The Carloway Review Report and Recommendations 17 November 2011 FOREWORD The decision of the United Kingdom Supreme Court in Cadder v HM Advocate had a substantial and immediate impact on the criminal justice system. The Scottish Government felt obliged to introduce emergency legislation to correct the flaws identified in the system’s framework. The Crown Office abandoned hundreds of prosecutions, some of which were for very serious crimes. Significant uncertainty remained concerning the meaning of the decision. Several consequent subsidiary objections to evidence were taken in cases throughout the country, causing disruption and delay to court processes. Appeals and references to the High Court followed. This prompted the Lord Advocate to refer a selected group of these appeals and references directly to the United Kingdom Supreme Court in order to obtain clarity on key issues. Cadder and its consequences could be described simply as the necessary application of the law, deriving from the implied right of access to a lawyer identified by the European Court under Article 6 on the European Convention of Human Rights. As Lord Hope put it in his opinion: “…there is no room … for a decision that favours the status quo simply on grounds of expediency. The issue is one of law… It must be faced up to, whatever the consequences”. However, the sudden over-ruling of previously well-established and accepted law is not the best way to bring about change in any criminal justice system. It leads to instant reactions rather than measured and thought-through plans for reform. It is 1 highly disruptive to the system generally and has the potential to cause injustices in existing cases while attempting to redress perceived miscarriages in others. Cadder was a serious shock to the system. There is an acute need to ensure that, as far as possible, the system is not vulnerable to further upheaval as a result of a single court judgment. The underlying and long-lasting implication of Cadder is that the system must fully embrace and apply a human rights based approach. This is not to say that it must adhere to a standardised Convention compliant template and abandon all traditions that have developed over centuries. But in promoting further evolution of a system, which should remain specifically designed for Scottish society, a more conscious application of the express and implied rights of the Convention is required. The understanding of human rights should not be the sole preserve of lawyers. It is important, if the law is to be accessible, that society does not develop a system that buries human rights deep within legal architecture. The ability to apply basic human rights should not require a tortuous exploration of Strasbourg jurisprudence or an encyclopaedic knowledge of legal texts. If it does, the system will end up with Dickens’ vision in Bleak House of lawyers “mistily engaged in one of the ten thousand stages of an endless cause, tripping one another up on slippery precedents, groping knee-deep in technicalities, running their goat-hair and horse-hair warded heads against walls of words and making a pretence of equity with serious faces”. It is, of course, the state’s role to ensure, as far as it is practicable to do so, that its citizens enjoy the protections to which they are entitled under the Convention. But 2 this does not entail that the state should be bound to provide its citizens with universal, free and limitless access to lawyers. Nevertheless the system for which it is responsible must respect, promote and protect human rights in an effective manner. As well as ensuring the proper treatment of those suspected of having committed a crime, it must protect the rights of all those affected or potentially affected by crime. It is with these basic ideas in mind that the Review has addressed its task. That is why, as was promised in the consultation document, the opportunity has been taken to explore the possibility of introducing radical changes to some of the fundamental precepts and principles of the criminal justice system, rather than merely affirming or denying whether the emergency legislation was, and is, effective. A year-long review cannot address every issue in detail; but the Review has been able to cover much ground. In this context, I would like to thank the members of the Reference Group for their invaluable advice. In both the plenary sessions, and especially in the focused “mini-meetings”, the Review has been able to explore and test options for change in some detail. This has been a key part in the development of this report. I would also pay tribute to the efforts of the Review’s own small team in organising the process of review, considering the many papers involved in that task, assisting