Justice Committee

Meeting date: Tuesday, March 15, 2011

Official Report 597KB pdf

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Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010

The next item of business is the second evidence session on the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010, which resulted from the emergency bill that was passed by Parliament in the immediate aftermath of the Supreme Court decision in the case of Cadder v Her Majesty’s Advocate.

At last week’s meeting, the committee heard from a panel of legal and human rights representatives on the 2010 act. The committee agreed to invite a representative of the Association of Chief Police Officers in Scotland to give oral evidence at today’s meeting, before we hear evidence from the Cabinet Secretary for Justice.

I welcome Chief Superintendent Paul Main from ACPOS’s solicitor access implementation team. I invite questions from members.

Good morning, Mr Main. In your view, how well did the Lord Advocate’s interim guidelines on access to legal advice work in practice?

They worked as an interim measure, which—if you forgive the phrase—is exactly what it said on the tin. I am aware that there were a number of appeals during the period in which the interim guidelines were in effect, which was from June last year to January this year. To be frank, I find it difficult to square the idea that they worked very well because we have appeals in relation to how the police applied them, and on some of our custody arrangements and paperwork procedures, such as the solicitor access recording forms, which enter the evidence chain.

In summary, considering that we changed the system overnight, from 30 years in which solicitors were not provided with access to suspects to their having access to suspects, the guidelines worked well when that right was taken up. However, in my view there clearly needed to be something more substantial. In particular, we still had only six hours to detain a suspect. While that was fair and was how we worked for 30 years, a time delay is built in when consultation with a solicitor, either by telephone or face to face, is provided. The very nature of that time delay compromised police investigations because we still had only those six hours. The interim guidelines did not change the time that police had for investigating the suspect.

Are you saying that there were no significant problems with the police adhering to the guidelines, or that there were specific and, as time went on, possibly insurmountable problems?

Initially, there was a massive cultural change, but the police have to deal with that day in, day out at the moment, so we can put that to one side. To be frank, some of the problems were practical. For example, how do we secure a private consultation by telephone without compromising evidence? Some of the difficulties were real, practical issues down in the weeds, if you will forgive the phrase.

In the broader sense, there was a fear of a risk to justice and to our ability to investigate and detect crime because of the six-hour limit. Within that six hours, we were prevented from doing certain obvious things, such as interviewing, while we waited for a solicitor. We were in an ironic situation that we are still in, to a degree, although it does not play out anywhere near as much as it did because the detention period has been extended: if a suspect wanted to circumvent justice, they could arrive at a police office, refuse their right to a solicitor and then ask for one three hours into the six-hour limit. It could then take us three hours to find a solicitor, which would mean that the detention period was exhausted.

Last week, the committee heard evidence that the interim guidelines were robust enough to meet any challenges similar to those raised in the Cadder case and that Parliament was wrong not to take additional time to consult more fully on the legislation while still using the interim guidelines. Do you have an opinion on that?

Yes—that was referred to in last week’s committee. I find it difficult to agree with that position because I am aware of appeals that have come up since June, when the interim guidelines came out, about the police’s application of the guidelines. Some of those appeals might be part of some of the cases that are referred to as sons of Cadder. Others that are being played out in sheriff courts across the country relate to custody arrangements and our use of forms—for example, whether a suspect who waives their rights but does not sign for that is making an informed waiver.

I will not comment on whether the appeals are appropriate. Appeals are appeals, but it is difficult to square the number of appeals—I am unable to quote the actual number—with the view that the interim guidelines were sufficient. I just do not think that the one equals the other, if that answers your question.

ACPOS issued its own guidance in January 2011. What was the logic in ACPOS deciding to issue guidance after the Lord Advocate issued interim guidelines and emergency legislation was passed? How does ACPOS’s guidance differ from the guidelines that the Lord Advocate issued in June?

There are a couple of points to make. The interim guidelines were always going to be interim. As soon as we got to 30 October and had an act that replaced them—albeit that they remained in place—there had to be a move towards something more substantive. ACPOS introduced the current guidance in January at the same time as the Lord Advocate withdrew her interim guidelines.

On the differences, the interim guidelines did not refer to extended periods of detention, by which I mean periods of more than six hours; nor did they refer to the potential to extend detention beyond 12 hours. That is one significant difference.

While the interim guidelines were in force, several issues were raised in Parliament and by other observers, such as the waiving of rights, making sure that any waiver was informed and making sure that there were sufficient safeguards around children and vulnerable suspects. Those issues are all covered by the new ACPOS guidance but they were not covered in the interim guidelines to the same level of detail.

In addition, the ACPOS guidance has far more information about liaison between investigators and solicitors, which was not in the interim guidelines. That is about what stated cases exist to permit or not permit sharing of information with solicitors. None of those issues was referred to in the interim guidelines.

Will you extend that and tell us how police officers ensure that suspects are aware of their rights under the guidance?

I am grateful to the member for raising that. To deal with concerns about a system being in place across the country for an informed waiver of rights, in the new guidance in January we introduced a form of words relating to that. Members will be familiar with the police caution—[Interruption.] I see you shaking your head, Mr Don, but I am sure that you will be aware of it from watching TV programmes such as “Taggart” or from reading Rebus books. In Scotland, the police caution is delivered in a standard and consistent way, whether in Edinburgh, Glasgow, Inverness, the islands or wherever. In the new guidance, we designed a series of questions and statements so that we have a form of words to use when a suspect is told about their rights of access to a solicitor. As with the police caution, wherever someone is in Scotland, that should be delivered consistently.

We took advice on that from the Law Society of Scotland and the Crown Office. To be honest, they significantly redrafted the suggestion that my team and I made to make it clearer and more easily understandable and certainly more suitable for the broad diversity of suspects that we come across.

I am sure that other members will want to ask about that diversity. Obviously, you normally use the Scots version of the English language, but what happens if you are talking to someone whose first language is clearly not English?

