Detention Short of Arrest for Questioning - The United States, England, and Scotland

• NCJ Number: 103368
• Journal: International Journal of Comparative and Applied Criminal Justice Volume: 10 Issue: 1 Dated: (Spring 1986) Pages: 57-72
• Author(s): F E Devine
• Date Published: 1986
• Length: 16 pages
• Publication Format: Article
• Publication Type: Legislation/Policy Description
• Language: English
• Country: United States of America
• Note: *This document is currently unavailable from NCJRS.

Annotation

This article addresses the issue of detention short of arrest for purposes of questioning by a comparison of the law in the United States, England, and Scotland.

Abstract

It finds the response of these three countries, who have relatively similar values, to be significantly different. On the level of applied law, the United States is the most restrictive; England is the least restrictive in spite of the letter of its law; and Scotland falls in between by permitting yet limiting this practice. The United States consistently excludes statements resulting from detentions not justified by probable cause whether or not they purport to be arrests and whether or not they take the format of a normal custodial arrest. One limited but significant exception can be identified. This regards brief on-the-scene detention justified by reasonable suspicion with questioning limited in scope to identify and explain the facts creating the suspicion. English law forbids even this. However, ambiguity about the boundary between voluntary assistance to the police and involuntary detention combined with a practice of excluding statements only if they are involuntary or the results of carefully defined unfairness allow many statements obtained during questionable detention to be admitted. A pending statute may limit this somewhat. Statutory exception permitting detention for questioning in some cases also exist. Scotland consciously rejected both the structure of the American prohibition and the permissive practice of England in a recent statute. Here, six hours of detention without arrest for questioning is permitted. This is carefully circumscribed by rights, warnings and record keeping requirements established by the same statute. The diversity of approach discovered by this study can provide background for American deliberations about the exclusionary rule. (Publisher abstract)