the research programmes and ultimately seeing that all of the Review’s ideas and conclusions are expressed in what is hopefully a readable and easily understood final report. I would also like to thank the many people who have given the Review the benefit of their expertise in, and experience of, other jurisdictions. This applies particularly to those who assisted the Review in Dublin, London, Manchester, Birmingham and Oxford, and those from Europe and the Commonwealth with whom the Review was 3 able to meet over the course of the year. Their willingness to help and their generosity in the giving of their time and insights have been a real highlight of the process. I am extremely grateful for the many responses to the consultation which institutions, groups and individuals took time to prepare and contribute. The breadth and quality of these contributions show how much can be achieved when participants are focused and well motivated. This Review has not been engaged in a theoretical and academic debate but in proposing practical measures that directly affect suspects, victims, law enforcement agencies, the legal profession, the courts and Scottish society as a whole. Almost all of those who had something of value to contribute have done so willingly, promptly and conscientiously. I am pleased to present my Report with its several recommendations. As with the consultation document, although I have been helped enormously by the many participants in the consultation and evidence gathering exercise, the final responsibility for its contents are mine alone. I hope and trust that it will make a significant contribution to the development of a modern, fair, effective and distinctly Scottish criminal justice system for the future. LORD CARLOWAY 4 CONTENTS List of Abbreviations 7 1.0 Introduction 11 2.0 Historical Background 23 3.0 Convention Considerations 49 4.0 The Proposed Changes – An Overview 61 5.0 Custody Overview 71 5.1 Arrest and Detention 75 5.2 Period of Custody 97 5.3 Liberation from Police Custody 123 6.0 Investigation Overview 135 6.1 Legal Advice 141 6.2 Questioning 169 6.3 Child Suspects 203 6.4 Vulnerable Adult Suspects 225 7.0 Evidence Overview 235 7.1 The Origins and Development of Corroboration 241 7.2 Corroboration 255 7.3 Sufficiency of Evidence 287 7.4 Exculpatory and Mixed Statements 301 7.5 Adverse Inference 315 8.0 Appeals Overview 329 8.1 Appeal Procedures 331 8.2 Finality and Certainty 355 Annexes Annex A – Research Report – The Impact of 371 Corroboration on Prosecution Annex B – Process Maps 379 Annex C - van Kalmthout et al: Pre Trial Detention in 385 the European Union: An analysis of Minimum Standards Annex D – Reference Group and Review team 387 Annex E – Visits and Meetings 389 Annex F – Consultees 399 Annex G - Materials Referred to in the Report 401 5 6 LIST OF ABBREVIATIONS 1995 Act The Criminal Procedure (Scotland) Act 1995 2010 Act The Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 AC Appeal Cases Law Reports (England and Wales) ACPOS Association of Chief Police Officers in Scotland ALR Australian Law Reports Ambrose Ambrose v Harris 2011 SLT 1005 Cadder Cadder v HM Advocate 2011 SC (UKSC) 13 CCRC Criminal Cases Review Commission CDS Criminal Defence Services Chalmers Chalmers v HM Advocate 1954 JC 66 CJ Chief Justice CLR Commonwealth Law Reports (Australia) COM European Commission Convention The European Convention on Human Rights and Fundamental Freedoms COPFS Crown Office and Procurator Fiscal Service CPS Crown Prosecution Service (England and Wales) CR Criminal Reports (Canada) Cr App R Criminal Appeal Reports (England and Wales) DPP Director of Public Prosecutions DR Decisions and Reports of the European Commission of Human Rights DTI Department for Trade and Industry Dayanan Dayanan v Turkey (no 7377/03), 13 October 2009 ECHR European Convention on Human Rights EHRR European Human Rights Reports Emergency The Criminal Procedure (Legal Assistance, Detention and Appeals) legislation (Scotland) Act 2010 EWHC England and Wales High Court Gafgen Gafgen v Germany (2011) EHRR 1 7 HCJAC High Court of Justiciary, Appeal Court (Scotland) HRA Human Rights Act 1998 Hume Hume: Commentaries on the Law of Scotland Respecting Crimes (Bell ed, 1844) IECCA Court of Criminal Appeal (Ireland) IESC Irish Supreme Court ILRM Irish Law Reports Monthly IR Irish Reports JC Justiciary Cases (Scotland) LJ-C Lord Justice-Clerk LJG Lord Justice General Macdonald Macdonald: Practical Treaties on the Criminal Law (5th ed, 1948) McLean HM Advocate v McLean 2010 SCCR 59 MLR Modern Law Review Moorov Moorov v HM Advocate 1930 JC 68 NSWLR New South Wales Law Reports NT CCA Northern Territories Court of Criminal Appeal (Australia) NZSC New Zealand Supreme Court PACE Police and Criminal