This is the Executive Summary of the Carloway Review of criminal law published this morning. 

In October 2010, the Cabinet Secretary for Justice, Kenny MacAskill MSP asked the Lord President to nominate a single High Court judge to lead an independent review of key elements of Scottish criminal law and practice, in the light of the decision of the United Kingdom Supreme Court in Cadder v HM Advocate. The Lord President’s nominee, Lord Carloway, started work on the Review in November following parliamentary consideration of these issues during passage of the Criminal Procedure (Legal Assistance, Detention and Appeals)(Scotland) Act 2010. He was supported by a full-time Review team and assisted by a Reference Group consisting of leading practitioners and experts in relevant fields.

 
The Review’s Terms of Reference required it to consider issues relating to the right of access to legal advice, police questioning of suspects, the operation of the current system of detention, evidence (including corroboration and adverse inference) and issues arising from the 2010 Act; and to recommend both legislative and procedural change and identify where new guidance may be needed.

The Review issued a consultation paper in April 2011, which generated 50 responses. It gathered information through an extensive programme of roadshows across Scotland, desk research, discussions with a range of practitioners and other 1
experts in relation to other jurisdictions and visits to operational centres. The Review also commissioned research, with the help of the Crown Office, in the context of considering the impact of the requirement for corroboration.

Over the last century, Scots law has looked upon the issue of the admissibility of statements made by suspects in custody from the perspective of whether they were fairly obtained. Traditionally, once a person had been arrested (and, usually, charged) he/she could not be questioned. Any answers to questions, however fairly put, would be regarded as inadmissible. The Court’s decision in Chalmers in 1954 made it clear that there was no intermediate condition between arrest and liberty, whereby a suspect could be detained on “suspicion” and questioned prior to charge.

 
This approach was modified following the second report of the Thomson Committee in 1975, whose recommendations were given effect in the Criminal Justice (Scotland) Act 1980. This provided for an intermediate stage of “detention” between liberty and arrest during which a suspect could be taken to and held at a police station and there be questioned for up to six hours. This power to detain is now in Section 14 of the Criminal Procedure (Scotland) Act 1995.

 
The law changed rapidly after the incorporation of the European Convention of Human Rights through the Scotland Act 1998 and the Human Rights Act 1998. This rendered any criminal prosecution undertaken by the Crown directly subject to the requirement of Convention compatibility. It meant that actions taken by the Crown in pursuing any prosecution could be challenged by means of a “devolution minute” lodged in the trial process, making it ultimately susceptible to the jurisdiction of the United Kingdom Supreme Court.

 
This was how Cadder came before the United Kingdom Supreme Court in 2010. The European Court had determined in Salduz that the suspect’s lack of access to a lawyer while questioned in police custody was fatal to securing a fair trial. The High Court then decided in Mclean, however, that the guarantees otherwise available under the Scottish system (with 15 such guarantees cited) were sufficient to secure a fair trial for a person who, while detained, is interviewed by police officers without access to a lawyer. In its decision in Cadder, the United Kingdom Supreme Court overturned Mclean, saying that access to a lawyer must as a rule be provided as from the “first interrogation” of a suspect by the police, regardless of any other safeguards.

 
Anticipating the Cadder decision, the Lord Advocate issued “Interim Guidelines on Access to a Solicitor” in June 2010. These were superseded immediately after Cadder by the Criminal Procedure (Legal Assistance, Detention and Appeals)(Scotland) Act 2010 which: introduced measures to secure a right of access to a lawyer; extended the potential period of detention in police custody; made consequential adjustments to the statutory Legal Aid Scheme; and altered the procedures for appeal, amending the arrangements for references from the Scottish Criminal Cases Review Commission.

 
The latest development has been the United Kingdom Supreme Court’s decisions in Ambrose and other cases in September 2011. These established that the right to a lawyer arises where a suspect is deprived of his/her liberty of movement by the investigating authorities, and is to be questioned by them.

3.0 Convention Considerations
The Review has identified the fundamental principles that must apply in a modern, fair and effective system for the investigation and prosecution of crime, and has assessed the extent to which existing law, procedures and practice needs to be developed, adjusted or overhauled to meet those principles. Many of those principles must now derive from the Convention, especially Article 5 (Right to liberty) and Article 6 (Right to a fair trial), with the latter encompassing subsidiary rights including the right to silence and privilege against self-incrimination. Other Convention Articles, such as Article 3 (prohibition against torture) and Article 8 (Right to respect for private and family life) are also relevant, as is the general obligation of the state to protect the rights of citizens in general and victims in particular through the effective, efficient and thorough investigation of crime.