That issue applies not just to people who are detained and to the 2010 act, but to anyone whom we come across. In the custody arena, there could be an issue with an arrested person, never mind someone who is about to be detained. In the past 10 years, or perhaps longer, our custody arrangements have changed remarkably and vulnerability assessments are now built into them. Vulnerability includes language issues, mental illness or health issues. We are now far better than we have ever been not just at identifying possible vulnerabilities, but at responding to them through an appropriate adult service such as an interpreter or social work service or through a medical service, which can be provided by force medical examiners, police casualty surgeons or the national health service.

To follow on from that, you touched on how you deal with suspects, but how do you provide information for suspects who are vulnerable adults or children? That issue arose at last week’s meeting. Will you outline the procedures for dealing with such people and say how they differ from those for other suspects?

Children cannot waive their rights on their own—a parent or suitable adult must assist with a decision on whether to waive those rights. Similarly, our guidance indicates that, if there is any sense that an individual is vulnerable and is not fit to make an informed waiver because of mental health or medical needs, the involvement of an appropriate adult should be considered. The bottom line and core principle in all our guidance is that, whether or not a right is waived, the issue could be tested significantly in court and therefore, if we have any doubt, we should err on the side of caution.

The guidance says that there is a presumption that children, for example, will have access to a solicitor, although we must be careful not to make a right into something that is mandatory. Access to a solicitor is mandatory in some European countries, but we try to strike a balance by ensuring that there is an informed waiver that can be assessed in court if the case becomes a court issue, although children’s issues rarely do unless a serious crime is involved. We should ensure that any independent analysis, whether by the court or the Procurator Fiscal Service, would agree that the waiver was informed.

Do those rules and the same process apply to adults who are under the influence of drink or drugs? Does your definition of vulnerable adults exclude adults who are under the influence?

10:15

That is a fair aspect of vulnerability to focus on. I have probably not covered it—in speaking about vulnerability so far, I have concentrated more on medical and mental health issues.

When it comes to incapacity through alcohol or drugs, for instance, there can be two ways in which things play out. If someone is drunk, we need confidence that they are able to make an informed waiver, but they are often not able to do so. Sometimes, dealing with a person’s rights will be delayed for that reason only—to ensure that the exercise of their rights is informed.

There is another way of doing it, whereby someone can simply be offered their rights. Someone who is drunk might say that they want a solicitor, in which case we can get the ball rolling. However, if they say no, the likelihood is that when they sober up and have more of their faculties about them, they will be reoffered that right. In fact, that is almost a certainty. In certain circumstances, it would be appropriate to offer people that at the first point of contact and, as I have said, if they say yes when they are drunk we can start the ball rolling.

There is then a medical assessment, with a doctor coming in. I have a number of examples of a doctor saying that a person is fit to be detained but is not fit to be interviewed for eight hours. That allows us to engage with solicitors and make arrangements for eight hours later, instead of waiting eight hours to make an offer of rights properly.

Whether somebody is, or is not, in somebody else’s view, incapable of taking such a decision because they are under the influence of alcohol or drugs is a difficult, grey issue. In cases in which a doctor says that the person is incapable of taking the decision because of that incapacity and will not be capable of taking it for a number of hours, I presume that you continue to detain them over that period. What happens about the length of the detention period in such cases? When does the clock start to tick? Does the time start from the original detention, or from the point at which people are deemed capable?

It starts to tick from the original detention. That is one reason why we had a difficulty with the six-hour period, over and above the issues around access to solicitors.

Does the new, extended initial period that is now in place effectively cover all those cases, such that people are eventually able to make an informed decision, due to the alcohol leaving their system?

There have been 58 cases, to my knowledge, in which the period of detention has been extended beyond 12 hours. From memory, I think that 10 of those cases have come down to the fitness of the suspect to be interviewed. Out of the 10 cases that I have reviewed, the longest period of time that a doctor has given before someone was deemed fit to be interviewed was 10 hours. I think that the shortest period among the cases that I have read was about six hours.

We do not have medical practitioners in police offices as a matter of routine. Depending on how long it takes us to get the medical assessment, and depending on the medical view, it could be eight to 12 hours before someone is fit to be interviewed—and we still have to arrange a solicitor, potentially.

But that six to 12 hours obviously gives you a window of opportunity that was not there before.

Absolutely.

And the extension beyond 12 hours might kick in under those circumstances.

Yes—it has done on about 10 occasions.

Are you saying that there were concerns about the six-hour limit prior to the Cadder case? Did Cadder simply give you an opportunity to address those previous concerns?

It is a bit of both. ACPOS had raised concerns over a number of years about custody arrangements. Sometimes it can take us an hour or longer to process someone in custody so as to provide safeguards and carry out vulnerability assessments, particularly for any complex issues relating to someone’s medical needs, or just when someone is under the influence of drugs or alcohol. The time is extended further, given how long it takes to carry out a more informed medical assessment.

The answer to your question is that we had raised similar issues before, as well as issues around the complexity of inquiries. In sexual cases, our support to victims, including the involvement of sexual offence liaison officers, takes a number of hours to arrange, and we often need to put that support in place before we can interview suspects.

With the Cadder judgment, the opportunity came up to raise those issues, as well as the solicitor access issue.

From a practical perspective, how confident are you that police stations across Scotland are able to deal as they should with people who are detained for longer periods? Are the police stations sufficiently well equipped to accommodate those people? When we took evidence last week, we were told that Justice is concerned that welfare checks are not happening as frequently in Scotland as south of the border and that it is concerned about the welfare of the prisoner during their period of detention, especially given the fact that the periods of detention are now longer.

I was going to respond on the broader issue of custody and our estate but, given the second part of your question, I do not think that that answer would have been appropriate.

I attended the committee meeting last week and heard that comment, but I disagree with it. If a person’s detention were a maximum period of 12 hours and we were considering extending it to 24 hours, that would be one thing, but the reality is that we detain suspects on a Friday and do not take them to court until the following Monday. That is a regular feature of Scots law that, to some degree, we all have our fingerprints on, either directly or indirectly. To be frank, it is worth having a debate about the suitability of police stations as places to hold someone in custody for three days, whether they are arrested or detained.

