Review of law and practice


Justice Secretary Kenny MacAskill today confirmed that the independent review of Scottish law and practice, announced in the wake of the UK Supreme Court decision on the Cadder case, is now underway.

The UK Supreme Court in their decision of October 26 determined that detention of suspects by the police for up to six hours without access to legal advice did not comply with the European Convention on Human Rights (ECHR). That decision led to the passing of emergency legislation by the Scottish Parliament, in order to ensure compliance and stability in the criminal justice system.

The review, led by Lord Carloway, a senior High Court judge, will look at a range of aspects of Scottish criminal law and practice in the aftermath of the Cadder decision.

Mr MacAskill said:

“The decision of the Supreme Court in the Cadder case overturned decades of legal practice in criminal law in Scotland. It disrupted the carefully developed system of checks and balances that existed to ensure anyone accused of a crime received a fair trial, while at the same time helping bring criminals to book.

“I did not seek this decision but had to act swiftly to address it, introducing emergency legislation that helped mitigate the impact by changing the law on accessing a solicitor during detention and interview by the police. At the same time, we extended the period our police can detain an individual to 12 hours, extendable to 24 hours with the approval of a senior police officer.

“We believe these measures introduced by the Parliament have taken the immediate action necessary to restore a degree of balance to Scotland’s justice system However, these immediate measures could only be based on a limited degree of consideration and consultation and I have made clear from the outset that a wider-ranging review of law and practice is required to address all of the relevant issues in depth. I have therefore asked one of our most respected judges to examine the implications the Cadder ruling has had on our criminal law and procedures.

“I am pleased that Lord Carloway has accepted my invitation to lead this important piece of work. He will also examine the emergency legislation passed overwhelmingly by Parliament and report on further changes that might be necessary to ensure our proud and distinctive justice system is able to continue to protect the people of Scotland.In doing so, he will be engaging with a wide range of relevant interests.”


The remit of the review, entitled ‘Access to Legal Advice in Police Detention: Consequences for Law and Practice’, will be:

  • To review the law and practice of questioning suspects in a criminal investigation in Scotland in light of recent decisions by the UK Supreme Court and the European Court of Human Rights, and with reference to law and practice in other jurisdictions
  • To consider the implications of the recent decisions, in particular the requirement for legal advice prior to and during police questioning, and other developments in the operation of detention of suspects since it was introduced in Scotland in 1980 on the effective investigation and prosecution of crime
  • To consider the criminal law of evidence, insofar as there are implications arising from (b) above, in particular the requirement for corroboration and the suspect’s right to silence
  • To consider the extent to which issues raised during the passage of the Criminal Procedures (Legal Assistance, Detention and Appeals)(Scotland Act) 2010 may need further consideration, and the extent to which the provisions of the Act may need amendment or replacement

To make recommendations for further changes to the law and to identify where further guidance is needed, recognising the rights of the suspect, the rights of victims and witnesses and the wider interests of justice while maintaining an efficient and effective system for the investigation and prosecution of crime

The review is expected to be completed in the course of next year, in time for legislation to be considered during the 2011-12 Parliamentary session.

The decision of the UK Supreme Court in the case of Cadder determined that detention for up to six hours without access to legal advice did not comply with the European Convention on Human Rights. Immediately after the publication of the judgment on 26 October 2010, the Scottish government introduced emergency legislation to:

  • introduce a right of access to legal advice before and during questioning;
  • extend the period during which a person may be detained under section 14 of the Criminal Procedure (Scotland) Act 1995 to 12 hours in all cases and to 24 hours in serious cases with the approval of a senior police officer;
  • give Ministers powers to adjust legal aid eligibility rules;
  • and introduce measures to ensure certainty and finality in concluded cases.

The Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 was passed on 27 October 2010 under emergency procedure and came into force at 0000 on Saturday 30 October.