The Criminal Justice (Scotland) Act 2016 is effecting substantial changes to Scots law and procedure. This article focuses on challenges that will arise in practice at the first stages after arrest

The Criminal Justice (Scotland) Act 2016 represents a major change in the landscape of criminal practice and procedure. For agents engaged in this field, the Act presents some major challenges. This article highlights some of the key challenges that will occur at the initial stages of a case.

In broad terms, the Act itself started its life as the Criminal Justice (Scotland) Bill back in 2013. It stems not only from the Scottish Government’s wider justice policy, but, in particular, Lord Carloway’s review of criminal law and practice, as well as Sheriff Principal Bowen’s independent review of sheriff and jury procedure. Some provisions of the Act are already in force. These are not discussed here. The provisions set out in this article are expected to come into force later this year.

Powers of arrest

In the first instance, the Act abolishes the concept of detention, removing the distinction to be drawn between detention (as one would encounter under s 14 of the Criminal Procedure (Scotland) Act 1995) and arrest as we know it. Rather, the Act refers to arrest only. Section 1 provides, inter alia, that a constable may arrest a person without warrant if the constable has “reasonable grounds” for suspecting that the person has committed or is committing an offence. There is no longer a procedure under which a person may be detained and thereafter arrested and charged.

Arguably this represents a significant shift away from current practice. However, what is absolutely a marked shift away from current practice and procedure is s 2(1) of the Act, which narrates that a person may be arrested under s 1 more than once in respect of the same offence. The Act also makes a distinction between a “person not officially accused” – someone who has not been charged, but is treated as a suspect – and someone who is deemed a “person officially accused”, defined as a person who has been charged, or against whom the prosecutor has initiated proceedings (s 63 of the Act). Importantly also, see the observations below regarding post-charge questioning.

More than one arrest, more than one interview

If a client is to be arrested on more than one occasion, this entirely new practice creates some difficulties. Consider this scenario. You are instructed to attend with your client at a police interview on a Monday evening regarding a complex financial fraud case. Your client is released under the investigative liberation provisions (see further right). The client is then taken to the police station on the following Wednesday morning for a further interview. This time you are not available due to court commitments.

Does the client therefore represent themselves at the interview? In certain cases (see later comments), this would not be possible. Also, if an alternative solicitor has to attend, this must surely impact on continuity? Importantly, how willing is the Scottish Legal Aid Board to fund multiple interviews? Given that s 32 permits the right of the client generally to insist that a solicitor is present at the interview (as opposed to giving a telephone consultation only), this will clearly put a significant amount of pressure on firms to ensure that there is always a solicitor able to attend in person. In any event, the potential lack of continuity in these circumstances clearly has implications for risk management.

As a side observation, the present general 12-hour limit will continue to apply, but will be reduced by the length of time spent in custody during each prior interview.

Interviews of children

Section 33(2)(a) provides that a person under 16 cannot consent to being interviewed without a solicitor being present. Similarly, s 33(2)(b) provides that a person who is 16 or 17 and subject to a compulsory supervision order (as defined in the Children’s Hearings (Scotland) Act 2011) cannot give such consent either. (There are other restrictions in this section which are not discussed here.) In any event, and beyond the difficulties discussed above, what happens if a suspect under 16 refuses the services of a solicitor? What if the person then withdraws their instructions halfway through the interview? Although well intended, this particular provision will undoubtedly create difficulties.

It would appear that even a telephone consultation would not be sufficient either. A solicitor-client relationship cannot be created by virtue of a phone call from the police or the solicitor contact line on the basis that a person has been detained and will have to be represented. In addition, how will the solicitor get paid if they have spent much time travelling to the police station in the middle of the night, only for the person then to refuse to provide instructions? Will the Board make provision for that? Solicitors cannot be expected to incur such time and expense without being properly remunerated.

Investigative liberation

As a corollary to the power of arrest and multiple arrests, the Act introduces the concept of “investigative liberation”. Section 16 in very broad summary permits the police to liberate a suspect pending further enquiries (see s 16(2)). Conditions may or may not be attached. Any such conditions cease to apply after 28 days, or earlier on the occurrence of certain circumstances: s 17. This time period avoids matters dragging on for a suspect unnecessarily.

The concept of investigative liberation, however, creates issues. Although s 18 creates a duty on the police to keep the conditions under review, a suspect may in any event instruct a solicitor to lodge an application for review with a sheriff (s 19). This is not without difficulty. In the absence of a standard prosecution report, it would be difficult to imagine how the procurator fiscal could even start to make any representations here. At best, the information would be very limited. It would be harder to imagine how any sheriff could come to an informed view and judgment with such a case.

Bail undertakings

This entirely new concept of investigative liberation should not be confused with bail undertakings. Bail undertakings will remain and the provisions governing such undertakings are to be found in ss 26-30 of the Act. However, it is perhaps worth highlighting that the practice in terms of bail undertakings will change. Although the procurator fiscal appears to have additional powers, of interest is s 30 which permits a person to apply to the sheriff for review of what would appear to be special bail conditions – that is to say outwith the conditions prescribed in terms of s 26(3)(a). The fact that a review can, it appears, be sought of special conditions of bail is encouraging on one view, but it is again questionable whether the procurator fiscal will have all the necessary information to hand.

Post-charge questioning

Section 35 of the Act introduces post-charge questioning, a new concept. If a person has been officially accused of committing an offence, the court may authorise the police to interview the suspect again. Authorisation will only be granted if the court is satisfied that it is necessary in the interests of justice (s 35(2)). The remainder of the section goes on to specify the actual tests in some more detail. For the first time therefore, it would appear there will be an opportunity for the procurator fiscal to effectively counter, or enquire as to, any defence that is proffered.

Changed view

The Act presents significant challenges and indeed a substantial shift away from practice and procedure as we know it. Funding of all these new hearings and interviews clearly remains a contentious issue. Proposals were put forward recently by the Scottish Government and the Board, although these are far from satisfactory at this stage, especially if one is to be mindful that accounts are liable to be abated for whatever reason. It is clear, however, that when this is read with the draft code of practice, the landscape is going to look rather changed, if it is not changing already.

The Author
Alan W Robertson is senior civil and criminal litigation solicitor with MBS Solicitors, Edinburgh
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