate those practices familiar to the profession post-Cadder. On arrest, the rights include intimation of arrest sent to a solicitor and access to a solicitor. There is no obligation to say anything beyond providing name, address, date and place of birth and nationality. A letter of rights is to be provided.

Chapter 2 provides for authorisation for a person held in custody to be obtained as soon as reasonably practicable, with 12 hours being the maximum period without charge. Account has to be taken of any periods previously spent in custody relating to the same or a related offence. (This period does not take account of any time required for urgent medical treatment.) Authorisation can be given to extend the 12 hour period. A custody review must be carried out after six hours.

If held in custody, s 14 must be satisfied. It requires reasonable grounds for suspecting that the person has committed the offence, and that keeping the person in custody is necessary and proportionate. Regard may be had to whether the person’s presence is required to investigate the offence, the risk of interference with witnesses/evidence, and the nature and seriousness of the offence. The offence must be indictable. The police investigation must be diligent and expeditious.

Investigative liberation allows the police flexibility to manage the investigation to balance the needs of the inquiry and the public interest. Police have the power to liberate persons from police custody on necessary and proportionate conditions similar to bail conditions for a maximum of 28 days.

2. Legal advice, questioning, child and vulnerable adult suspects:

Chapter 4 outlines the information to be provided prior to the police interview, including the general nature of the offence, the right to remain silent, the right to a solicitor and the rights of suspects in police custody. These are substantially similar to those exercised presently. Any child or vulnerable adult suspect cannot now consent to an interview without having a solicitor present.

In conclusion, we are committed to access to justice for those whom the reforms are intended to benefit. We feel that there is a risk of access to justice being affected in view of these concerns by the profession, concerns that are not new. Access to justice has to be achieved, regardless of the suspect’s postcode.