4.0 Proposed changes – An overview
The Review’s recommendations are designed to re-cast and modernise the system so that it meets the requirements of the Convention, and provides a comprehensive, effective and fair criminal justice system for the foreseeable future. It seeks to re-build and reinforce the system’s foundations by incorporating Convention rights in larger measure and at greater depth. It has challenged traditional legal thinking, looking to modernise, clarify and simplify the system as a whole wherever possible. The ultimate intention has been to re-establish Scotland at the forefront of law and practice of human rights in general.

The Review has not sought to analyse whether or not there has been a tilting of the system in “favour” of any particular group of persons or institutions. The recommendations combine a range of new elements within well-established principles and procedures. Additional safeguards for the suspect are proposed together with greater police powers. Some obstacles to effective and efficient investigation are removed but other measures are introduced to bolster the human rights of the suspect during that investigation. Radical changes to the law of evidence are recommended so that the focus is directed away from the present task of gauging the quantity of testimony towards a more fruitful analysis of its relevance and an assessment of its quality. Greater trust is placed on the judge and jury to make accurate translations from testimony to findings in fact. Alterations to the law on the admissibility of statements by suspects are advanced with a view to improving the quality of justice generally by sweeping aside unnecessarily complex and often misunderstood legal rules. Measures to streamline the appeal system ought to improve consistency and efficiency whilst at the same time securing access to justice at the appellate level, wherever that is deemed appropriate.

5.0 Custody

The principal focus for the Review in considering custody is to secure compliance with the obligations under Article 5 which encapsulates a person's right to liberty. The recommendations recognise that the occasions when that liberty can be removed must be both well defined yet strictly constrained. This means finding the most effective way to secure a prompt appearance before the court and ensuring custody is never imposed unnecessarily or disproportionately.

While the Review does not think that it is appropriate to confer a distinct statutory status on the “suspect”, the opportunity should be taken to simplify the law. A general right of arrest on "reasonable suspicion" is proposed to replace common law and statutory rules on arrest and detention; the distinct statutory concept of section 14 detention prior to arrest being no longer required. Although there still requires to be a point at which a suspect is notified that the state intends to bring him/her before a court charged with the commission of specified crimes, this should not automatically occur at the point of arrest.

Article 5 requires a charged person to appear in court “promptly”. The maximum period during which a person can be held in police custody is of vital importance to the protection of human rights. In the light of the evidence available, it is reasonable to place a time limit of twelve hours during which an arrested person can be kept in custody without police charge or report to the procurator fiscal. There should be a review of custody after six hours, and the suspect should be brought before the court on the next lawful day after a charge or report has been made. This maximum period ought to secure that, in effect, everyone arrested and remaining in custody must appear in court within thirty-six hours, and hopefully a lot sooner, subject to a court operating on the relevant day. If it emerges over time that it still regularly occurs that suspects are being kept in custody for more than thirty-six hours, then measures, such as Saturday courts, must be taken to address this.

 
At all of the stages from arrest to appearance in court, the significant principle should be that the suspect should not be deprived of his/her liberty unless that is necessary and proportionate - even where reasonable suspicion continues. A sensible alternative to detention in some cases would be for the police to liberate a suspect on investigative bail, subject to conditions, for a limited period whilst an investigation is completed. It is proposed that such a period of liberation should be limited to a maximum of twenty-eight days, to avoid the potential detrimental impact to a suspect who may not have committed the crime. It is also important to protect the suspect against repeated periods of detention which accumulate beyond the twelve hour maximum. Any period spent in detention before or interspersed between periods of liberation on conditions will be aggregated and must not exceed that maximum.

The Review is also concerned with the liberation of the suspect at the point of police charge or report to the procurator fiscal, and in the subsequent period prior to his/her appearance in Court. On the same principle, the police should have the power to liberate a suspect after charge or intimation of any intention to report the suspect to the procurator fiscal, on special conditions. The exercise of all these powers must be subject to independent judicial scrutiny, by means of an application to the sheriff for a review of any liberation conditions.

