The Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (Consequential Provisions) Order 2011

Article 2(1)

SCHEDULE 1 Amendments of Part 3 of the Criminal Law (Consolidation) (Scotland) Act 1995

Introductory provision

1.  Part 3 of the Criminal Law (Consolidation) (Scotland) Act 1995(1) (investigation of Revenue and Customs offences) is amended as follows.

Right of suspects to have access to a solicitor

2.  In section 24 (detention and questioning at office of Revenue and Customs), in subsection (5)—

(a) in paragraph (e), for “section 25(1)” substitute “sections 25(1) and 25A(2) and (3)”;

(b) in paragraph (f), after “25(1)” insert “or 25A(2)”.

3.  In section 25 (right to have someone informed when detained), in subsection (1) the words “solicitor and to one other” are repealed.

4.  After section 25 insert—

“25A.    Right of suspects to have access to a solicitor

(1) This section applies to a person (“the suspect”) who—

(a) is detained under section 24;

(b) attends voluntarily at an office of Revenue and Customs or any other premises or place for the purpose of being questioned by an officer on suspicion of having committed a Revenue and Customs offence; or

(c) is arrested (but not charged) by an officer in connection with a Revenue and Customs offence and is being detained at an office of Revenue and Customs or any other premises or place for the purpose of being questioned by an officer in connection with the offence.

(2) The suspect has the right to have intimation sent to a solicitor of any or all of the following—

(a) the fact of the suspect’s detention, voluntary attendance or arrest (as the case may be);

(b) the office of Revenue and Customs or other premises or place at which the suspect is being detained or is attending; and

(c) that the solicitor’s professional assistance is required by the suspect.

(3) The suspect also has a right to a private consultation with a solicitor—

(a) before any questioning of the suspect by an officer begins; and

(b) at any other time during such questioning.

(4) Subsection (3) is subject to subsections (8) and (9).

(5) In subsection (3) “consultation” means consultation by such means as may be appropriate in the circumstances (and may include, for example, consultation by means of telephone).

(6) The suspect must be informed of the rights under subsections (2) and (3)—

(a) on arrival at the office of Revenue and Customs or other premises or place;

(b) in the case where the suspect is detained under section 24 after such arrival, on the suspect’s detention; and

(c) in the case where the suspect is arrested as mentioned in subsection (1)(c) after such arrival, on arrest;

and it is immaterial in a case to which paragraph (b) or (c) applies whether or not the suspect has previously been informed of the rights.

(7) Where a suspect wishes to exercise the right to have intimation sent under subsection (2), the intimation must be sent by an officer—

(a) without delay; or

(b) if some delay is necessary in the interest of the investigation or the prevention of crime or the apprehension of offenders, with no more delay than is necessary.

(8) In exceptional circumstances, an officer may delay the suspect’s exercise of the right under subsection (3) on any occasion so far as it is necessary in the interest of the investigation or the prevention of crime or the apprehension of offenders that the questioning of the suspect by an officer begins or continues without the suspect having exercised that right on that occasion.

(9) Subsection (3) does not apply in relation to the questioning of the suspect by an officer for the purpose of obtaining the information mentioned in section 24(8A).”

Increase of maximum period of detention under section 24 from 6 to 12 hours

5.—(1) Section 24 (detention and questioning at office of Revenue and Customs) is amended as follows.

(2) In subsection (2)—

(a) for “Detention” substitute “Subject to section 24A, detention”;

(b) for “six hours” substitute “12 hours”.

(3) In subsection (4), for “six hours” substitute “12 hours”.

Extension of period of detention under section 24

6.  After section 24 insert—

“24A.    Extension of period of detention under section 24

(1) This section applies in relation to a person who is being detained under section 24 (“the detained person”).

(2) Before the expiry of the period of 12 hours mentioned in section 24(2), a custody review officer may, subject to subsection (4), authorise that period to be extended in relation to the detained person by a further period of 12 hours.

(3) The further period of 12 hours starts from the time when the period of detention would have expired but for the authorisation.

(4) A custody review officer may authorise the extension under subsection (2) in relation to the detained person only if the officer is satisfied that—

(a) the continued detention of the detained person is necessary to secure, obtain or preserve evidence (whether by questioning the person or otherwise) relating to an offence in connection with which the person is being detained;

(b) the offence in connection with which the detained person is being detained is one that is an indictable offence; and

(c) the investigation is being conducted diligently and expeditiously.

