National Preventive Mechanism Second Annual Report 2010–11
custody visiting in Scotland is not a statutory
requirement.25 Instead, it is up to each
police board to decide for itself whether to
establish and maintain a custody visiting
scheme in their area. In a best-value audit
and inspection of Grampian Police and
Grampian Joint Police Board, published in
February 2011, HMICS noted that Grampian
was the only area in the UK not to have
an operational custody visiting scheme.
Acknowledging the vital role that custody
visitors play in raising standards in custody
and ensuring the fair treatment of detainees,
HMICS recommended that Grampian
implement a custody visiting scheme as a
matter of priority. A custody visiting scheme
has since been established.
In 2010–11, independent custody visitors
regularly monitored the treatment of and
conditions for detainees, reporting concerns
to the police board. A key issue of concern
to custody visitors is the length of time
that detainees may be held. In exceptional
circumstances – where there are public
holidays on a Friday and the following
Monday – it is possible that detainees may
be held in police custody from Friday until
Tuesday. Police custodial facilities are not
generally appropriate for detention of this
duration. As a result of concerns raised,
consideration is now being given to opening
courts at weekends, to reduce the length of
time that detainees spend in custody.
At a strategic level, custody visitors have
been considering the potential impact of
proposals to reform policing across Scotland.
The Scottish government recently announced
its intention to replace the eight police forces
with a single Scottish force. As custody
visiting schemes are currently organised
according to police force areas, any reforms
will have an impact on them. However,
reform also offers an opportunity for the
Scottish government to consider all aspects
of policing, including police custody, and
to place independent custody visiting on a
statutory footing.
Another important national development
of interest to HMICS and the independent
custody visitors, as well as the Scottish
Human Rights Commission, was the ruling
in Cadder v Her Majesty’s Advocate and its
impact on detainees in police custody. In this
case, the Supreme Court held that the law
in Scotland which allowed suspects to be
detained and questioned by police for up to
six hours without access to legal advice was
incompatible with Article 6 of the European
Convention on Human Rights (right to a fair
trial).26 In response to this ruling, the Criminal
Procedure (Legal Assistance, Detention and
Appeals) Scotland Act 2010 was introduced.
The 2010 Act grants suspects a statutory
right to legal advice while being questioned
by police but also extends the six-hour
period during which a suspect may be
detained for questioning.
While welcoming this legislative recognition
of a suspect’s right to have effective legal
assistance, the Scottish Human Rights
Commission has nonetheless expressed
concern that the 2010 Act has extended the
period for which a suspect may be detained
without charge from six to 12 hours and, in
some cases, to 24 hours. The Commission
was also concerned at the emergency
nature of the legislation; the 2010 Act was
introduced to the Scottish Parliament and
25 Although not statutory, custody visiting is supported by the Scottish government, both financially and through published
guidance.
26 Cadder (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) [2010] UKSC 43.
28
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