In direct answer to your first question, I am confident that, for the periods for which people are detained, we are dealing with people’s vulnerability better than we ever have and that the period that we now have in which to deal with a detained person’s vulnerability is better. I do not make that point lightly. As we seek to put in place more safeguards for a child or a vulnerable suspect, the inevitable consequence is that that person will be detained for longer. I say that not in a harsh way, but in a practical way. We do not have social workers in police offices as a matter of routine, nor do we have doctors, nurses, medical staff or appropriate adults; we need to tap into all those services, and there are different financial arrangements and service levels for that throughout the country. We think that it is entirely right that those safeguards are put in place. The practical reality is that, although there is an understandable desire to keep children, for example, in custody for the shortest possible time, the normal consequence of putting any safeguard in place is that we need to keep them in custody for longer. That is the contradiction within the practical solutions that we have come to.

The 2010 act also provides that a constable may delay a detained person’s access to legal advice in “exceptional circumstances”, but it does not define “exceptional circumstances”. Can you explain what you understand “exceptional circumstances” to mean?

You are right to say that that is not defined. I can speak only from my experience. Two instances of undue delay are dealt with in the 2010 act. The first relates to a solicitor being advised of a suspect being in custody. That is dealt with in the Criminal Justice (Scotland) Act 1980, as it relates to detention, and in the Criminal Procedure (Scotland) Act 1995; it relates to any arrested person, as well. We have been familiar with that instance of undue delay for about 30 years or more.

The second instance of undue delay involves access to the professional services of a solicitor. In my 22 years’ experience, I have been aware of only a very small number of cases in which we have created any form of undue delay in that regard. We have looked at the issue as it relates to the 2010 act since the start of February. I am not aware of any cases of undue delay, so I will try to answer your question hypothetically. What would undue delay look like? The only scenario that I and my colleagues have come up with is one that involves an investigation into serious and organised crime. If a solicitor were involved in that investigation and the people who were being detained asked for that solicitor, whom the police also had in their sights, if I can use that language, it could be argued that it would not be in the interests of justice for the police to make contact with that solicitor. However, if that happened, we would make contact with another solicitor from a duty list.

To be honest, I do not see undue delay playing out in the sense that people have raised it. It has certainly not played out in any of the detentions that I have looked at since the start of February, and I am not aware of its having played out in my experience of more than 20 years. I think that undue delay in solicitor access will happen extremely rarely. That makes it more difficult to answer your question and to define what undue delay is because we do not see it very often at all. The hypothetical scenario that I gave you is probably the most obvious and likely example that we would come across, albeit that it would occur highly infrequently.

You have just made matters even more confusing. Is “undue delay” the police term for “exceptional circumstances”?

I suppose that “exceptional circumstances” would mean a scenario such as the hypothetical one that I have described, in which the solicitor that someone asked for might be involved in our investigation. In the new guidance that ACPOS issued in January of this year, we said that if there is undue delay in any case, the suspect must be informed of that fact and we must communicate it to the Crown. Then—this is not our role—the Crown would, we anticipate, disclose that to the accused’s defence agent. We have not seen undue delay happening and we do not anticipate it happening often. When it does happen, we must write that down and report it to the Crown.

At what level is the decision taken about whether to delay access to advice? Who makes that decision?

Bearing in mind that, to the best of my knowledge, it has not happened, it would probably not be a rank-based decision—it would probably be made by the senior investigating officer for the inquiry. That senior investigating officer could be a constable, but I rather suspect that, in the hypothetical scenario that I have given you, such a complex inquiry would probably be led by a detective sergeant, a detective inspector or perhaps even a more senior officer.

Thank you.

As the committee has no more questions, I thank Chief Superintendent Main very much for his time. Is there anything that you would like to add that has not been covered in our questions?

I know that you have a busy schedule, but I would like to give you confidence that, in my opinion—I bring a bias to the issue—the police implementation of the 2010 act has been positive. About 80 per cent of detentions are still for less than six hours. As I highlighted earlier, in 58 cases the detention period has been extended beyond 12 hours, but that equates to less than 0.25 per cent of all detentions that have happened in Scotland.

I know that there have been negative comments about a blanket detention period, which may be seen as a bad thing, but I think that the six-hour period was just as much of a blanket period. ACPOS has sought a detention period that gives the police flexibility and which can be applied proportionately on a case-by-case basis. I hope that statistics such as the fact that 80 per cent of detentions are still for less than six hours and the fact that a very small number—less than 0.25 per cent—of them are for longer than 12 hours show that we are using the flexibility that the additional power has given us proportionately and that that will deliver increased public confidence.

I appreciate you giving us your time. Your evidence has been very helpful. Thank you again.

I suspend the meeting briefly to allow for a change of witnesses.

10:28 Meeting suspended.

10:30 On resuming—

I welcome Mr Kenny MacAskill, the Cabinet Secretary for Justice. He is accompanied by Gerry Bonnar, who is the head of the law reform and general branch in the Scottish Government; Don McGillivray, who is from the criminal justice and parole division in the Scottish Government; Alicia McKay, who is from the Scottish Government directorate for legal services; and Michelle Macleod, who is head of the policy division in the Crown Office and Procurator Fiscal Service. Good morning to you all and thank you for coming. I invite the cabinet secretary to make a short opening statement.

Thank you, convener. As committee members will be aware, I made a statement on Cadder in the chamber on 23 February. I set out at that time, as I did during the debate on the bill, much of the justification for the course of action that the Government has taken. Many committee members contributed to those proceedings.

I do not propose to repeat that material. Instead, I will offer a brief reminder of our responsibility to maintain an effective system for the investigation and prosecution of crime and some perspective on where the 2010 act leaves our criminal justice system.

I am aware of the evidence that the committee heard last week from various members of the legal community to the effect that we could have continued to rely on interim guidelines issued by the Lord Advocate. I fundamentally disagree with that assessment. The judgment provided the accused with a legal right and the guidelines had no legal status. Those who gave evidence last week agreed that something had to be done and could not rule out the possibility of challenge. Indeed, I am now aware that such challenges have been taken in relation to offers of legal advice under the Lord Advocate’s guidelines.

