Hansard

Although the amendments all relate to keeping a person in custody under chapter 2 of part 1 of the bill, they address four distinct issues. Most of my amendments, and amendments 13 to 17 in the name of John Pentland, deal with the proposal to allow the maximum detention period to be extended from 12 to 24 hours. I will address that issue first before moving on to amendment 12, in the name of John Finnie, which relates to the rank at which decisions on whether to keep a person in custody should be made. I will then speak to amendment 130, which will make a minor adjustment to the test for whether a person can be kept in custody. Finally, I will cover amendments 139 and 141, which relate to the time spent travelling from hospital to the police station. A key purpose of the custody provisions in chapter 2 is to strike an appropriate balance and ensure that no one is held unnecessarily or disproportionately and that the rights of suspects and victims are protected while the police have the flexibility to carry out effective investigations. The bill allows a person to be kept in custody for a maximum of 12 hours. That is a 12-hour reduction from the current detention period, which allows extensions to 24 hours. The system is designed to ensure that suspects are detained for only as long as is absolutely necessary, and the detention limit is not a target but an absolute maximum. Strong safeguards are built into the system. The initial custody decision must be made by a police officer who has not been involved in the investigation, and a mandatory custody review must be carried out by an inspector after six hours. Keeping someone in custody can be authorised only if there are reasonable grounds for suspecting that they have committed an offence and if keeping them in custody is necessary and proportionate, with account being taken of the nature and seriousness of the offence, the need to enable the offence to be investigated and the likelihood of interference with witnesses and evidence. Section 41 also places a general duty on every constable to “take every precaution to ensure that a person is not unreasonably or unnecessarily held” in custody. Conflicting views were expressed at stage 1 on the detention time limits, and the Scottish Government made a commitment to considering an extension of the detention time limit to 24 hours in exceptional circumstances. Having considered the arguments further, I believe that it is necessary to allow the extension from 12 to 24 hours. I am satisfied that the bill contains appropriate safeguards to ensure that the power will be used properly and that such extensions will not become commonplace. It is possible to extend detention periods up to a maximum of 24 hours under the current legislation, but not under the bill as introduced, so the police would have to release suspects in some serious and complex cases if the 12-hour period were to expire before they had obtained sufficient evidence to charge the suspects with an offence. That would not prevent suspects from being arrested and charged later, but releasing them could endanger public safety or interfere with the proper investigation of offences. The current power to extend detention periods to 24 hours is used in only a very small number—less than 0.5 per cent—of cases, which demonstrates that the police make appropriate and proportionate use of the power and that it is used only in exceptional cases. The power to extend is necessary in those cases, many of which involve serious and complex offences. Various factors can contribute to creating exceptional circumstances in which an extension might be required. The factors that could combine to require an extension to 24 hours tend to involve the timing of the start of interviews rather than the length of those interviews, and the purpose of an extension would be to ensure that interviews are conducted in circumstances that are fair to the suspect and the victims and which allow the police to conclude inquiries properly and gather sufficient evidence in order to charge a suspect. Suspects and victims might be too exhausted, traumatised, drunk or under the influence of drugs to be interviewed immediately after a suspect is arrested and brought to a police station. 11:45 Urgent work might be needed to interview victims, to trace witnesses and to conduct other investigations. It might not be in the interest of public safety or the safety of the victim or suspects to release a person who is suspected of a serious and violent offence on investigative liberation while such investigations take place. In some cases, it is considered best practice to examine a crime scene during daylight hours, even if an initial arrest took place at night. That may apply, for example, to the examination of bedclothes at a rape scene. Forensic medical examination may be required before interviews can take place. In areas of rural Scotland, victims and suspects may need to travel to specialist police medical suites or for examination by a police casualty surgeon. If a 12-hour detention limit was applied, the examinations and the travel times involved might reduce the time that remained for conducting interviews. Other people, such as interpreters and appropriate adults, may be required before interviews can commence. It is in the interests of justice and human rights that such people are present at interviews, but it may take time to assess what support is required for a suspect and to arrange for a specialist to attend. Delays are possible if a suspect’s needs are not immediately identified because they were drunk or on drugs. Those factors can reduce the available time for conducting interviews. In complex cases, extending the detention period beyond 12 hours may become necessary to conduct an effective investigation. I have therefore lodged amendments 122, 123, 125 to 129, 131, 134 and 135 to 137 to make provision for extending detention limits from 12 to 24 hours. Amendments 13 to 17, which John Pentland lodged, would make similar provision. I propose to deal with my amendments before moving on to consider his amendments. Amendment 135 is the primary amendment to allow the detention limit to be extended to 24 hours. The power to extend is limited to serious offences, and it will be subject to safeguards to ensure that it is used only when absolutely necessary. The safeguards include a requirement for authorisation at inspector level and provision for the suspect to make representations. The existing safeguards in the bill will also apply, including the statutory test for keeping people in custody, mandatory custody reviews at six hours and the general duty under section 41 not to detain people unreasonably or unnecessarily. The safeguards will ensure that extensions to detention periods can be authorised only in exceptional circumstances. Extensions are tempered by the safeguard of regular review, as recommended by the Carloway report. My other amendments are all intended to ensure that the new powers to authorise