Criminal Justice (Scotland) Bill

In general terms, we welcome the Criminal Justice (Scotland) Bill as a means of bringing forward reforms to the Scottish criminal justice system, particularly to amend changes brought about through the emergency legislation hastily enacted in response to the Cadder case, in which we intervened, that recognised the right of access to a lawyer during police detention. The Bill follows extensive consultation over the past few years by the Government, through dedicated enquiries and Cabinet reviews. We have responded to many of these in great detail and the submissions can be found on these pages. We agree that reform has been needed for some time to the arrest and detention procedure. The Bill allows the Scottish Parliament to focus on how the system might be improved. We set out in this briefing some suggested amendments to the proposed reforms, informed by standards provided in England and Wales under the Police and Criminal Evidence Act 1984, jurisprudence of the European Court of Human Rights, and joint, comparative research that JUSTICE has conducted recently in police stations in Scotland (see our publication Inside Police Custody).

When the Bill was first introduced, it contained proposals for the abolition of the corroboration rule. We have previously voiced concerns about the evidence base for this proposed change and the lack of safeguards for the accused should the rule be removed (see the responses to the Post Corroboration Safeguards Review,Reforming Scots Criminal Law and Practise, and our event on the corroboration debate). In April 2014 the progression of the Bill was paused to allow for the Post Corroboration Safeguards Review chaired by Lord Bonomy to consider this question. Since its Report, the Government has decided to remove the changes to corroboration from the Bill. We welcome this decision. Nevertheless, the review process has revealed that there are changes required to other areas of criminal procedure that are in our view necessary irrespective of the corroboration rule. Further, we continue to have concerns regarding proposals for other reforms to the criminal law, in particular, further restrictions on appeals, which we do not consider have yet been justified, nor appropriate replacements envisaged.

In summary, our position is:

  • The power to arrest must be clearly circumscribed;
  • The full rights of suspects must be delivered upon detention in police custody, including the right to interpretation and translation;
  • Decisions to continue detention or delay rights must be taken by senior officers, independent of the investigation;
  • Conditions of liberation must be set out in legislation and pertain to the possible conduct of the suspected person;
  • Review of conditions following liberation must take place at reasonable intervals throughout the conditional release period;
  • A full restatement of suspects’ rights in police custody must take place at a reasonable period prior to interview for them to be useful;
  • Delay or denial of the right to have a solicitor present must be for narrowly circumscribed reasons in exceptional circumstances;
  • No distinction should be made between children under and over 16 years old. The assistance of a solicitor and parent or guardian during police detention must be available to all children without waiver. If a distinction is to be made for over 16 year olds, clear written guidance should explain the significance of the right;
  • Consultation with a solicitor must be in person, save for exceptional circumstances;
  • Detailed provision must be made in the Bill for the circumstances in which a waiver of legal advice will be valid;
  • The period for pre-trial detention should not be extended;
  • New sections should be added to the Bill to insert provisions enabling:
    • A policing code of practice on arrest, search and detention powers, including recording of police interviews and other procedures;
    • A test of admissibility of evidence in accordance with the principles of fairness;
    • Prohibition on identification of suspects in the courtroom during trial; and
    • A qualitative no case to answer test of the prosecution’s case.
  • The High Court must retain its discretion to extend time for appeals and exercise this as it deems appropriate;
  • The High Court must not be required to consider whether the quashing of a conviction, after finding a miscarriage of justice, is in the interests of justice.