As Cabinet Secretary for Justice, I felt that it was necessary and proportionate to create a statutory framework to minimise the risk of further challenge. More than that, as Cabinet Secretary for Justice, I bear a responsibility, alongside the police and the Crown Office, for maintaining an effective system for the investigation and prosecution of crime. Although the Lord Advocate’s guidelines had been effective in protecting individual cases, the information that I received from the police was that the practicalities of offering solicitors access within the existing legislative framework was reducing the effectiveness of investigation, particularly in more serious and complex cases.

The analogy that I use is that the Lord Advocate’s guidelines kept the system on its feet while it limped along between June and October. As Cabinet Secretary for Justice, I was not prepared for the system to limp along any longer, as every day that it did so there was a risk of less effective outcomes for victims.

That leads me on to another important element in the need for immediate action: public confidence. We had a situation in which a decision of the highest court in Scotland had been overturned in an area that is at the heart of the justice system and which affects tens of thousands of detentions every year, and we knew that several thousand live cases could be affected. Having a system limping along in that context risked a major loss of public confidence, so I felt that it was important immediately to put the system on a surer footing.

I will move on to provide a perspective on where the 2010 act leaves the justice system in Scotland. In our system there is a clear and identifiable statutory right to advice from a solicitor before being questioned by the police; indicative figures from the police tell us that more than 80 per cent of detentions are completed within six hours; the maximum period of detention is a quarter of the maximum in the neighbouring jurisdiction; admission evidence must be corroborated; and there is a right to silence and no adverse inference can be drawn from the exercise of that right. In summary, we continue to have exceptionally strong protections for suspects in the justice system in Scotland and the 2010 act should be seen as offering a limited rebalancing of the system in that context.

Finally, I remind the committee that the act is not the final word on the matter. We have set up the Carloway review to scrutinise all these issues in more depth, so that the next Administration and the Parliament will have the evidence needed to ensure that we continue to have a robust system that is capable of protecting the rights of victims and ensuring a fair process for accused persons that is fit for a modern Scotland.

Thank you, cabinet secretary. We move to questions from committee members.

Cabinet secretary, you outlined why you and the Government felt that it was necessary to invoke the emergency bill procedure in this instance. You said that the system was limping along and that you wanted to put it on a surer footing. You also spoke about the danger to public confidence. In what ways was the system limping along? Was it simply that the mechanics of the police following the guidelines might break down eventually? Was that why you had to put things on a statutory footing?

That is a valid point, but there were several reasons. First, we could not continue with a criminal justice system that fell short of compliance with the convention in such an important area. The Supreme Court had made that clear. Secondly, we needed to maintain an effective system of investigation and prosecution of crime in the new environment. Thirdly, we needed certainty on appeals. I believe that the legislation provided an immediate response to the judgment. It provided for and enshrined in statute the necessary rights of suspects while also providing measures to help our police and prosecutors effectively to investigate and prosecute crime. There were several reasons: public confidence, the requirement for certainty and the necessity to enshrine things in statute.

Having heard that, I understand the approach that the Government took. However, some people have made the point that it may have been better for the Government to have dealt only with the highest priority provisions in an emergency bill and to have dealt with the remaining provisions in separate legislation that could have proceeded on a non-emergency basis. Was consideration given to that way of dealing with matters?

Yes. That was the approach that we took by way of legislation and Carloway. We believe that the provisions in the bill were those that were necessary to deal with the immediate issues. We recognised that we could not deal with everything in the bill, which is why we put in motion the independent review to consider what had been done and look at wider change. We believe that the bill struck an appropriate balance: the rights of the accused were secured with legal aid measures to support that right and the police were given the powers they needed and were strongly supported. Time limits were also introduced for common-law appeals with a grace period to ensure that thousands of cases were not re-opened and measures were taken to avert a wave of applications to the Scottish Criminal Cases Review Commission. The Supreme Court had, of course, highlighted that point. The response was sensible and reasonable; it provided a balance between what was immediately necessary and what could be left for Lord Carloway on a longer-term basis.

So you are content with the Government’s approach.

Yes.

Okay.

I am struggling a little to follow the nature of the practicalities, cabinet secretary. What practical difficulties could have arisen had you not introduced the bill? I assume that the essence of the matter was whether, in practice, a suspect person under detention had the right of access to a solicitor during that period. Provided that the Lord Advocate’s guidelines were being followed, what difficulties were being caused? What might have been subject to challenge? I seek clarity.

The problem with the Lord Advocate’s guidelines is that they do not enshrine matters in statute. Equally, the police are not required to follow those guidelines; they have discretion on the matter. The Lord Advocate’s guidelines were essential to being able to limp along between June and October, but they were not capable of providing certainty thereafter. Once the Supreme Court’s decision was out, it was necessary for us to act. As I said, given that guidelines from the Lord Advocate are discretionary for the police, matters were limited. That was why action had to be taken.

You will forgive me for saying so, cabinet secretary, but that does not add anything. Will you give a practical example of the sort of situation that was causing difficulty?

A whole variety of matters were causing difficulties and they had been flagged up, including by the police. We also knew about possible references to the SCCRC. Indeed, that came from the Supreme Court itself. In their judgment, Lord Hope and Lord Rodger referred to difficulties that they could envisage. The Association of Chief Police Officers in Scotland had already raised difficulties with detention. Previously, difficulties had been raised on a variety of matters, but they were being compounded—

I am sorry to interrupt you, cabinet secretary, but I seek clarity on the practical difficulties. The 2010 act did not sort out the business of accommodation. What problem could not continue to have been dealt with under the Lord Advocate’s guidelines, at least for a period?

The Association of Chief Police Officers in Scotland raised problems with detention in serious cases where multiple accused each request a different solicitor, when time limits are about to expire and in cases involving foreign nationals where translation is required. It also raised cases where one or more suspects is a juvenile, in which cases the police are required to contact and secure the attendance of a responsible adult. In addition, cases where distance and rurality are involved were highlighted. In such cases, ACPOS said that the time limit may be insufficient. ACPOS raised a variety of matters with us and it specified situations that the police were finding it impossible to cover. That is why we acted.

We have just heard from ACPOS that, since the 2010 act came into force, only a quarter of 1 per cent of cases have required the use of a period beyond six hours. [Interruption.] Is that not what we heard? I thought that I heard that when I came in.

