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

JurisdictionScotland
Citation2010 asp 15


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

2010 ASP 15

The Bill for this Act of the Scottish Parliament was passed by the Parliament on 27th October 2010 and received Royal Assent on 29th October 2010

An Act of the Scottish Parliament to make provision for persons being questioned by the police on suspicion of having committed an offence to have a right of access to legal assistance; to enable provision to be made for criminal advice and assistance under the Legal Aid (Scotland) Act 1986 to be available for such persons in certain circumstances without reference to financial limits; to extend the period during which a person may be detained under section 14 of the Criminal Procedure (Scotland) Act 1995, and to enable that period to be further extended in certain circumstances; to provide for a right to make representations in relation to applications for extension of time limits for bringing appeals; to provide a time limit for lodging bills of suspension or advocation; to make provision about the grounds for references made to the High Court by the Scottish Criminal Cases Review Commission and to confer power on the High Court to reject such references in certain circumstances; and for connected purposes.

Legal assistance

Legal assistance

S-1 Right of suspects to have access to a solicitor

1 Right of suspects to have access to a solicitor

(1) The 1995 Act is amended as follows.

(2) In section 14 (detention and questioning at police station), in subsection (6)—

(a) in paragraph (e), for “subsection (1)(b) of section 15” substitute “sections 15(1)(b) and 15A(2) and (3)”, and

(b) in paragraph (f), after “15(1)(b)” insert “or 15A(2)”.

(3) In section 15 (rights of person arrested or detained)—

(a) in subsection (1)—

(i) for “section 17” substitute “sections 15A and 17”, and

(ii) in paragraph (b), the words “solicitor and to one other” are repealed,

(b) in subsection (4), for “section 17” substitute “sections 15A and 17”, and

(c) the title of the section becomes “Right of persons arrested or detained to have intimation sent to another person”.

(4) After section 15, insert—

“15A Right of suspects to have access to a solicitor

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

(a) is detained under section 14 of this Act,

(b) attends voluntarily at a police station or other premises or place for the purpose of being questioned by a constable on suspicion of having committed an offence, or

(c)is—

(i) arrested (but not charged) in connection with an offence, and

(ii) being detained at a police station or other premises or place for the purpose of being questioned by a constable 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—

(i) detention,

(ii) attendance at the police station or other premises or place, or

(iii) arrest,

(as the case may be),

(b) the police station or other premises or place where 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 the right to have a private consultation with a solicitor—

(a) before any questioning of the suspect by a constable 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 includes, 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 police station or other premises or place, and

(b) in the case where the suspect is detained as mentioned in subsection (1)(a), or arrested as mentioned in subsection (1)(c), after such arrival, on detention or arrest (whether or not, in either case, the suspect has previously been informed of the rights by virtue of this subsection).

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

(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, a constable may delay the suspect’s exercise of the right under subsection (3) 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 a constable begins or continues without the suspect having had a private consultation with a solicitor.

(9) Subsection (3) does not apply in relation to the questioning of the suspect by a constable for the purpose of obtaining the information mentioned in section 14(10) of this Act.”.

S-2 Criminal advice and assistance: automatic availability in certain circumstances

2 Criminal advice and assistance: automatic availability in certain circumstances

(1) The Legal Aid (Scotland) Act 1986 (c.47) is amended as follows.

(2) In section 8 (availability of advice and assistance), after “to” in the first place where it occurs insert “any provision made in regulations under section 8A(1) and”.

(3) After section 8, insert—

“8A Criminal advice and assistance: automatic availability in certain circumstances

(1) The Scottish Ministers may by regulations provide that, in such circumstances as may be prescribed in the regulations, advice and assistance in relation to criminal matters is to be available for any relevant client without reference to the financial limits in section 8.

(2) In subsection (1), “relevant client” means a client who is a person to whom section 15A of the Criminal Procedure (Scotland) Act 1995 (right of suspects to have access to a solicitor) applies.”.

(4) In section 37(2) (parliamentary procedure), after “7,” insert “8A(1),”.

Detention

Detention

S-3 Extension of period of detention under section 14 of 1995 Act

3 Extension of period of detention under section 14 of 1995 Act

(1) In section 14 of the 1995 Act (detention and questioning at police station)—

(a) in subsection (2), for “Detention”, where it first occurs, substitute “Subject to section 14A, detention”, and

(b) in each of subsections (2), (4) and (5), for “six” substitute “12”.

(2) After section 14 of the 1995 Act, insert—

“14A Extension of period of detention under section 14

(1) This section applies in relation to a person who is being detained under section 14 of this Act (“the detained person”).

(2) Before the expiry of the period of 12 hours mentioned in section 14(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) an 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 subsection (4) or (5) of section 14 applies in relation to the detained person, the references in subsection (2) of this section to the period of 12 hours mentioned in section 14(2) are to be read as references to that period as reduced in accordance with subsection (4) or, as the case may be, (5) of section 14.

(6) Where a custody review officer authorises the extension under subsection (2), section 14 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 14B,...

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