6.0 Investigation
The proposed regime of solicitor access operates primarily in the context of the Article 6 right to a fair trial. In all but the most exceptional cases, evidence of an admission made by a suspect before he has been afforded that right will be inadmissible in any subsequent trial. That is the direct effect of Cadder.

Following the case of Dayanan, a suspect’s right of access to a lawyer should be triggered as soon as practicable after the start of the detention, regardless of whether he/she is to be questioned. After the United Kingdom’s Supreme Court decision in Ambrose, there may be circumstances where this right is triggered if the suspect is to be questioned when his/her liberty of movement has been curtailed outwith a police station. But in any event, given the importance of establishing a suspect’s rights from the outset, and the prospect of European legislation in this area, a “letter of rights” should be provided to every suspect in a police station.

The Review is not persuaded that anyone other than an enrolled solicitor should be able to provide legal advice – access to a lawyer should mean just that. A suspect should be able to access a solicitor of choice, as long as this does not impact unreasonably on the period of detention or on the investigation, and, within reason, choose the form in which the consultation with the lawyer takes place.

The suspect must be able to waive the right to legal advice, but this must be done in a regulated and recorded manner and must be properly informed. More generally, there needs to be training and guidance for police, COPFS and solicitors to ensure consistency across the system and an understanding of each participant’s role in procedures.

There must be a new approach to police questioning, combining greater police powers with strengthened safeguards on the use of those powers. The police should be allowed to interview suspects after charge with the authorisation of a sheriff, either by warrant or at the suspect’s first appearance at court. 

Additional safeguards are needed to protect children being questioned in police custody. A child should be defined as a person under the age of 18, in line with international Conventions. Statutory provisions should place a child’s best interests at the heart of key decisions on arrest, detention and questioning, and give them the right to access a parent, carer or responsible person as well as a lawyer when in custody. The role of the parent, carer or responsible person should be defined as being to provide moral support and parental care and guidance, and to promote the child’s understanding of any communications. In the light of the importance of access to a lawyer, children under the age of 16 should not be able to waive that right. In recognition that children’s maturity and understanding varies greatly, children of 16 or 17 should be allowed to waive their right of access to a lawyer if their parent, carer or responsible person agrees.

Similar considerations apply to vulnerable adult suspects, a category which also needs statutory definition. Such suspects should have access to an appropriate adult as well as a lawyer. That appropriate adult must agree to any waiver of the right to legal advice. Further work is required to define the requirements for the role and qualifications of the appropriate adult.

The requirement for evidence to be corroborated has lain at the heart of the criminal justice system since time immemorial. It has been, and still is, regarded by many as an “invaluable safeguard” against the occurrence of miscarriages of justice. A majority of persons, especially lawyers, practising in criminal law, regard corroboration of testimony as an important aspect of their professional lives.

The Review is, however, in no doubt that the requirement of corroboration should be entirely abolished for all categories of crime. It is an archaic rule that has no place in a modern legal system where judges and juries should be free to consider all relevant evidence and answer the single question of whether they are satisfied beyond reasonable doubt that the accused person committed the offence libelled. Abolition would bring Scots law into line with modern, and almost universal, thinking on how to approach evidence in criminal, and indeed all other, cases. There is little evidence to suggest that the requirement is in fact an effective protection against miscarriages of justice. Research commissioned by the Review suggests instead that the corroboration requirement may well hinder justice by preventing credible and reliable cases from being prosecuted. Furthermore, the requirement has developed into a series of rules which, realistically, are not capable of being understood by many outside the world of criminal legal practice and are inconsistently applied by many within it.

In the absence of a requirement for corroboration, it would be a matter for the police and subsequently the Crown Office to determine whether there was sufficient quality of evidence to pursue a prosecution, in the light of whatever guidelines the Lord Advocate may issue. The Review has further considered the scope for changes to the test of sufficiency in considering submissions of no case to answer and at appeals, but concluded that no such changes are required.

In considering the admissibility at trial of wholly or partially exculpatory statements made by the accused during a police interview, the Review took the view that the current prohibition is not based on a rational and balanced approach to the relevance of statements. It is highly complex and potentially confusing to juries and others in the system. It is at odds with the principle of the free assessment of evidence unencumbered by restrictive rules; and it fails to take account of the role of the police interview as part of the trial process. The distinction between such statements in terms of their admissibility should therefore be abolished.