Beyond 12 hours.

There are 58 such cases.

I think that I can help with that. My understanding is that Mr Brown is referring to extensions beyond 12 hours. The tentative figures that we have from ACPOS for detentions that exceed six hours but are below 12 hours, which are based on quite a short run of data, are between 15 and 20 per cent. That is my understanding.

Fair enough. Okay.

I go back to the 2010 act and the timescales. The bill was introduced within hours of the judgment, rather than days or weeks. The Scottish Human Rights Commission, which is the statutory body that was set up by the Parliament to give advice and to have a standing on human rights issues, has repeated a particular complaint. It has indicated that it was not consulted on the bill at all before it was introduced. Given that we are talking about an issue that was known about from July—or probably before that—why on earth did you not consult the Scottish Human Rights Commission?

We immediately dealt with the key stakeholders that are involved in the day-to-day administration of criminal justice: the Law Society of Scotland, the judiciary, ACPOS and the Crown. My understanding is that the Scottish Human Rights Commission’s views were sought and an SHRC representative is on the Lord Carloway reference group. Its views have therefore been factored in, but the primary people—

I am sorry to interrupt, but the senior human rights commissioner said that the Scottish Human Rights Commission was not consulted prior to the bill being introduced. Is that not the case? Are you challenging that?

No. I am saying that we approached the statutory bodies and other bodies that we normally deal with. My understanding is that a late intimation was received from the Scottish Human Rights Commission, but we spoke to the bodies that deal with matters on a day-to-day basis. As I said, the SHRC is represented on Lord Carloway’s review committee, which shows the judiciary’s position in seeking to have the SHRC’s views imported.

I am sorry, but we are talking about the biggest single human rights issue that has come before the Parliament or challenged the Government. The Parliament set up the Scottish Human Rights Commission to be a repository of advice on such substantive matters. Why on earth did you not take the opportunity to consult the Scottish Human Rights Commission before the bill was introduced, with a view to safeguarding its ECHR compliance among other things?

We had to address the issue using emergency legislation, which meant discussing it with those who deal with the matter on a day-to-day basis—that is, Scotland’s courts of law, the police, the prosecution service and defence solicitors. Those are the primary responsible bodies and we approached them.

As I said, the views of the Scottish Human Rights Commission are taken on board and represented on the review committee under Lord Carloway, but the primary day-to-day participants are the bodies to which I referred and we sought to work with them.

I merely observe that it is difficult to see how the views of the Scottish Human Rights Commission could have been taken on board if it was not consulted.

May I ask a further—

I am sorry, but we are short of time. We will come back to you after other members have had the opportunity to ask questions.

Cabinet secretary, we heard in last week’s evidence the view expressed that the bill was rushed through as emergency legislation, that it was not given due consideration, and that we could have continued with the Lord Advocate’s guidelines in the interim until legislative proposals were dealt with in a more considered manner.

You countered that by saying that the Lord Advocate’s guidelines were essentially not fit for purpose and that they were challenged on appeal. How many appeals have been lodged because the Lord Advocate’s guidelines were not robust enough and can you give the committee some background in that respect?

10:45

Michelle Macleod will respond to that on behalf of the Crown Office.

Perhaps I can assist the committee. At the moment, there are 24 live appeals that relate to different points in the Cadder judgment and which are distinguishable from appeals related to cases that have become known as the sons of Cadder.

There has been a challenge in respect of the rights—or, indeed, the lack of them—under the Lord Advocate’s guidelines, with the person in question appealing on the basis that they were not provided with their legal right. However, other on-going appeals that have been made on the basis that people waived their rights without being fully informed of them clearly relate to how the guidelines were interpreted or implemented at the time. As the appeals are on-going and sub judice, I would not care to say anything more specific about them, but even in the evidence that he gave last week Mr McGovern mentioned on-going challenges that he was aware of, relating to cases that had arisen when the Lord Advocate’s guidelines were in place.

I respect your point that the appeals are sub judice. Did you say that there were 24 live appeals but that only one of them was a challenge relating to the Lord Advocate’s guidelines?

No. I am aware that one of the appeals relates specifically to the type of right that was provided under the guidelines. I understand that other appeals challenge aspects of the guidelines and their implementation. I do not have the full facts and circumstances of all the different issues but, as Mr McGovern said last week, some of the challenges relate in particular to waivers that were made under the guidelines.

You might not have heard it but, in his evidence, Chief Superintendent Paul Main mentioned some of the day-to-day practical difficulties that the Lord Advocate’s guidelines were causing. If we had not introduced emergency legislation but had simply carried on with the guidelines, given the practical difficulties—for example, the six-hour extension to the detention period that was provided for—and the 24 appeals that have been made on a range of issues including the guidelines, would the various legal difficulties that have arisen have put the whole system in danger? Indeed, as more and more appeals were made and as the practical difficulties increased with suspects becoming aware of the ability to block their period of detention by, as we heard this morning, waiting for three hours and then changing their minds and asking for a solicitor, would the system simply have unravelled?

Yes. Even before the Cadder decision, ACPOS had envisaged that, under the six-hour timescale, problems would arise with people under the influence of drink and drugs; indeed, it had experienced such problems. It was clear that, when the grounds changed with regard to Cadder, the difficulties faced by the police would only be increased and exacerbated in the cases involving multiple accused, youngsters, translators and so on that I highlighted earlier. Not only would an investigating officer’s life have been made more difficult, but justice would have been compromised. You are also correct to suggest that the number of challenges would have increased exponentially. A small industry out there is seeking to challenge these matters; of course, it is entitled to do so, but I am sure that its representatives would have taken the opportunity to lodge minutes and whatever else with regard to these issues. We acted immediately and appropriately to protect the rights of all our citizens and communities.

On a more practical point, I asked ACPOS whether police stations are suitable for holding suspects for longer periods. Are they fit for purpose in that respect? Last week, the witness from the organisation Justice expressed concern that welfare checks were not sufficient compared with what happens south of the border under the Police and Criminal Evidence Act 1984.

