Questioning of suspects by police in Scotland

Until a few years ago I was extremely ignorant of the fundamental differences between criminal law in Scotland and that in England & Wales.  I feel that I am still too ignorant on this topic, but not as ignorant as I once was!

It would come as a surprise, I think, to most accountants South of the border to learn that something as basic as the Theft Act 1968 does not apply in Scotland - and there is no equivalent statute in Scottish law.  This does not mean that theft is regarded as legal in Scotland.  It is in fact a reflection of the different way law is 'made' in Scotland.  Much of Scottish criminal law does not emanate from Acts of Parliament at all.  It is more akin to what in England & Wales is known as 'common law'.

If you wish to check the nitty gritty of the legal constituents of theft in Scotland you will turn, not to a section of an Act of Parliament, but to learned texts and court decisions on the topic.  Then, armed with that knowledge and understanding, you can look at the facts of the case you have in mind and come to a conclusion as to whether it is a case of theft.

But some statute law does apply equally North and South of the border - including, for example, the provisions of the Proceeds of Crime Act 2002 which relate to money laundering.

In Scotland, unlike in England & Wales, a person cannot be convicted of a crime based upon his own confession uncorroborated by any other evidence, nor can a person be convicted based solely on uncorroboorated evidence from one person.  (That is not to say that there must be two 'live' witnesses - corroboration can come from other sources, such as fingerprints, DNA evidence, etc.  They key is that not all of the prosecution evidence comes from a single source.)  There is no such rule in England & Wales (although there are those who think that there should be).  The rule on corroboration can have a significant impact in cases of alleged sex offences or domestic violence for example - particularly if there is no forensic evidence available.

Also if a person interviewed by police in Scotland chooses to say nothing at all when questioned it is not permitted in court for the jury to be invited to draw adverse inferences from the defendant's silence.  In England & Wales it can be said to a jury that the defendant's failure to explain himself when first questioned puts in doubt the validity of any explanation offered by him later.

However in Scotland it has been for many years the normal practice for a suspect to be detained and questioned by police for up to 6 hours without any opportunity to obtain legal advice prior to questioning.  That practice is enshrined in sections 14 & 15 Criminal Procedure (Scotland) Act 1995.

The UK Supreme Court has held in a recent judgment (published 26 October 2010) that this practice is a contravention of human rights and is unlawful.  It follows that the suspect's answers to police questions in these circumstances cannot now be used in evidence at his trial.

This requires a major change to police procedures in Scotland and indeed significant changes to Scottish statute law.  New legislation is to be hurried through the Scottish Parliament before the end of October.

It also means that, where cases have yet to come to court or appeals are still live, the Scottish courts will have to proceed without the evidence obtained in such questioning.

But the judgment has no effect outside Scotland as suspects are routinely permitted to obtain legal advice (either in person or by telephone) when detained at police stations elsewhere in the UK before their questioning commences.

David

www.AccountingEvidence.com