The Convention does not expressly provide a right to silence, but such a right has been implied by the European Court as lying “at the heart of the notion of a fair procedure under Article 6”. Implementing adverse inference provisions that would not risk infringing the Article 6 right would require a complex web of restrictive legal rules. In trying to create a system that is consistent, valuable and robust enough to stand up to future changes in human rights, and to avoid legal complexity, the Review recommends that there should continue to be no adverse inference drawn if an accused declines to give a positive account to the police in response to an allegation of criminal conduct.

The Review aims to promote an efficient system of appeal suitable for the 21st century. This means introducing a package of measures that will reduce the scope for unnecessary delays, make the system simpler and more streamlined and have in place the appropriate channels in which to challenge first instance court decisions. The Court should have the power to impose sanctions in order to enforce procedural time limits and decisions.

In examining the complex systems within the appeal process, for both summary and solemn cases, archaic forms of appeal, such as Bills of Advocation and of Suspension, should be discontinued or, in the case of petitions to the nobile officium, restricted in their availability. There should instead be a general right of appeal, with leave, from all pre trial first instance decisions. All submissions of Notice of Intention to Appeal and Note of Appeals should be bound by timelines, with exceptions in only certain circumstances.

The 2010 Act makes provision to ensure that the need for “finality and certainty” is considered prior to and in referrals from the Scottish Criminal Cases Review Commission. It is reasonable that the SCCRC should be required to consider this in deciding whether to refer cases to the High Court. But it is essential, in order to maintain the integrity and stability of, and public confidence in, the criminal justice system, that the High Court should not have the right to refuse to consider a reference from the SCCRC. Such a role would undermine the function committed by Parliament to the SCCRC. The relevant gate-keeping provision of the 2010 Act should be repealed.

To ensure greater consistency across the appeal process, the High Court, in determining referrals from the SCCRC, should apply the two fold test of whether: (a) there has been a miscarriage of justice; and (b) if so, it is in the interests of justice that the appeal be allowed.

LIST OF RECOMMENDATIONS
Arrest and Detention 

A suspect, who is not detained or being questioned, should not have a distinct legal status with statutorily defined rights. 

Section 14 detention should be abolished and the only general power to take a suspect into custody should be the power of arrest. 

Arrest should be defined as meaning the restraining of the person and, when necessary, taking him/her to a police station. 

Arrest should be distinguished from detention, which should be defined as the holding of a suspect in custody once he/she is at a police station and pending possible appearance in court. 

The ground for both arrest and subsequent detention should be defined in statute as reasonable suspicion that the person has committed a crime. 

Legislation should make it clear that, although a person must be advised of the reason for his/her arrest and detention and of any charge against him, it is not necessary for an arrest or detention to be accompanied by a charge. 

The reason for arrest and subsequent detention should be stated to be to bring the person before the court, by way of continued investigation into the merits of the case and reporting to the procurator fiscal with a view to service of a summary complaint or a petition in accordance with current practice. 

Statute should provide that a suspect should not be detained unless it is necessary and proportionate and in particular that the suspect:
(a)
is liable to escape;
(b)
will not appear at an appointed court diet;
(c)
is likely to commit further crimes; or
(d)
may destroy evidence, interfere with witnesses or otherwise obstruct the course of justice. 

It should be an express statutory requirement that, in determining whether a suspect’s detention or continued detention is necessary and proportionate, the nature (including level of seriousness) of the crime and the probable disposal if convicted must be taken into account. Only in exceptional circumstances should a person be detained where the charge does not involve an imprisonable offence. 

It should be made clear that the police have power to question a suspect and to carry out any other lawful investigative procedures notwithstanding the suspect’s arrest and detention, in the same way as they have at present with a person in section 14 detention. 

No court warrant ought to be required to arrest and detain for imprisonable offences on reasonable suspicion.

For non imprisonable offences, such a warrant should be a requirement unless the police officer is of the view that, were such a warrant to be obtained, the suspect:
(a)
would be likely to abscond; or
(b)
may destroy evidence, interfere with witnesses or otherwise with the course of justice pending any court appearance.
Period of Custody 

Section 17 of the Police (Scotland) Act 1967 should be amended so that the duty of the police is to ensure that persons arrested are not unnecessarily or disproportionately detained in custody. 

There should be a requirement that a person cannot be kept in police custody for more than twelve hours without being:
(a)
charged; or
(b)
advised that he/she is to be reported to the procurator fiscal with a view to him/her being charged with a specific offence. 