Thank you. I think that that is a valid question. Detention is one aspect of being held in police custody. Police have to be prepared to hold suspects in custody for appearance in court, which can involve holding them over a weekend. They therefore have the experience and capacity to deal with such issues. I have no doubt that there are specific locations and facilities that will require some adaptation and improvement. Police in various areas are reviewing facilities and costs, which were factored into the financial memorandum. Police spend to date on facilities has been low, which suggests that there are few locations where there is an urgent and pressing need. It is a matter of the police being pragmatic and flexible while recognising the need for facilities—in the main, such facilities do exist in most jurisdictions.

Is there any evidence to suggest that in rural areas the police are using the extended periods disproportionately because of the lack of available solicitors? Is there any foundation to that suggestion?

That matter might be addressed more appropriately by ACPOS. There is no evidence from those on the front line that there is different practice in rural areas.

There are clearly issues in terms of rurality, and we are giving the Scottish Legal Aid Board responsibility for establishing a police station duty solicitor scheme, which will commence in July and will aim to offer a high-quality service throughout the country. We need to recognise that delays can occur in some areas for reasons of traffic, other commitments, weather or unforeseen circumstances. The detention regime has to recognise that and be able to adapt to circumstances without imposing a lot of additional bureaucracy. Lord Carloway’s review will clearly investigate that.

There are situations in which difficulties arise. I visited Arran recently and met the four officers stationed there. I was told that there is no lawyer on the island and, unless a lawyer got the ferry over before 7 o’clock in the evening, they would have to wait until 7 in the morning for the next one. There are such jurisdictions in Scotland, which is why we have to have some flexibility—occasionally incidents arise in places such as Arran. That is why there is the possibility of a telephone call, if that is what the person who is detained wants. Equally, we have to have a period of extension to allow for circumstances, such as those in Arran, or inclement weather.

I have one other question on the 2010 act and the Lord Advocate’s guidelines. Michelle Macleod said that there had been one challenge to the Lord Advocate’s guidelines in relation to whether there was a legal right, but a number of other cases involved the waiving of rights. We have put in place the 2010 act, which has things in it about the waiving of rights that have been the subject of some comment. Does it change the law in any respect from what existed before? Can you really say that the act, with regard to the waiving of rights, will be immune—not from challenge; people can always challenge things—but from successful challenge?

I think that the Lord Advocate did all that she could by introducing guidelines as a short-term measure. I thought that that was the appropriate thing to do, but we could not rest on the guidelines. The guidelines did not provide a legal right. The Lord Advocate made her position plain: the rights should be enshrined and her guidelines withdrawn as quickly and expeditiously as possible. That is what we did.

The Lord Advocate asked the Supreme Court whether we could defer the implementation of its decision for four months, to allow any steps to be put in place that were necessary following its decision. The Supreme Court declined but, in an unprecedented step, stated that it would delay its decision for four months, which was a clear signal that the Crown and Government required to plan for legislation. There was a need to prepare for contingencies, but the guidelines were simply not enough. It was for that reason that we had to have scenario planning. We did not have information that a scenario would definitely arise, but we prepared for it. We could not undermine existing legislation, given the decision in HMA v McLean and the attitude that the Lord Advocate correctly took in debating matters before the Supreme Court, but it was quite clear that if a change was to come—as came around—guidelines would not be enough and statutory powers would be necessary.

That is not what I asked. I asked whether you thought that we were now immune from successful challenge on the particular issue of the waiving of rights—which I think was provided for in the Lord Advocate’s guidelines to a degree and in the legislation—given the significance of that particular aspect.

You cannot waive a right that you do not have. What we have are ACPOS guidelines on how we deal with vulnerable people and children, and the statute before us. I am not sure what further points you wish to pursue on that.

I am really asking whether you think that the 2010 act—which we passed with such haste, despite four months of possible preparation time—deals satisfactorily and fully with the question of waiving rights, or whether the challenges that are coming forward already will pose a problem for the Government.

We think that the 2010 act and the ACPOS guidelines, which still exist, provide sufficient cover in the interim to balance the rights of the accused with the requirements of those who investigate and prosecute crime to protect our communities. We accept that it was emergency legislation and as such was brought in more quickly and with less scrutiny than other legislation, which is why we have instigated Lord Carloway’s review. I doubt very much that it is the ultimate solution; that is why Lord Carloway is carrying out his review.

Was it necessary to take those steps to protect our communities and the victims of crime? Sadly, we have not been able to protect them all, as has been raised in the chamber with regard to cases that have fallen with manifest injustice. However, the legislation was the appropriate step to take, it has provided the appropriate balance and it will be reviewed by Lord Carloway to examine how we can add to it, whether that is by adding to the rights of the Crown, the police or the accused.

Good morning, cabinet secretary. We heard last week that guidance was sufficient in the interim period, and therefore we did not need to have a statutory footing. You admitted in your answer to the previous question that the emergency legislation that was passed is sufficient cover in the interim, so it is clear that it is not long-term legislation.

Given that the law lords gave us a three or four-month period of notice before they gave their judgment, why did you not cast your net wider and consult more people while the interim guidance was in place? That is the criticism that has been levelled at the Government, and at the Parliament and all those who voted for the legislation.

I tried to raise an issue with you in Parliament that a constituent had raised with me. I have not had an answer to that, and you have not answered the questions this morning. Why did you not feel it necessary to use the period over the summer to consult on such a serious case?

Well, we did—public consultation took place—but you have to remember the circumstances that we were in. The judges had upheld the status quo, the United Kingdom Supreme Court had not reached a decision—there were numerous authorities for it to consider and numerous potential outcomes—and the Lord Advocate had presented a robust defence. We established a working group and worked through the issues with the Crown, ACPOS, the Scottish Legal Aid Board and the Law Society of Scotland.

We had to plan for several different scenarios. We could not make assumptions about what the Supreme Court’s position was going to be—it could have come to a variety of decisions—so we briefed justice spokespersons in all parties, and we met representatives in Parliament, asked for their views and kept them apprised of matters. We consulted the necessary and appropriate bodies, and people took the opportunity to fire in their own views on a variety of issues. I think that that was an appropriate balance.