extension are appropriately woven into the existing provisions about providing and recording information and conducting custody reviews. That includes the reorganisation of sections and adjustments to terminology. Amendments 122 and 123 deal with recording information. Information about the authorisation process and the rationale for extending the period must be recorded. When initial authorisation is given to keep a person in custody under section 7, amendment 125 will require them to be told that their detention period may be extended. Amendments 126 and 127 amend section 9. Amendment 126 will ensure that a custody review is carried out after the first six hours of an extension. Amendment 127 makes drafting adjustments. Amendment 129 amends section 10 to ensure that the test of necessity and proportionality must be met when deciding whether to keep someone in custody beyond the initial 12-hour period. Amendments 128 and 131 move sections 9 and 10 to after section 12. Amendment 134 amends section 11 to require the police to charge or release someone once any extension to 24 hours has expired. Amendment 136 requires the police to give a person certain information when authorisation has been given to extend the detention period beyond the 12-hour point. Amendment 137 is a technical amendment to allow time that is spent travelling to or from hospital or at hospital to be deducted from the extension period. Amendments 13 to 17 were lodged by John Pentland. I wholly support the principle of allowing the detention period to be extended from 12 to 24 hours in exceptional circumstances, so I welcome the intention behind his amendments. However, I do not believe that they would offer the same protection to suspects as the amendments that I just outlined would. I therefore ask Elaine Murray not to move amendments 13 to 17. John Pentland’s amendment 15 would permit an extension up to 24 hours when both the current custody test under section 10 and the additional test of exceptional circumstances were met. Amendments 12 to 14, 16 and 17 are consequential on amendment 15. My amendments will offer suspects greater protection than amendment 15 would. In particular, my amendments will ensure that an extension can be granted only in relation to serious offences. They will ensure that suspects can make representations about a proposed extension. They will require a custody review by an inspector after six hours and will set out a much more detailed requirement for recording and providing information. I do not believe that the exceptional circumstances test is necessary. I am satisfied that the existing power to extend the detention period is used only in exceptional circumstances and that the safeguards that are set out in the bill will continue to ensure that that is the case. Setting out an exceptional circumstances test would further complicate the statutory test and create a risk of preventing extensions in cases in which they were genuinely needed. Amendment 12, in John Finnie’s name, would provide that, when a person was arrested without a warrant and was not charged with an offence, authorisation to keep them in custody could be given only by an officer of the rank of sergeant or above. In many of the more rural custody stations, the duty custody officer may be a constable. There has to be a justifiable reason for continued detention, which has to be authorised by an officer who is not connected with the case. That provides an independent overview of the initial arrest and the continued detention. Custody officers are trained in custody procedures and prisoner welfare. The authorisation to keep a person in custody also starts the 12-hour period for someone who is not officially accused. A duty custody officer of the rank of constable is perfectly able to carry out that function and afford people their rights. Amendment 12 proposes an unnecessary restriction on current practice that would lead to an increase in the requirement for sergeants across Scotland, even if authorisation were given remotely. The amendment would also lead to delays in the start of the 12-hour period as a result of waiting for an officer of a suitable rank to become available. For that reason, I cannot support the amendment and I ask John Finnie not to move it. Amendment 130 makes a small clarification to the key test in section 10 for whether a person can be kept in custody. The test applies to the initial decision to keep someone in custody following their arrest. It also applies when the inspectors conduct custody reviews after someone has been in custody for six hours. The police officer who decides to keep someone in custody must be satisfied that there are reasonable grounds for suspecting that they have committed an offence and that keeping them in custody is necessary and proportionate for the purposes of bringing them before a court or otherwise dealing with them in accordance with the law. Several factors may be taken into account in deciding what is necessary and proportionate. One of those is whether the person’s presence is reasonably required to enable the offence to be investigated. Amendment 130 will clarify that, when deciding whether to keep someone in custody, the police may consider whether the person’s presence is required to enable the offence to be investigated fully. That has always been the intended effect of section 10. The amendment makes it absolutely clear that police have the ability to undertake a full investigation of an offence while a suspect is held in custody, subject to continued custody being necessary and proportionate for the purposes of bringing the suspect before a court or otherwise dealing with them in accordance with the law. It is also important to note that section 41 will still apply, to ensure that police “must take every precaution to ensure that a person is not unreasonably or unnecessarily held” in custody. Amendment 130 will protect the balance between the public interest in ensuring a thorough and effective investigation and the rights of suspects, as recommended by Lord Carloway and reflected throughout part 1. I turn to amendments 139 and 141. The bill already provides that the time that is taken to escort a person to a hospital for medical treatment and any time that is spent in hospital are not to be deducted from the 12-hour detention period, but it does not take account of the time that the return journey takes. In more remote areas of the country, a return journey from hospital could take a considerable time, so amendment 139 provides that the time that is taken to transport an individual back from hospital will not be deducted from the 12-hour detention period. That will ensure that there is still sufficient time to interview suspects effectively once they arrive at the police station. Amendment 141 will protect suspects by ensuring that, should a suspect be interviewed while travelling from hospital to a police station, the time that is spent interviewing them will count towards the 12-hour limit. I move amendment 122.