There should further be a requirement on the police to review any period of detention before charge at or about six hours after detention. Such a review should be carried out by an officer of at least the rank of inspector who has not been directly involved in the investigation. 

The time for appearance at court should be altered to the first court day after charge or notification of an intention report to the procurator fiscal; both the common law and section 135(3) of the 1995 Act should be amended accordingly. 

It should be made explicit that there is no rule requiring the police to charge a suspect upon arrest, or once a sufficiency of evidence has been reached, and that, subject to compliance with the proposed regime in relation to arrest, detention and court appearance, the point at which the police proffer a charge or decide to report the suspect to the procurator fiscal is a matter for their discretion. 

The period of time during which suspects are kept in custody should be kept under review by the COPFS. If it transpires under the new regime that suspects are being kept in custody without court appearance for more than thirty-six hours from the time of their arrest, measures (e.g. Saturday courts) should be introduced to prevent that from occurring. Meantime consideration must be given to the reorganisation of the times of existing workloads in the procurator fiscal service and the courts.

Liberation from Police Custody 

The police should be given express power to liberate a suspect from detention, pre charge/report, subject to any appropriate conditions for the purpose of carrying out further investigations. The police should not have to specify the nature of any enquiries, if that would compromise the investigation, but otherwise they should do so. 

The period of liberation on such conditions should be limited to a maximum of twenty-eight days. Where this is done, the period already spent in pre charge/report detention and any future period will be aggregated and must not exceed the twelve hour maximum. 

Investigative liberation should only be granted on the basis that there remains reasonable cause to suspect the person of committing the particular offence. 

When it is granted, the police must provide a time and place for a return to the police station, when, of course, the rights of access to a lawyer would revive. 

The conditions for liberation may include special conditions, necessary for the proper conduct of the investigation, such as prohibiting the suspect from visiting a particular area, speaking to certain people and making himself/herself available for other legitimate purposes. 

The police should be given the power to liberate a suspect after charge or intimation of any intention to report the suspect to the procurator fiscal, on special conditions, including a curfew. 

Where the police do not intend to recommend opposition to bail, the suspect should be released by them, either unconditionally or on an undertaking to appear at court on a specified future date. Where the police are uncertain whether or not to recommend bail they should seek the direction of the procurator fiscal. 

The procurator fiscal should have an express power to review police decisions on liberation and to liberate also on standard or special conditions. 

The exercise of the powers to liberate at any stage prior to appearance in court should be subject to a summary process, whereby the suspect may make an application to the sheriff for a review of any liberation conditions.

The sheriff should be able to vary a condition or to terminate the liberation on conditions altogether. 

Breach of conditions of liberation should be a criminal offence and breach of any condition of an undertaking should remain a criminal offence.
Legal Advice 

There is no need to require the police to secure access by a suspect to a lawyer outwith a police station and no legislation is required in that regard. 

Part of the standard caution prior to the interviewing of suspects outwith a police station should include the information that he/she has a right of access to a solicitor if he/she wishes. 

The provisions of the 1995 Act (s 15A(3)) introduced by the 2010 Act, which entitle a suspect to have access to a solicitor (a) before any questioning at a police station and (b) during questioning, require to be amended to provide that such access is available, regardless of questioning, as soon as practicable after (under the recommended regime) the detention of the arrested suspect at the police station. 

A “letter of rights” should be drafted without delay. Every arrested and detained suspect should be provided with a copy of that letter unless there are particular reasons not to do so. 

It should continue to be the case that access to a lawyer means only to an enrolled solicitor. 

The legislation should be amended to make it clear that, although it is the police officer’s obligation to ensure that “intimation” of arrest, detention and request for assistance is made, it need not be made specifically by a police officer or to a solicitor in person. It should allow for forms of contact other than by telephone; 

The right of access to a lawyer does not extend to the provision of assistance from a solicitor of the suspect’s choice and no alteration to the legislation is required in this regard. Where the suspect requests access to a named solicitor, however, in accordance with current practice, efforts should be made to secure the attendance of that lawyer within a reasonable time. No legislation is required in this area. 

In exceptional circumstances, the police must be able to delay all, or any part of, the person’s right of access to a lawyer or to withhold all, or any part of, that right. But there should not be any statutory definition of what is meant by “exceptional circumstances”.

