Lord Carloway launched a public consultation on dramatic reforms designed to hammer the country’s unique and centuries-old legal system into line with the European Convention of Human Rights.
The High Court judge questioned some of the cornerstones of traditional Scottish justice, including:
the requirement of corroboration for prosecutions;
the right of suspects to remain silent without any negative inference being drawn;
the way Scots police rarely place sus- pects “under arrest”, as they do in England or America, but simply “detain them”;
the current police understanding of how a citizen becomes a suspect -- and what his or her rights are when they do.
Lord Carloway was brought in to fix Scots law after the UK Supreme Court, citing European human rights, forced the Scottish Government to introduce emergency legislation to give all suspects in police custody the right to consult a lawyer.
The London-based court, to the fury of Nationalist politicians and many in Scotland’s legal establishment, had ruled Glasgow teenager Peter Cadder could appeal his conviction for relatively minor offences because he had not been allowed access to legal advice when questioned in custody.
Lord Carloway was asked by Justice Secretary Kenny MacAskill to review law and practice over detention and questioning -- although not the constitutional issues raised by the UK court decision.
He made it clear yesterday his review would delve into far darker corners of Scots law than last year’s emergency legislation and effectively come up with ways of protecting Scottish justice from the EU.
Lord Carloway said: “I am keen this review should be more than an attempt merely to adjust or tweak any perceived flaws in the legislation.
“It should be an opportunity to re-examine the core principles underlying the procedures of detention, police questioning, charge and arrest, and the implication for concepts such as corroboration and the inference from silence. The review will explore a whole range of options and ideas, some of which will be quite radical.”
Lawyers, police officers, legislators and other groups have their chance to try to answer some 34 questions posed by Lord Carloway in a 100-page consultation.
His recommendations will be published in the autumn, just as a whole new series of human rights challenges to Scots law go to the UK Supreme Court.
The Cadder judgment has already forced historic changes on the Scottish justice service. Prior to it, police rarely allowed suspects to contact a lawyer, but research by the Association of Chief Police Officers Scotland has found around one in four now does so.
Lord Carloway is asking what kind of contact suspects should be allowed with a lawyer, in person or by phone, and whether they should have access to their own lawyer, an on-call legal aid solicitor or public defender.
Lord Carloway conceded if his recommendations were accepted, it may force the next Scottish Government to tear up emergency legislation passed .
It could also affect the future of the Scottish Criminal Case Review Commission, which currently can refer possible miscarriages of justice back to the appeal court.
Last year’s legislation gave the Appeal Court the ability to refuse such a referral if. Lord Carloway wants to know if that new power should stay.