We could not—if Cathie Craigie is suggesting that this would have been appropriate—have gone out and said that we knew what the Supreme Court was going to decide, because we did not: the Government does not have the benefit of second sight. In May 2010, we could not have made assumptions about what the decision of the court down in London was going to be. The Supreme Court’s decision ultimately went against the standing decision of a large bench of judges in Scotland, and was contrary to the arguments that the Lord Advocate presented in court.

We could not undermine the High Court in Scotland or the Lord Advocate’s position, but we had to prepare for their position being undermined by the Supreme Court, which is what we did. We consulted appropriately the relevant bodies: not only the legal stakeholders, but the Opposition parties. At every stage, we sought to ensure that we proceeded on a non-partisan basis, taking on board the views of Bill Aitken, Richard Baker and, indeed, Mr Brown, who was present. We viewed the matter as one of national interest and we acted in the national interest.

11:00

I am not saying that the Government or you, cabinet secretary, should have prejudged what the court might determine. However, it has been put to the committee in written evidence, to a degree it was put to the committee in oral evidence that we received last week, and it has been put to me as a constituency MSP that the Government had an idea of the outcome, so it could have consulted on options depending on the judgment of the court. That is where the failure was: we did not consult. By its very nature, emergency legislation does not come along very often, but we in Parliament must learn from our mistakes when we have been forced to introduce legislation. The Parliament made a mistake with this legislation by not consulting properly.

There are two issues. First, it would have been very difficult to conduct the public consultation that you seem to wish for on a matter that was being decided by the courts and was going to turn decades of Scots law on its head. There would have been a grave danger of undermining the support for and faith in the existing system, never mind undermining and challenging the authority of the Lord Justice General, the Lord Justice Clerk and the Lord Advocate, all of whom took a position contrary to that of the Supreme Court. There is an obligation on each of us who is elected to office as an MSP, and on the justice secretary, to support those institutions when they represent the law of Scotland. They were doing that, and it would have been counterproductive to have a public inquiry or consultation that sought to undermine those institutions when they were taking the appropriate and correct position at the time. I cannot see how a consultation would have added anything.

Secondly, I am still gobsmacked that many of those who are saying that we should have had a consultation prior to May—and indeed many years before May—seem to be saying in the same breath that the action that was taken was precipitous and beyond what was necessary. They seem to be saying that we should have acted but we should not have acted so quickly. That seems to be perverse.

My understanding is that the 2010 act provides for a private consultation with a solicitor. How is that consistent with the Supreme Court’s decision, which as some people read it is more about a solicitor being present during questioning?

The 2010 act allows for advice to be provided by telephone, but I make it clear that, as was the case with the Lord Advocate’s interim guidelines and ACPOS’s guidance, a face-to-face consultation should take place if a suspect requests that a solicitor attend in person. The ACPOS guidance helpfully explains that a solicitor may raise issues with the police, who may have to consider how to respond in individual cases. The guidance also encloses for information the practical pointers from Justice, which were written by Jodie Blackstock and John Scott. When the accused is undecided about taking advice in person, advice by telephone may lead to advice being given in person, so the 2010 act is permissive. I noted that Professor Miller suggested to the committee that electronic means of consultation might be appropriate in rural areas. I will be happy to see what Lord Carloway recommends on that.

So you are quite clear that the Cadder judgment does not mean that it is necessary for a solicitor to be present while a suspect is being questioned by the police.

That right can be waived. If the detainee is happy to deal with a solicitor by phone or does not wish to have a lawyer present, a lawyer does not have to be there.

We heard this morning from Chief Superintendent Main about the ACPOS guidance on solicitor access when children or vulnerable adults are detained as suspects. Why does the 2010 act not make specific provision for those groups?

Specific guidance has been issued to police on the provision of access to a solicitor for accused aged between 16 and 18, given their potential vulnerability. The Lord Advocate has instructed that a presumption should be inserted into the ACPOS guidelines that children and those aged 16 and 17 should have access to a solicitor and that every effort should be made to obtain solicitor services.

In January, the deputy Crown Agent wrote to chief constables on that point, with a view to improving safeguards for children and vulnerable suspects, especially in regard to having an informed waiver of the right to a solicitor. ACPOS has built that into its guidelines for solicitor access.

Additionally, police forces in Scotland have had a focus on minimising the frequency with which they keep children in custody for court since the thematic inspection by Her Majesty’s inspectorate of constabulary for Scotland in June 2008. In specific regard to children, police forces throughout Scotland work with local authority social work departments to ensure that children are kept in police offices only when no alternative is available. The 2010 act has not changed that safeguard.

In its discussions with officials, ACPOS has indicated a wish to keep children and vulnerable people, in common with all other detained and arrested persons, in police custody for as short a period as possible.

That is helpful and welcome information, but why does the 2010 act address, if you like, normal detained suspects—adults who are not vulnerable and suspects who are not children? Why does it not specifically mention those two other groups?

We took the view that the ACPOS guidance on that sufficed. We have the working arrangements with social work departments. On that basis, we will be happy to see what advice and recommendations we get from Lord Carloway. However, the issue is complex. Not all individuals who are 17, or whatever, are in the same position. We sought to ensure that we preserved the rights, which are covered in the ACPOS guidance. Lord Carloway will investigate the matter. However, as I say, the current protections and safeguards are sufficient. Given its complexity, the issue is better considered by Lord Carloway over a period of time rather than legislated on immediately.

There is very little in the Criminal Procedure (Scotland) Act 1995 on dealing with detention of vulnerable people, so the Cadder act has not necessarily changed anything—it has just very much continued the status quo. The only provision that is relevant to detention is that when a child is detained, they have a right for their parent, usually, to be with them, unless there are exceptional circumstances. Cadder has just reflected that—that continues to be the case. However, there is little in the 1995 act about additional safeguards for children and vulnerable people.

So the 2010 act basically reflects the situation as was.

Yes.

When the emergency legislation was passed, the position in the financial memorandum was that up to 500 police officers would be required to support it. You said earlier that police resource was low or limited. There is some dispute about the implications of the Cadder judgment—we see the sons of Cadder cases—and about the issue of when a suspect’s right to a solicitor kicks in, which indicates that there might be a greater role for the police. Will you give us more detail about the impact of the emergency legislation on the involvement of police officers and the implementation of the procedures at police stations?

