Scottish criminal procedure has been the subject of much debate following the decision of the UK Supreme Court in the case of Cadder v HM Advocate . In Cadder, the Supreme Court applied the judgment of the Grand Chamber of the European Court of Human Rights in Salduz v Turkey , which held that the right to a fair trial would be infringed if the prosecutor relied on admissions made by a suspect who had been interviewed before having the benefit of access to a lawyer. The Supreme Court made clear that the Scottish procedure that allowed a person to be detained for up to six hours without access to a lawyer could not continue.
The Scottish Government made immediate changes to the rules on detention (discussed below) but in October 2010 the Scottish cabinet secretary for justice, Kenny MacAskill MSP, signalled that a wider review of the key elements of Scottish criminal law and practice was necessary. Lord Carloway was commissioned to lead this review and his team reported on 17 November 2011. The recommendations of the review are currently being considered by the Scottish Government.
This article provides a snapshot of key aspects of current Scottish procedure, how these compare with provisions in England and Wales, and proposals for changes proposed by the Carloway review.
In Scotland, police powers of investigation are not contained in a single regime equivalent to the Police and Criminal Evidence Act and related codes of practice that apply in England and Wales. Police powers to detain, arrest, search and question in Scotland come from a mixture of the common law and the Criminal Procedure (Scotland) Act 1995.
Detention and arrest
A crucial difference relates to arrest. In England and Wales a suspect may be arrested on suspicion of having committed an offence. The current position in Scotland is that a police officer must have reasonable grounds for believing that they are entitled to charge a person before they will be entitled to arrest them. Where the officer has reasonable grounds for merely suspecting that an accused has committed an offence, but has not as yet obtained sufficient information to justify a charge, detention is the appropriate action.
Detention is a power short of arrest in Scotland that the police can use to take an individual into their custody to enable them to carry out further investigations. Before detaining a person, a police officer must have reasonable grounds for suspecting that person has committed or is committing an offence punishable by imprisonment. If prison is not a sentencing option, a person cannot be detained. There are many statutory offences that do not allow for imprisonment: in Scotland a person cannot be lawfully detained during an investigation relating to such offences.
The changes introduced post-Cadder mean that a detained person can be held for a maximum of 12 hours, although the police can apply for an extension of up to a further 12 hours. The key change introduced by Cadder was the right of a detained person to a private consultation with a solicitor prior to, and at any time during, questioning at a police station. The Carloway review has recommended that the current scheme, which distinguishes detention and arrest, should be abolished. In its place would stand a general power of arrest to take a suspect into custody where there is a ‘reasonable suspicion’ that a person has committed a crime. This would bring Scotland more into line with the current position in England and Wales.
The Scottish police have the power to detain and question a suspect in custody where there are reasonable grounds for suspicion. One purpose of such questioning is to find out if a suspect admits that they have committed an offence. Once suspicion is confirmed, the common law protects the suspect from further questioning and requires the police to charge the suspect. However, the Carloway review reports that frequently the common law approach is not followed and police questioning takes place after the point when police are in a position to charge the suspect. In England and Wales the general rule is that police questioning is not permitted after charge.
The Carloway review recommends abolishing the Scottish prohibition against police questioning after charge, and substituting in its place a process whereby the police may apply for permission to question a suspect after they have been charged.
The right to silence
In Scotland protection from self-incrimination includes the right to silence when asked questions by the police. The Scottish courts are not entitled to draw an adverse inference from the silence of the accused during police questioning. This is a key difference with the position in England and Wales where a judge or jury is permitted to draw an adverse inference when a person facing trial seeks to rely on a fact not mentioned during police questioning. The Carloway review recommends retaining the status quo.
The role of the Crown Office and Procurator Fiscal Service
The Crown Office and Procurator Fiscal Service is the sole public prosecutor in Scotland. At the conclusion of their investigation, the police will send a report to the local procurator fiscal. Prosecutions can be brought where there is sufficient evidence, and prosecution would be in the public interest. If satisfied on both of these questions, the Procurator Fiscal will decide who should face charges, what these should be, and in which court. The views of the alleged victim will be taken into account but the victim does not decide whether or not to ‘press charges’.
The Criminal Courts
The Procurator Fiscal decides which court and which procedure to follow in bringing a prosecution. The accused has no right to demand that their case be taken in a particular court or to insist upon being heard by a jury.
The High Court of Justiciary
The High Court, which sits permanently in Edinburgh and also goes ‘on circuit’ around Scotland, hears the most serious cases. There is no limit to the level of fine or the length of imprisonment the Court can order (except in relation to statutory offences).
Sheriff Courts across Scotland deal with the vast majority of criminal cases, either with a sheriff sitting alone (summary procedure), or with a jury of 15 (solemn procedure). Sitting alone, the sheriff can impose a fine (current maximum £10,000) and imprisonment for a period not exceeding 12 months for a first offence. In solemn procedure, the sheriff can impose an unlimited financial penalty and imprison for up to five years.
Justice of the Peace Courts
Justice of the Peace Courts deal with less serious crimes, but can try most statutory offences. A justice of the peace can imprison for a period not exceeding 60 days and fine (current maximum £2,500 unless statute provides for a different penalty).
The rule of corroboration means that the Crown must put before the court evidence from two separate sources showing that 1) a crime was committed and 2) that the accused was responsible for committing the crime. In England and Wales corroboration remains a requirement in certain cases but it is not a general requirement of the criminal law in the same way as it is north of the border
The Carloway review’s proposals to abolish this key characteristic of Scottish criminal procedure grabbed the headlines when the review was published. The review’s authors comprehensively rejected the notion that corroboration reduced the prospect of miscarriages of justice and made the point that, in cases where there is only one witness, a rule preventing prosecution can create miscarriages of justice.
The Scottish courts can apply a discount to the sentence that might otherwise have been imposed on a convicted person to take into account the fact that an early plea of guilty can save public money, court time, avoid inconvenience to witnesses, and avoid distress. Generally speaking the discount will be greater the earlier that a plea is tendered, but the decision on discount is entirely at the court’s discretion.
Unlike the position in England and Wales, at present in Scotland there are no statutory guidelines for judges to follow in passing sentence.
The High Court of Justiciary also sits as an appeal court in Edinburgh, and indeed is the only criminal appeal court in Scotland. A person can appeal against conviction, sentence or both. Appeals will usually be heard by two or three judges. Where a person appeals against sentence the original sentence can go up as well as down.
The High Court is the final criminal court of appeal. Unlike civil procedure there is no further right of appeal to the UK Supreme Court. However, a procedure does exist under the Scotland Act to allow ‘devolution issues’ concerning alleged contravention of the accused’s rights under the European Convention on Human Rights to be taken to the Supreme Court.
Once a person has been tried for an offence generally they cannot be prosecuted again in relation to that matter other than in exceptional circumstances, eg where new evidence comes to light after the original trial has taken place.
Regulatory bodies with the power to investigate statutory offences do not generally have the power to prosecute in Scotland and will report matters to the Crown Office and Procurator Fiscal Service. There are over 50 bodies or ‘specialist reporting agencies’ reporting cases to the procurator fiscal, who retains discretion on what action to take, if any. The Crown Office has produced a guide for specialist reporting agencies reporting to the procurator fiscal (http://www.copfs.gov.uk/sites/default/files/Publications/Resource/Doc/13547/0000442.pdf).
By Paul Marshall, associate, Brodies LLP.
Cadder v HM Advocate  SC (UKSC) 13
Salduz v Turkey  49 ECRR 19