Committee
Justice Committee 08 March 2011
08 Mar 2011 · S3 · Justice Committee
Item of business
Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010
Jodie Blackstock
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As an English barrister, perhaps I should pick up on that. There is a 24-hour period before someone has to attend court, but reviews are built into that period. There has to be a review after six hours and every nine hours thereafter. There are welfare checks to ensure that the person who is being held is fit. That is done for all sorts of purposes, including to check whether the person should still be detained. The custody officer reviews the person’s welfare and checks with the investigating officer what they are doing and whether the investigation is proceeding.The Cabinet Secretary for Justice’s assertion in the debate that Scotland is replicating the English system is not entirely correct. The process that I have described is built into the relevant English act. On receiving the information from the Crown when a case comes to court, the first thing for a defence lawyer to do is to check the custody record, including whether the reviews were carried out correctly. If they were not, a challenge would be made that the detention was unlawful. The unfortunate result of having only a single debate in the Parliament was that it was not possible for that information to be put before the Parliament. A 12-hour period of detention without review is concerning for anyone, particularly any vulnerable persons who are detained. You are taking evidence next week from the Association of Chief Police Officers in Scotland. I hope that ACPOS will assure you that officers are being trained and advised that 12 hours should be kept as the maximum period and that there should be review throughout. That should be put on a statutory footing. It is most unfortunate that it was not put that way.
In the same item of business
The Convener
Con
Agenda item 3 is an evidence session on the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010, which resulted from an emergenc...
Nigel Don (North East Scotland) (SNP)
SNP
Good morning, colleagues. I start by asking a simple question. Regardless of the substance of what we enacted—although that is not entirely irrelevant, of co...
The Convener
Con
I do not know what you think is the best way of doing this—whether you all want to speak on all the questions, or whether you will decide who is the best per...
Professor Alan Miller (Scottish Human Rights Commission)
I am happy to kick off. First, thank you for inviting the Scottish Human Rights Commission to take part in this important discussion.It is a matter of regret...
Nigel Don
SNP
Thank you, Professor. Before I let anybody else pick up on the general issue—I want to stick to the general issue if we possibly can—I have a further questio...
Professor Miller
In my opinion, there was not.
Nigel Don
SNP
I put the question to the other members of the panel. Does any of you believe that anything in the legislation needed to be done on that day?10:45
Jodie Blackstock (Justice)
I will answer for Justice. On behalf of Justice, I thank the committee for hearing from us today.Our submission mentions a 2009 inquiry by the House of Lords...
Nigel Don
SNP
May I stop you there? I take your point. I have read your submission, but it is a matter of definition. If we need emergency legislation, we do not have time...
Alan McCreadie (Law Society of Scotland)
I am not entirely sure whether there was anything in the act that had to be enacted under emergency procedure, particularly given the substance of the ruling...
Raymond McMenamin (Law Society of Scotland)
The emergency approach seemed to have been premised on the basis that the existing legislation was not compliant with the European convention on human rights...
Nigel Don
SNP
Indeed. I am wondering whether I could ask the question of Mr McGovern, as a practising lawyer. Can I describe you that way? You are not the only practising ...
John McGovern (Glasgow Bar Association)
No. I do not. I extend my thanks to the committee for inviting the Glasgow Bar Association. I do not think that I am the only practising lawyer here—
Nigel Don
SNP
I was not suggesting that you are, but others are here wearing other hats.
John McGovern
I concur with everything that has been said by my colleagues.After it became clear in the spring what the judgment in Cadder would be, after the Lord Advocat...
Cathie Craigie
Lab
Nigel Don’s line of questioning has taken me to where I wanted to go. The Lord Advocate issued interim guidelines in June 2010, and the revised guidelines we...
Professor Miller
The interim guidelines were adequate on an interim basis. I take my colleagues’ point that the issue was admissibility: the need to ensure the right to acces...
Cathie Craigie
Lab
Can you accept, however, that the back benchers and members of this committee who found themselves bounced into having to take decisions could accept the arg...
Raymond McMenamin
Why not start at six hours? Six hours has been the period of time that has been in place since what is now section 14 in the 1995 act was introduced in the C...
The Convener
Con
Two points arise. First, the clear practical issue for island communities is how long it takes for a solicitor to get to a police station to see a detained p...
Raymond McMenamin
I take the point about island issues. Geographical difficulties may lead to exceptional circumstances in which longer detention times are needed, but why mak...
The Convener
Con
What about the experience of England and Wales?
Jodie Blackstock
As an English barrister, perhaps I should pick up on that. There is a 24-hour period before someone has to attend court, but reviews are built into that peri...
Professor Miller
We should not easily take the default position that those who live on the islands, or in remote parts of Scotland, should automatically be expected to spend ...
Cathie Craigie
Lab
Do you recall the argument on whether the guidance would have been robust enough to meet challenge along the lines of Cadder?11:00
Jodie Blackstock
I appeared in the Supreme Court on behalf of Justice for our intervention in Cadder. The law lords made it clear that there ought to be a period of debate ov...
Robert Brown
LD
I have a couple of questions about the consultation. If I may play devil’s advocate, the Scottish Government might say that it could not do much openly with ...
Professor Miller
No. As some members may or may not recall, we sent round a fairly frantic e-mail an hour or so before you went into the chamber to debate and vote on the leg...
Robert Brown
LD
Would damage have been done and more cases added to the toll had there been a delay of two, three or four weeks to let the Parliament look at the matter a bi...
Professor Miller
No, because we had the interim safety net of the Lord Advocate’s guidelines. The police were allowing lawyers into police stations, so any evidence would hav...