(5) Where section 24(4) applies in relation to the detained person, the references in subsection (2) of this section to the period of 12 hours mentioned in section 24(2) are to be read as references to that period as reduced in accordance with section 24(4).

(6) Where a custody review officer authorises the extension of the period of detention under subsection (2), section 24 has effect in relation to the detained person as if the references in it to the period of 12 hours were references to that period as extended by virtue of the authorisation.

(7) In this section and section 24B, “custody review officer” means an officer who—

(a) is of a rank at least equivalent to that of a police inspector; and

(b) has not been involved in the investigation in connection with which the person is detained.

24B    Extension under section 24A: procedure

(1) This section applies where a custody review officer is considering whether to authorise the extension under section 24A(2) of the period of detention of a person who is being detained under section 24 (“the detained person”).

(2) Before deciding whether to authorise the extension, the custody review officer must give either of the following persons an opportunity to make representations—

(a) the detained person; or

(b) any solicitor representing the detained person who is available at the time the officer is considering whether to authorise the extension.

(3) Representations may be oral or written.

(4) The custody review officer may refuse to hear oral representations from the detained person if the officer considers that the detained person is unfit to make representations because of the person’s condition or behaviour.

(5) Where the custody review officer decides to authorise the extension, the officer must ensure that the following persons are informed of the decision and the grounds on which the extension is authorised—

(a) the detained person; and

(b) any solicitor representing the detained person who is available at the time the decision is made.

(6) Subsection (7) applies where—

(a) the custody review officer decides to authorise the extension; and

(b) at the time of the decision, the detained person has not exercised all the person’s rights under sections 25 and 25A.

(7) The custody review officer must—

(a) ensure that the detained person is informed of the rights under sections 25 and 25A which the person has not yet exercised; and

(b) if the officer considers there are possible grounds under section 25(1) or 25A(7)(b) or (8) (as the case may be) for delaying the exercise of any such right, decide whether or not to delay the exercise of the right.

(8) The custody review officer must make a written record of—

(a) the officer’s decision on whether to authorise the extension; and

(b) any of the following which apply—

(i) the grounds on which the extension is authorised;

(ii) the fact that the detained person and a solicitor have been informed as required by subsection (5);

(iii) the fact that the detained person has been informed as required by subsection (7)(a);

(iv) any decision on the matter referred to in subsection (7)(b) and, if the decision is to delay the exercise of a right, the grounds for the decision.”

Article 6(1)

SCHEDULE 2 Amendments of Part 10 of the Criminal Justice and Public Order Act 1994

1.  In section 137 of the Criminal Justice and Public Order Act 1994(2) (cross-border powers of arrest and detention), in subsection (8)—

(a) in paragraph (b), after “Scotland” insert “, but subject to the modifications in subsections (1A) and (1B) of section 138”;

(b) in paragraph (c), for “subsection (6)” substitute “subsections (6) to (9)”.

2.—(1) Section 138 of that Act (cross-border powers of arrest etc. – supplementary provisions) is amended as follows.

(2) After subsection (1) insert—

“(1A) Where a person is arrested under subsection (2) of the principal section, section 15 of the Criminal Procedure (Scotland) Act 1995(3) (“the 1995 Act”) (right of persons arrested or detained to have intimation sent to another person) applies with the following modifications—

(a) in subsections (1)(a) and (2), omit the reference to “other premises”;

(b) the right under subsection (1)(a) arises when the person is arrested;

(c) the reference in subsection (1)(a) to the place where the person is being held is to be read as a reference to the police station to which the person is to be taken;

(d) subsection (2) is to be read as requiring that the person be informed of the right under subsection (1)(a) on being arrested; and

(e) the rights and duties under subsection (4) arise when the person is arrested.

(1B) Where a person is arrested under subsection (2) of the principal section but not charged in connection with an offence, subsections (2) to (9) of section 15A of the 1995 Act(4) (right of suspects to have access to a solicitor) apply with the following modifications—

(a) omit the references to “other premises or place” in subsections (2) and (6);

(b) the right under subsection (2) arises when the person is arrested;

(c) the reference in subsection (2)(b) to the police station where the person is being detained is to be read as a reference to the police station to which the person is to be taken; and

(d) subsection (6) is to be read as requiring that the person be informed of the rights under section 15A(2) and (3) on being arrested.”