There is no need to set out in legislation what the role of the solicitor may be. The University Law Schools and the Law Society should be encouraged to formulate guidance for solicitors in advising clients in a police station. Understanding the role of the solicitor in that regard should be part of COPFS and police training. 

Subject to what is determined to be reasonable remuneration in legal aid cases, it is for the suspect to decide whether the advice from a lawyer should be provided in person, or by other means such as by telephone or internet video link and whether he/she requires a solicitor to be present during any interview. 

Legislation should expressly provide that adults who are not vulnerable may waive the right of access to a lawyer. It should state that waiver must be express and recorded. The right cannot be waived unless and until the person has been fully informed of the right.

Questioning 

There is no need for statutory provision on the purpose of questioning. 

The prohibition on police questioning after charge should be abolished and there should be a process whereby the police, where they feel there is good reason to question a suspect after he/she has been charged or reported to the procurator fiscal, can apply to a sheriff for permission to do so prior to a first appearance at court. In particular such an application:
(a)
must state the grounds for allowing questioning post charge; and
(b)
can be made, and responded to, remotely by electronic means. 

The Crown should also be entitled to make such an application to the court in the course of a prosecution, at the first appearance before the custody court; or at any time prior to the trial diet. 

In all such cases, the Court should have the discretion to place whatever conditions, constraints or limits on such further questioning it sees fit. 

Legislation should provide that courts have a general power to exclude evidence, including statements made by suspects to the police during the course of an interview or otherwise if the admission of that evidence would result in the trial being rendered unfair in terms of Article 6, including unfair by reason of an infringement of a suspect’s right to silence or his/her privilege against self incrimination. Consideration should be given to the abolition of all other rules for the exclusion of relevant evidence in criminal cases.

The common law rules of fairness concerning the admissibility of statements by suspects should be abolished in favour of the more general Article 6 test. 

There is no need for statutory provision on pre-interview briefing of suspects. 

The procedures of Judicial Examination and the emission of declarations should cease by, inter alia, repeal of the relevant provisions of the 1995 Act.
Child Suspects 

For the purposes of arrest, detention and questioning, a child should be defined as anyone under the age of 18 years. This means that the current provisions concerning notification to a parent, carer or other responsible person and these persons having access to a child suspect should be extended to all persons under 18 years of age. 

There should be a general statutory provision that, in taking any decision regarding the arrest, detention, interview and charging of a child, whether by the police or the procurator fiscal, the best interests of the child shall be a primary consideration. 

All children should have the right of access to a parent, carer or responsible person if detained and, in any event, in advance of and during any interview, provided that access can be achieved within a reasonable time. The police should be able to delay or suspend that right in exceptional circumstances. 

The general role of the parent, carer or responsible person should be defined in statute as consisting of the provision of any moral support and parental care and guidance to the child and to promote the child’s understanding of any communications between him/her, the police and his/her solicitor. 

Where the child suspect is under 16, he/she must be provided with access to a lawyer, and neither he/she, nor a parent, carer or responsible person can waive that right. 

Where the child is under 16, he/she must be provided with access to a parent, carer or responsible person, and he/she cannot waive that right. 

Where the child is 16 or 17 years old he/she may waive his/her right of access to a lawyer but only with the agreement of a parent, carer or responsible person.

Where the child is 16 or 17 years old he/she may waive his/her right of access to a parent, carer or responsible person. In such cases he/she must be provided with access to a lawyer.
Vulnerable Adult Suspects 

There should be a statutory definition of a “vulnerable suspect”. This should be, in broad terms, a person who, in the view of the police officer authorising the suspect’s detention, is not able to understand fully the significance of what is said to him/her, of questions posed or of his/her replies because of an apparent (a) mental illness; (b) personality disorder; or (c) learning disability.

 Statute should define the role of an appropriate adult as being to assist in ensuring that effective communication takes place between the suspect, the police and the suspect’s solicitor (if any) and that the suspect is not disadvantaged, relative to the non-vulnerable suspect, in the detention and interview processes by reason of his/her vulnerability. 

Statute should provide that a vulnerable suspect must be provided with the services of an appropriate adult as soon as practicable after detention and prior to any questioning. He/she should only be able to waive his/her right of access to a lawyer if the appropriate adult also agrees to this. 

Statute should define, at least in broad terms, the qualifications, professional or otherwise, necessary for a person to be an appropriate adult. The Review has not had sufficient material upon which to form a view on this subject, and the Government should carry out further research in that regard.

