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Law Society questions plans to introduce two categories of arrested person

01 October 2013 | tagged News release

The Law Society of Scotland has questioned plans to create two categories of arrested person under the Criminal Justice (Scotland) Bill.

After giving oral evidence on the arrest and custody sections of the Criminal Justice (Scotland) Bill at the Scottish Parliament today, Tuesday, 1 October, Grazia Robertson, from the Law Society's Criminal Law Committee, said that there was no need to change the current system of arrest and detention as proposed by the Bill.

"The Bill aims to modernise and simplify procedure but what is being proposed seems more complex, more bureaucratic and potentially more costly than it is at the moment. 

"We don't believe there is a need to introduce separate stages for when an arrested person is 'not officially accused' and 'officially accused' when the current system of arrest and detention is already compliant with the European Convention of Human Rights and is widely understood and working well."

The Law Society has also stated that any arrested person under 18 should not be able to waive their right to have a solicitor present if they are to be interviewed by the police.

Robertson said: "While we are pleased to see that the Bill provides for anyone under 16, we think it needs to go further and ensure that any arrested person up to the age of 18 cannot waive their right to a lawyer. The Bill itself classifies anyone under 18 as a child (section 42) so while there are additional provisions for those aged 16 to 18 which would allow them to refer to their parents or carer, we fear that not every parent or carer could provide the required protection and in some cases, may be ill-equipped to help.

"The same should also apply to anyone who appears not to understand sufficiently what is happening or cannot communicate effectively with the police should be provided with support. This support should not be restricted to situations where this is due to a mental disorder."

In its written response to the Bill, the Law Society raised concerns about new police powers which would allow conditions to be imposed on people released from custody but who have not been charged with committing an offence.

Robertson said: "We have to remember that these will be people who have not been charged with having committed any crime but are nevertheless obliged to conform to certain conditions after being released, which could mean staying away from their place of work or home for almost a month while police continue to carry out investigations. This is a different situation from someone who has been charged but has been granted bail by the courts until their next court appearance.

"We're also concerned that the Bill as drafted sets a blanket 28 days for the period of investigative liberation rather than it being up to 28 days as recommended by Lord Carloway in his report."

The Society has said further clarification is required before the Bill is passed.

Robertson added: "Investigative liberation is a substantial curtailment of freedom and should not be incorporated into the Bill without careful scrutiny. It is not at all clear why existing police powers are not thought to be sufficient for the task."

The Law Society is expected to provide oral evidence before the Justice Committee on the Criminal Justice (Scotland) Bill's proposals to abolish the requirement for corroboration at a further evidence session. The Society believes that the requirement for corroboration should not be abolished without the introduction of equally robust safeguards to prevent the risk of miscarriages of justice in Scottish courts.

ENDS                                                                                                  1 OCTOBER 2013

The Law Society's written response to the Criminal Justice (Scotland) Bill is available on the website

FOR FURTHER INFORMATION: Please contact Val McEwan on 0131 226 8444 / 07825 206468 or Julia Brown on 0131 476 8204 /

01 October 2013

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