Blackmac wrote: Thu Apr 06, 2023 8:54 am
There are a number of ways in which judicial proceedings are instigated.
Copy complaint- Most common and used for less serious offences. An investigation is carried out and police decide if there is a sufficiency of evidence. The suspect is charged and may or may not have been arrested depending on the circumstances. Police then report to COPFS who decide if the charges are competent and it is in the interest of justice to proceed. If yes, they send a Copy Complaint to the accused, outlining the charges and giving them a date to appear in court at a Sheriff Summary hearing. Once the suspect appears in court, court proceedings are instigated and contempt rules apply.
Indictment - used for more serious offences. And again a suspect may or may not have been arrested, but the likelihood is that the will have either been under investigative and or formal arrest at some time during this investigation. Same process, but this time the suspect is issued with an Indictment and summoned to appear at a higher court, the Sheriff Solemn. Again, once they have appeared, court proceedings are instigated and contempt law applies. The Sheriff Solemn will decide if the case is held there or referred up to the High Court. If it is referred up, the accused will receive a further Indictment indicating so.
Arrest without warrant. This is where people are getting caught up as it is completely different to what has happened to Murrell, which is Investigative arrest.
This usually happens in more spontaneous or serious cases where the police decide that there is a necessity to keep the suspect in custody, usually due to the nature or seriousness of the offence. Police may or may not have arrested the suspect for questioning. If they did need to question him, they would have arrested him for questioning and then moved to formal arrest once sufficiency of evidence was reached. If there was already sufficiency of evidence without questioning, they would have moved straight to formal arrest.
Once formally arrested the accused is held in custody to appear at court the next lawful day where the court is made aware of the charges. The court will either decide to remand the accused or release them pending their court date, usually under bail conditions. This is where contempt laws would apply.
Arrest with warrant. This is when an investigation has been completed and the suspect, for whatever reason has not or cannot be traced. The police report the circumstances to COPFS who apply to the court for an arrest warrant. Once issued the warrant grants police greater powers to trace and arrest an accused. Once arrested the accused will be held in police custody and again brought before a court on the next lawful day where it will be decided how to proceed. Again this is where contempt laws would apply.
Investigative arrest only started in Scotland about 8 years ago, prior to that the investigative process was facilitated by detention under Section 14 of the Criminal Procedure (Scotland) Act 1995. Section 14 procedure was very limited by a number of aspects, crucially that the suspect could only be detained once and for a maximum of 6 hours, which was horrendously limiting. Rather than tweak the existing legislation they scrubbed it and moved to a similar process to E&W where the suspect can either be arrested for questioning or formally arrested. It provides greater time limits for the police and also allows multiple arrests for questioning which as I said is completely different to what the courts recognise as "arrest without warrant".
Apologies for the long reply but I am day off, bored, and as I have spent my whole working life involved in the process, often at a very grave level, so I'm a bit vexed that my knowledge is being questioned.