(3) For subsection (2) substitute—

“(2) Where a person is detained under subsection (2) of the principal section, the provisions of the 1995 Act listed in subsection (2A) below apply as they apply to detention under section 14(1) of that Act, but with the modifications mentioned in subsections (6) to (9) below.

(2A) Those provisions are—

(a) section 14(2) to (10)(5) (detention and questioning at police station);

(b) sections 14A and 14B (extension of period of detention under section 14);

(c) section 15(1), (2) and (4) to (6) (right of persons arrested or detained to have intimation sent to another person);

(d) section 15A(2) to (9) (right of suspects to have access to a solicitor);

(e) section 18(6) (prints, samples etc. in criminal investigations).”.

(4) For subsection (6) substitute—

“(6) The modifications of the 1995 Act referred to in subsection (2) above are as follows.

(7) In section 14—

(a) the reference in subsection (2) to detention being terminated not more than 12 hours after it begins is to be read as a reference to its being terminated not more than 12 hours after the person’s arrival at the police station to which the person is taken under subsection (7)(c) or (e) of the principal section;

(b) in subsections (6) and (9), omit the references to “other premises”.

(8) In section 15—

(a) in subsection (1)(b), omit the references to “other premises or place”;

(b) in subsection (2), omit the reference to “other premises”;

(c) where the police station to which the person is to be taken is in Scotland—

(i) the right under subsection (1)(b) arises when the person is detained;

(ii) the reference in subsection (1)(b) to the police station where the person is being detained is to be read as a reference to the police station to which the person is to be taken;

(iii) subsection (2) is to be read as requiring that the person be informed of the right under subsection (1)(b) on being detained; and

(iv) the rights and duties under subsection (4) arise when the person is detained.

(9) In section 15A—

(a) omit the references to “other premises or place” in subsections (2) and (6);

(b) where the police station to which the person is to be taken is in Scotland—

(i) the right under subsection (2) arises when the person is detained;

(ii) the reference in subsection (2)(b) to the police station where the person is being detained is to be read as a reference to the police station to which the person is to be taken; and

(iii) subsection (6) is to be read as requiring that the person be informed of the rights under section 15A(2) and (3) on being detained.”.

(1)

1995 c. 39 (“the 1995 Consolidation Act”).

(2)

1994 c. 33.

(3)

The title of section 15 of the Criminal Procedure (Scotland) Act 1995 (c.46) (“the 1995 Procedure Act”) was amended by the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (asp 15), section 1(3)(c). Subsections 15(1) and (4) were amended by the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (asp 15), section 1(3)(a) and (b). Subsection 15 (6)(b) was amended by the Crime and Punishment (Scotland) Act 1997 (c.48), Schedule 1, paragraph 21(2).

(4)

Section 15A of the 1995 Procedure Act was inserted by the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland Act 2010 (asp 15), section 1(4).

(5)

Subsection 14(2) of the 1995 Procedure Act was amended by the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (asp 15), section 3(1). Subsection 14(6) was amended by the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (asp 15), section 1(2). Subsection 14(9) was amended by the Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10), section 81(6)(a). Subsection 14(10) was inserted by the Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10), section 81(6)(b).

(6)

Subsection 18(2) of the 1995 Procedure Act was amended by the Crime and Punishment (Scotland) Act 1997 (c.48), section 47(1)(a). Subsection 18(3) was amended by the Crime and Disorder Act 1998 (c.37), Schedule 8, paragraph 117(a); the Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10), section 83(1); and the Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), section 77(2)(a). Subsection 18(4) was amended by the Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10), Schedule 6(1), paragraph 4(2). Subsection 18(6)(d) was repealed by the Criminal Justice (Scotland) Act 2003 (asp 7), section 55(2)(a). Subsection 18(6A) was inserted by the Criminal Justice (Scotland) Act 2003 (asp 7), section 55(2)(b). Subsection 18(7) was repealed by the Crime and Punishment (Scotland) Act 1997 (c.48), Schedule 3, paragraph 1. Subsections 18(7A) and (7B) were inserted by the Crime and Punishment (Scotland) Act 1997 (c.48), section 47(1)(d). Subsection 18(8)(c) was amended by the Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), Schedule 7, paragraph 30.