Hansard

The amendments in this group relate to investigative liberation, which is a new process for the police. At present, if the police want to liberate a suspect subject to conditions such as requiring them not to approach victims or witnesses, they must charge that person. Lord Carloway recommended that the police should be able to release a suspect subject to conditions, even though the suspect has not been charged, but that the conditions should apply only for a limited period. That recommendation recognises that in some of today’s complex police investigations the police might need to break off an interview while they wait for, say, laboratory results or mobile phone records. Imposing conditions on a suspect for a limited period means that they can leave the suspect at liberty while other aspects of the investigation are progressed. However, the police can also take the suspect straight back into custody if they attempt to interfere with victims or witnesses or otherwise compromise the investigation. My amendments in this group, which I will speak to in a moment, are aimed at ensuring that the investigative liberation process works fairly and proportionately. Although I agree that it is important to ensure that investigative liberation conditions do not have an unnecessary impact on a suspect’s private life, I regret to say that the Government cannot support the amendments in the names of John Finnie and Elaine Murray. On amendments 18 to 27, in the name of John Finnie, I entirely agree that it would not be appropriate for every suspect released on investigative liberation to be subject to conditions for a full 28 days. However, the bill already ensures that that will not happen. As drafted, the bill does not impose a blanket 28-day investigative liberation period; instead, it provides that any investigative liberation conditions that have not been lifted before then fall away automatically after 28 days. That reflects Lord Carloway’s recommendation that 28 days is the appropriate maximum period for investigative liberation. Section 15 sets out that conditions must end after 28 days and can end sooner, while sections 16 and 17 set out how conditions can be modified or removed before the end of the 28-day period. In particular, section 16 provides that an inspector must keep under review whether there are still reasonable grounds to suspect that the person subject to the conditions committed an offence and whether the conditions imposed continue to satisfy the demanding test of being necessary and proportionate to ensure the proper conduct of the investigation. If the inspector is not satisfied that those tests are met, either more proportionate conditions can be imposed or the conditions must be lifted altogether. Moreover, if a suspect is not satisfied with the police’s review of the appropriateness of the conditions, section 17 allows the suspect to challenge the conditions before a sheriff, who will also have the power to modify the conditions or to remove them completely. Investigative liberation is all about the conditions that are imposed, and the bill makes it clear that those conditions can be removed after review by an inspector or a sheriff. That can happen at any time, and there is no requirement for them to be in place for 28 days. The bill states that, as soon as conditions stop being both necessary and proportionate, they must be removed or modified. In other words, the 28 days is a backstop. The decision on when it is no longer appropriate to keep a person subject to investigative liberation will be made on a day-to-day basis as the investigation into the offence unfolds. The amendments in the name of John Finnie would cause investigative liberation conditions imposed on the suspect to fall away after a number of days not exceeding 28 days, which the police are to specify at the time of releasing the suspect. It might be possible in some cases for the police to do what amendment 19 would require them to do, which is to estimate and specify at the time of release the period of time required to carry out further investigations. Where the police are able to do so, they could set a shorter period at the outset, but that would only ever be an estimate. Investigations are not always predictable. The purpose of imposing investigative liberation conditions is to protect the interests of justice and to help to protect victims and witnesses. If the police guessed wrongly by a day or two, and underestimated how long would be required to carry out the investigation, that would mean that the investigative liberation conditions would cease to apply at a time when they were still needed to protect alleged victims. 10:45 Amendment 22 would allow a sheriff to review not only the investigative liberation conditions imposed on a suspect but the period specified by the police during which the conditions would run. In other words, amendment 22 presupposes that the other amendments in this group in the name of John Finnie will be supported. I do not think that it is feasible or in the interests of justice to require constables to specify a period for investigative liberation to run, and it follows that there is no reason for giving sheriffs the power to review any period specified. I therefore urge John Finnie not to press amendments 18 to 27. Amendment 47, in the name of Elaine Murray, would change the purpose for which investigative liberation conditions may be imposed. Conditions would still have to be necessary and proportionate but would have to be for the purposes of securing specific things, rather than for the broad purpose of ensuring the proper conduct of the investigation. I am concerned that the list of purposes for which conditions could be imposed could be unnecessarily restrictive and may suggest that the detailed purposes should be linked to standard conditions. Investigative liberation conditions need to be tailored to the needs of the particular investigation. Standard conditions could be too restrictive in some circumstances and insufficient in others. The thrust of any condition imposed under investigative liberation is that it should be necessary and proportionate. Some of the purposes listed in amendment 47 appear inconsistent with that general principle. There is no requirement for a person to surrender themselves to custody, as the police already have the power to arrest during the period of investigative liberation. Although it might seem pertinent for the police to take into account a person’s protection and wellbeing when setting conditions, that could lead to conditions being set that would not be proportionate, or indeed