Review of Scotland’s criminal justice system

A consultation paper has been launched in Scotland aimed at reforming parts of the criminal justice system following the Cadder ruling.

The High Court Judge in Scotland launched the consultation paper last week seeking views on issues such as whether the requirement for corroboration – unique to Scottish law – should remain.
Lord Carloway said he hoped to initiate an “open discussion” of the issues.

His review of the criminal justice system follows a human rights judgement by the UK Supreme court. Last October, the Cadder ruling outlawed evidence obtained from police interviews carried out without a lawyer present.

Justice Secretary Kenny MacAskill called for the review following the judgement. It will cover the law and practice relating to the detention and questioning of suspects, their access to legal advice and how to ensure that the police, legal professions and courts can operate effectively and in a way that safeguards the rights of all involved.

Lord Carloway said: “The aim of the consultation is to stimulate open discussion of the issues raised, rather than to present draft recommendations for response. I expect that there will be special attention on some topics in particular, the requirement for corroboration and whether there should be any inference from a suspect’s silence in answer to questioning. But it is important to consider the functioning of the system as a whole.    

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

The consultation, which forms part of the review process, poses questions about core elements of the system as it currently stands.

It also seeks views on, among other things, whether the current system of detention and arrest could be replaced, the arrangements for suspects to be given legal advice, the powers and rules for police questioning and whether the requirement for corroboration should continue.  

In addition it picks up on some of the issues debated when the emergency legislation was passed, including the role of the Scottish Criminal Cases Review Commission.

“What are needed are clear, effective, efficient and practical rules and procedures which all can understand and follow.   

“This review offers a real opportunity to make a major contribution to the further development of a fair and effective criminal justice system and I encourage everyone with an interest to take part,” added Lord Carloway.

Earlier this year, Scotland’s Crown Office and Procurator Fiscal Service (COPFS) released figures which revealed that more than 800 cases could not proceed, including five cases of rape and one of a firearms offence, because evidence was taken without a solicitor being present. Estimates also suggested that there were 3,471 cases where the issue of the admissibility of evidence from police interviews had been raised by the defence since the Cadder ruling.

COPFS completed an analysis of the impact of the ruling in the three months since the judgement.
During that time, a total of 867 cases could not proceed or could not continue as a direct result of the judgement. The vast majority of cases affected were summary prosecutions.

The consultation will close on June 3.