. . . but Scottish law is different | AccountingWEB

. . . but Scottish law is different

Members of this Money Laundering and Crime discussion group will be aware that from time to time I draw attention to differences between the laws of Scotland and those of England & Wales.

In terms of reporting of suspicions of money laundering there is no great problem.  The provisions of Part 7, Proceeds of Crime Act 2002 and the Money Laundering Regulations 2007 apply to Scotland as much as to England & Wales.  There may be some difference of opinion, North and South of the Border, as to whether a person may properly be convicted of failing to report a suspicion of money laundering where, in fact, no actual money laundering has been proven to have taken place (in which the Scots seem to take a tougher line than the English) but that is a matter of detail.

Also, of course, the Scots have a legal obligation to report suspicions of certain crimes other than money laundering (see an earlier article in this discussion group).  There is no equivalent statutory obligation in England & Wales.

In recent years however there have been a couple of significant upsets from legal challenges to procedures operated at police stations in Scotland.

By way of background, in England & Wales we have two major Acts of Parliament covering police investigations of suspected crimes - the Police and Criminal Evidence Act 1984 and the Criminal Procedure and Investigations Act 1996.  For the most part, these Acts do not have effect in Scotland.

Instead there are Acts such as the Criminal Justice (Scotland) Act 1980 and the Criminal Procedure (Scotland) Act 1995, as well as a great body of common law, which apply in Scotland.

It had been, until relatively recently, common practice for police in Scotland to detain and interview suspects without first offering them access to legal advice from a solicitor.  Following the decision of the Supreme Court in 2010 in the case of Cadder it is clear that transcripts of such interviews are not admissible evidence in criminal trials.  The criminal law and police station procedure in Scotland have had to be amended as a result.

Last year there was another upset in the case of Yvonne Cowie who had been detained by police, interviewed, charged and then required to supply a sample of saliva for DNA testing.  The court has held that the evidence from the DNA test is not admissible.  This is because the swab was taken AFTER she had been charged rather than BEFORE charging.  Once she had been charged the detainee's status had changed as regards the police and their powers.  Whilst they could have invited her to supply a saliva sample after charging her they could no longer require her to provide one.

Again it may be the case that police station procedures have not followed the law and as a consequence the results of many DNA tests may no longer be admissible in evidence.

The criminal law is a fascinating labyrinth!


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