necessary, for a person not charged with an offence. I therefore invite Elaine Murray not to move amendment 47, but I will undertake to consider before stage 3 whether an amendment is necessary to expand or to illustrate what the general purpose of “ensuring the proper conduct of the investigation” under section 14 might cover. I turn to the amendments in my name. The bill as introduced allowed a suspect to be subject to a number of periods of investigative liberation, provided that the total of the periods did not exceed 28 days. Amendments 142, 145 and 147 change the position so that investigative liberation conditions can be imposed on a suspect only for a maximum period of 28 consecutive days in relation to a particular investigation. It will not be possible to impose investigative liberation conditions over a number of shorter periods adding up to a total of 28 days. These amendments deal with the concern that was raised by some at stage 1 that the police would be able to subject a person to repeated arrests and periods subject to investigative liberation conditions. Amendment 143 sets out certain types of condition that can and cannot be imposed when releasing a person on investigative liberation. Requiring a person to be in a particular place at a particular time—for example, a home detention curfew—would significantly disrupt most people’s lives. In the Government’s view, that would be too severe an intrusion into the liberty of someone who has not been and may never be charged with an offence, so the amendment provides that conditions that impose curfews will not be permitted. It will, however, be possible to impose conditions banning a suspect from being in a particular place at a particular time, in order to protect victims and witnesses and prevent interference with evidence. Amendment 146 will allow investigative liberation conditions to be authorised by a police officer of sergeant rank or above. At present, the bill provides that conditions must be authorised by a constable of inspector rank or above, but in most cases custody sergeants will make the initial decision on whether it is necessary or proportionate to keep a person in custody. Like all constables, custody sergeants will be under an on-going general duty to take every precaution to ensure that a person is not unreasonably or unnecessarily held in police custody. Having taken the initial decision to keep a person in custody, they will need to keep under consideration whether it remains necessary to hold that person. At present, the bill would not allow a custody sergeant to release a person subject to investigative liberation conditions, but amendment 146 will allow that specialist officer to release the person, subject to conditions. Custody sergeants are under the command of Police Scotland’s custody division, which sits separately from the territorial policing divisions. It deals with the safety and wellbeing of those in police custody. It has its own management and governance structure, which is independent of the territorial divisions and is commanded by a chief superintendent who is accountable directly to an assistant chief constable who is a member of the force executive. That ensures better oversight and management of persons in custody, and better decision making on custody matters. The independence and increased professionalisation of custody division removes the need for decisions on liberation to be taken at inspector level. The officer best placed to make decisions on a person’s liberation and, by extension, any conditions that are to be attached to that liberation will in most cases be the sergeant in charge of the custody centre. I consider that the arrangements for the management and governance of custody facilities, coupled with the procedural safeguards that are built into the bill, mean that it is appropriate for most investigative liberation conditions to be set by a custody sergeant. A custody sergeant will be independent from the investigation, so they will need to consult the senior investigating officer to determine what conditions are necessary for the interests of the investigation and for the protection of victims. The process will ensure that conditions are tailored to the investigation and that the final decision on what is proportionate and necessary will be made by an officer with the right knowledge and expertise in dealing with custody matters. The bill sets a minimum authorisation rank for investigative liberation decisions. I believe that that rank should be sergeant, but investigative liberation decisions could also be made by more senior officers. The bill provides the detailed framework and sets a minimum rank required to ensure good decision making on investigative liberation. The provisions must be flexible enough to cover relatively minor offences, complex technical investigations and very serious offences. It will be for the police to ensure that the new option of investigative liberation is used appropriately and proportionately in each case. The bill provides the legal framework, but day-to-day decision making will be supported by detailed guidance. The police guidance in the standard operating procedures for custody will be revised to take account of the bill. There will be scope for the police to develop more finely grained authorisation processes for investigative liberation conditions in different circumstances. Higher authorisation requirements could be set before a suspect could be released on investigative liberation for particular offences, for example domestic violence; for particular types of suspect, for example children; or when unusual conditions are set. Those are practical operational matters for Police Scotland and it would be unnecessarily restrictive to set out the detail on them in the bill. There will still be a requirement for any conditions set to be kept under review by an inspector. That inspector could modify any conditions set by a sergeant that the inspector did not agree were necessary and proportionate. Authorisation to release on investigative liberation will be given during the initial 12-hour detention period and I believe that custody sergeants are best placed to make such decisions. However, the requirement to keep conditions under review will ensure that all conditions are subject to detailed oversight by inspectors. The amendments in my name in this group are designed to ensure that, in all cases, correct and fully informed decisions are made, that the proper conduct of the investigation is assured and that the rights of the individual are protected. I invite the committee to support the amendments in my name.