Corroboration 

The current requirement for corroboration in criminal cases be abolished. 

In solemn prosecutions where there is no corroboration of testimony, there should be no requirement on the judge to warn the jury of any dangers perceived purely as a consequence of the absence of such corroboration.
Sufficiency of Evidence 

The test for sufficiency of evidence at trial and on appeal should remain as it is now, other than that, as already recommended, the requirement for corroboration should no longer apply.

Exculpatory and Mixed Statements 

The distinction between incriminatory, exculpatory and mixed statements should be clarified so that, so far as statements made to the police or other officials in the course of an investigation are concerned, no distinction is drawn between them in terms of admissibility. All statements made by accused persons to such persons in that context should be admissible in evidence for all generally competent purposes, including proof of fact, in the case against that accused except where the content of a statement would otherwise be objectionable. 

Further consideration should, in due course, be given to whether this rule should be applied to all pre trial statements by accused persons.

Adverse Inference 

No change is made to the current law of evidence that prevents inferences being drawn at trial from an accused’s failure to answer questions during the police investigation.

Appeal Procedures 

The High Court should be provided with a statutory provision to impose sanctions, including that to dismiss an appeal or to order that particular steps should not be paid for out of public funds, to enforce time limits and its own procedural decisions 

The 1995 Act should be amended to provide that:
(i)
where an applicant fails to lodge a Note of Appeal timeously, having lodged a Notice of Intention to Appeal, his/her appeal will be deemed to be abandoned;
(ii)
where an applicant seeks to lodge a Notice of Intention to Appeal late or seeks to have his/her abandoned appeal revived by lodging a Note of Appeal, having earlier failed to do so, the court may allow this but only if:
(a)
special cause is shown why a late Notice or Note should be allowed; and
(b)
the grounds of appeal are such as disclose that, were the appeal to be received late, the appeal would probably succeed on the grounds stated;
(iii)
discussions on whether to grant leave to appeal late shall all take place in chambers without the requirement of an oral hearing unless the Court otherwise directs; and
(iv)
the decision of the High Court refusing to allow a Notice of Intention to Appeal or a Note of Appeal to be received late is final.


Where an application for leave to appeal late is granted, the Court must give a reason for that decision in a form capable of being communicated to any victim of the crime or next of kin of any deceased. 

The processes of Bill of Suspension and Bill of Advocation should be abolished. The provisions of sections 74 and 174 of the 1995 Act should be expanded to permit appeals from any pre trial decision of a court of first instance but only with leave of that court. Where the decision has the effect of terminating a prosecution by acquitting the accused of a charge, or part of a charge, or otherwise the Crown should have the right of appeal without leave. 

Section 176 of the 1995 Act should be amended to permit an applicant for a stated case based solely on the incompetency of a conviction to request the court to authorise that the appeal proceed by Note of Appeal rather than Stated Case. The court should be permitted to grant such authorisation. Other than in relation to the quorum of the Court, the appeal should proceed in the same way as a Note of Appeal against sentence. 

The same test for leave to appeal late as is suggested for solemn cases should be applied to summary cases. It ought also to be made clear that, in accordance with current practice, there is no appeal from the decision of a single High Court judge refusing leave to appeal late in a summary case. 

The High Court’s nobile officium should continue but there should be a statutory provision that applies the same finality to summary case appeal decisions that section 124 of the 1995 Act provides in relation to solemn cases. 

Further consideration by the court and the legal profession should be given to whether the practice of trial counsel not appearing in the appeal proceedings constitutes a problem and, if so, what steps should be taken to solve that problem.

Finality and Certainty 

Section 194 C(2) of the 1995 Act (as inserted by Section 7(3) of the 2010 Act) which introduces a requirement on the SCCRC to consider “finality and certainty” in considering a reference, should be retained. There should, however, be no further statutory listing of the criteria included in the “interests of justice” test for SCCRC references. 

Section 194 DA of the 1995 Act (as inserted by Section 7(4) of the 2010 Act) which provides a “gate-keeping role” for the Appeal Court in relation to references from the SCCRC should be repealed.

When considering appeals following upon references from the SCCRC, the test for allowing an appeal should be that:
(a)
there has been a miscarriage of justice; and
(b)
it is in the interests of justice that the appeal be allowed.