I am happy to do my best, although that question might better be put to Chief Superintendent Main.

I have a further breakdown of ACPOS costs. The estimated costs are: £4,500 for training, which means local training and production of training materials; £124,081 for custody, which is the conversion of existing facilities, new-build facilities and telephony; £98,441 for data gathering, which entails collation of statistical data, information technology costs and staff costs; and £77,342 for the solicitor access implementation team, which is staff costs. That brings ACPOS costs to a grand total of £323,342. I would much rather have spent the money on front-line police services, but it is not the meltdown figure that was being bandied around at one stage.

That is all very well, cabinet secretary, but the financial memorandum said that 500 police officers might have to be taken off the streets to operate the procedures in police stations. You said that police resource on the new arrangements is low. Can you square the two comments and give more information?

I said at the time that extraordinarily cautious positions were being put forward. I have provided the factual information that was given to me. If you want to drill down further, I can say only that my understanding is that the number of officers that was referred to has not been necessary. It might have been better to ask the ACPOS representative who gave evidence earlier about the matter.

I can only repeat what I have been advised by ACPOS; I have given you the figures. I am not aware of 500 officers being taken off front-line community policing to deal with the outcome of the Supreme Court decision—which we very much regretted—but I am sure that ACPOS will be happy to provide the further information that you have wanted to ask about since Mr Main left.

As Cabinet Secretary for Justice, you were responsible for the emergency bill that went through the Parliament, including the financial memorandum, which said that 500 officers would be involved. You have repeatedly said that that is not the case. You said that resource is low. I am pressing you to indicate the figures, but you do not seem to have the detail to hand.

I gave you the figure of £323,000—or whatever it was—as the cost. It might not be the apocalypse that you have been looking for, Mr Kelly. Why you always seem to want the worst-case scenario to befall us, I do not know. I have narrated the information that we have. It might disappoint you, but I cannot comment beyond that. If you want me to obtain more information from ACPOS, I will happily do so. Why you did not ask Mr Main for the information, I do not know, but I am more than happy to ask him for you.

I merely seek accuracy, cabinet secretary. You said that police resource on the new arrangements is low and I am asking you to back that up. You had said that the new arrangements might require 500 police officers. To be fair, you now say that that is not the case. I am asking you to demonstrate why 500 officers are not needed and to say how many officers have been taken off the streets and into police stations to implement the new procedures.

I demonstrated the information that ACPOS provided. I am the justice secretary, not a chief constable or representative of ACPOS. I have provided you with the information that was made available to us. You had an opportunity to ask questions of ACPOS. For whatever reason, you did not ask ACPOS about the matter, but I am more than happy to do so on your behalf.

All that I can do is assure you that, despite your desire, 500 officers have not been taken off the front line. As you correctly said, that is the figure that was put in the financial memorandum, as the doomsday scenario. We are thankful that the doomsday scenario has not occurred. That might disappoint some people, but why that should be the case when it is clear that the doomsday scenario would damage communities, I do not know. I will happily ask ACPOS for more information.

On the doomsday scenario in the financial memorandum, I presume that when a financial memorandum accompanies a bill that will go through the Parliament, whether it is an emergency bill or a normal bill, you are confident that the information that you provide to members is as accurate as it can be. It is clear from evidence that we heard last week and from other people that the information that we were given was not accurate. It is also clear, from your evasive approach to answering questions, that you do not have accurate information. That is not how a Parliament should operate.

I presume that there was a question in that statement. I will try to respond. It is obvious that a financial memorandum contains a wide range of figures, from low to high, to cover a range of possible scenarios. We were dealing with emergency legislation to address a situation that was neither anticipated nor welcomed, and a worst-case scenario that would have involved significant police time and changes to police stations and custody suites. Thankfully, that has not occurred.

As I have said, that is the information that is before me. Most of the practical matters relating to police stations and police officers fall within the domain and jurisdiction of ACPOS. I do not know why you did not ask ACPOS but, as I have said, I have provided the committee with the most accurate briefing and information from ACPOS that we possess. The Government is delighted that the worst excesses that might have arisen because of the Supreme Court decision have not arisen. I would have thought that that would be welcomed by all, especially people in our communities.

11:15

Professor Alan Miller of the Scottish Human Rights Commission stated that there is a “real worry” that section 7 of the 2010 act could affect the Scottish Criminal Cases Review Commission’s ability to review and refer cases in which an alleged miscarriage of justice might have occurred. Do you have any comments to make on that?

The Supreme Court judgment said that closed cases should not be affected, although it raised the issue of applications to the SCCRC. As I said, the matter was raised by both of the Scottish judges in the Supreme Court, Lord Hope and Lord Rodger. Those senior Scottish judges raised the issue, and the Supreme Court noted that the SCCRC would have to determine whether it would be in the public interest for cases that had already been finally determined to be referred to the High Court, which in turn would have to decide how to deal with such cases if a reference was made.

In section 7, we legislated to prevent the SCCRC from being seen as a means to undermine the need for finality and certainty in existing convictions, as referred to by the Supreme Court. The SCCRC plays an important role and it was in no one’s interest for it to receive a large number of speculative actions on the back of Cadder. Building on the principles to which the Supreme Court referred, the 2010 act makes clear that there is a high bar for concluded cases to be reopened and reinforces the importance of finality and certainty in cases in which there has been a change in law.

In England, broadly similar provisions have been in place for a number of years in relation to the Criminal Cases Review Commission. The SCCRC recognises that certainty and finality are appropriate parts of the test of the interests of justice. The 2010 act specifies the power of the court to consider the interests of justice, and certainty and finality are aspects of that. I felt that both elements were required as a deterrent and to ensure fairness. I believe that the provisions in the emergency legislation have been effective in reinforcing finality and certainty. They will be subject to review by Lord Carloway.

Those significant possibilities were flagged up to us by Lord Hope, Lord Rodger and the Supreme Court and, as I say, we progress with the support and consent of the SCCRC.