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Lucy Adams Chief Reporter
The High Court judge said his 76 different recommendations would bring Scotland in line with 21st Century human rights legislation and practice.
He said he believed his proposals will “re-cast” criminal law and practice and return the legal system to the “high ground of global legal practice”.
But legal experts and members of the judiciary have warned against some of the main proposals -- in particular the proposed removal of corroboration, which is backed by women’s groups and Victim Support.
Other key recommendations include a proposal the current situation in which a suspect can be detained and questioned for up to six hours before being arrested should be removed.
The only general power to take a suspect into custody should be the power of arrest, the report said.
Laws should be amended so police have a duty to ensure arrested people are not detained in custody unnecessarily.
There should be a requirement a person cannot be kept in police custody for more than 12 hours without being charged or advised they are to be reported to the procurator-fiscal.
There should further be a need for police to review any period of detention before charge around six hours after detention.
The period of time during which suspects are kept in custody should be kept under review, Lord Carloway said. If it transpires that suspects are being kept in custody without a court appearance for more than 36 hours from the time of their arrest, measures such as Saturday courts should be introduced.
Lord Carloway said: “The report recognises that it is not starting from a blank sheet of paper. It has not set out to create Utopia. It cannot (nor would it wish to) effect total reconstruction, riding roughshod over sound existing traditions.”
The Sheriffs’ Association submission states that it would be detrimental to deal with such issues in the tight timescale available.
It states: “The consultation document raises fundamental questions about pre-trial procedure and evidence... [the consultation] fails to appreciate the myriad consequences and effects that the abolition of corroboration will have on the investigation and prosecution of crime as a whole.”
Maggie Scott, QC, chair of JUSTICE Scotland, warned that the removal of corroboration would risk “justice being undone”.
She said: “We are dismayed by the suggested wholesale removal of corroboration absent alternative safeguards to ensure evidence which ought not to be before a jury is excluded.”
Susan Gallagher, deputy chief executive of Victim Support Scotland, said: “The recommendation to eliminate corroboration in Scotland is particularly welcome as long as any test applied ensures that it does actually lead to better quality of evidence.”
A spokeswoman for Scottish Women’s Aid said of the corroboration requirement: “We are interested to see how the COPFS would deal with the likely increased volume of ‘single evidence’ cases reported to them. We also hope that this will not lead to a situation where only ‘sure win’ cases, where complainers have the most robust testimony, would have their cases taken to trial.”
She added that police powers of ‘investigative liberation’ should not be applied in domestic abuse case, as custody would be in the best interests of women and children involved.
The Scottish Government said it will be looking for an early opportunity to enact legislation, but it is unlikely to come before Holyrood in 2012-13.
Justice Secretary Kenny MacAskill added: “It gives us considered advice on how we ensure our justice system continues to cope with unprecedented pressures and offers long-lasting solutions to some of the challenges we face.”
Labour’s justice spokeswoman, Johann Lamont, said: “It cannot be right that over 95% of rape cases reported to police in Scotland fail to lead to a prosecution.”
