Andy Coulson, former “spin doctor” to Prime Minister David Cameron, and former Editor of the News of the World has been detained by officers from Strathclyde Police investigation allegations arising from evidence given at the trial of Tommy Sheridan in 2010 at Glasgow High Court.
Mr Coulson has not been arrested, despite reports stating that he has been.
What is “detention”?
Under Section 14 of the Criminal Procedure (Scotland) Act 1995, which was amended by the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010, police in Scotland have the opower to detain a suspect for questioning.
The 1995 Act states at Section 14 (1) that:-
“Where a constable has reasonable grounds for suspecting that a person has committed or is committing an offence punishable by imprisonment, the constable may, for the purpose of facilitating the carrying out of investigations—
(a) into the offence; and
(b) as to whether criminal proceedings should be instigated against the person,
detain that person and take him as quickly as is reasonably practicable to a police station or other premises and may thereafter for that purpose take him to any other place and, subject to the following provisions of this section, the detention may continue at the police station or, as the case may be, the other premises or place.” (Emphases added).
The power is therefore open to a constable (which includes higher-ranking officers too) to detain a suspect where the offence being investigated is one punishable by imprisonment.
How Long Does Detention Last?
Section 14 (2) states:-
“Subject to section 14A, detention under subsection (1) above shall be terminated not more than 12 hours after it begins or (if earlier)—
(a) when the person is arrested;
(b) when he is detained in pursuance of any other enactment; or
(c) where there are no longer such grounds as are mentioned in the said subsection (1),
and when a person has been detained under subsection (1) above, he shall be informed immediately upon the termination of his detention in accordance with this subsection that his detention has been terminated.”
So Mr Coulson and indeed any suspect can be detained by police for up to twelve hours. It was formerly six hours during which the suspect cold be questioned but had no right to a lawyer being present or to advice from a lawyer prior to questioning. The “Cadder” case saw an end to that and, to ensure that legal advice could always be obtained, the Scottish Government sought successfully to extend the period of detention to 12 hours.
Detention MUST end, subject to Section 14A referred to below, after 12 hours, or when the suspect is arrested, detained under another piece of legislation, or where he need no longer needs detained for purposes of facilitating the investigation.
Subsections 9 and 10 detail the only information the suspect is required to provide.
“(9)A person detained under subsection (1) above shall be under no obligation to answer any question other than to give the information mentioned in subsection (10) below , and a constable shall so inform him both on so detaining him and on arrival at the police station or other premises.
(10)That information is—
(a) the person’s name;
(b) the person’s address;
(c) the person’s date of birth;
(d) the person’s place of birth (in such detail as a constable considers necessary or expedient for the purpose of establishing the person’s identity); and
(e) the person’s nationality.
Can Detention be Extended?
An innovation of the 2010 Act was that the period of detention could be extended. This is covered in Section 14A of the 1995 Act.
“(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.
(7)In this section and section 14B, “custody review officer” means a constable—
(a) of the rank of inspector or above, and
(b) who has not been involved in the investigation in connection with which the person is detained.”
Therefore, where it is considered necessary by an officer of the rank of Inspector or above, and who has not been involved in the investigation regarding the suspect, to detain further than the original 12 hours, he can so order if continued detention is necessary to secure, obtain or preserve evidence AND the offence is indictable (IE can be tried before a jury in solemn proceedings) AND the investigation must be being conducted diligently and expeditiously.
Before arriving at a decision to extend detention, the custody review officer is obliged to hear representations from the suspect or his solicitor, in terms of Section 14B (2).
Can a Detained Person Have Legal Advice?
Previously there was no right to legal advice during detention. Now the right to a private consultation with a solicitor, which may be carried out by telephone, is contained in Section 15A (3) and the suspect has this right prior to any questioning and at any other time during such questioning.
Bearing in mind that one of the purposes of detention is to use the time to see if the person detained should be subject to criminal proceedings, this might be a step which results in Mr Coulson being released without charge. Alternatively he can be arrested and charged. As he was detained in England and is being taken to Scotland for questioning, much of the initial twelve hours will be taken up with his travelling. Therefore it would not be a surprise of his detention was extended. This should not be taken as indicative of anything negative towards Mr Coulson. The police quite legitimately are entitled to maximise use of the detention period, as long as they are carrying out the investigation diligently and expeditiously.
Unlike in England, where after arrest “police bail” is often granted and the suspect released to return to the police station on another date, there is only one shot at detention. Therefore, the outcome would either be that Mr Coulson is released without charge, or he will be charged. If charged, he would either be held in custody to appear at court on the next suitable court date, or released to appear at court on a later date. If arrested and held in custody, his appearance at court would be in private before a Sheriff.
Under the old procedures, where a custody court did not sit on Saturdays or public holidays, if Mr Coulson was to be arrested and held for custody after midnight tonight, he would have remained in custody until Wednesday next week (as Monday and Tuesday are holidays). However I expect Glasgow Sheriff Court will have a custody court on Saturday, should it be decided that there is a sufficiency of evidence to arrest and charge Mr Coulson and hold him in custody for court.
Mr Coulson has previously denied any offence on connection with the matter under investigation and remains an innocent man.
Posted by Paul McConville