Written for the lecture brochure of 1995, this article was published at a time when the Scottish system was under review by the Sutherland Committee after some notorious cases of miscarriage of justice -primarily the Beattie case.:
It is frequently said that 'fairness to the accused' is a fundamental part of the Scottish criminal justice system and this 'principle' is regularly reaffirmed in a number of contexts. In Miln v Cullen, however, Lord Wheatley added an important gloss on this principle. According to his Lordship,
'While the law of Scotland has always very properly regarded fairness to an accused person as being an integral part of the administration of justice, fairness is not a unilateral consideration. Fairness to the public is also a legitimate consideration ...'
According to this view, one of the functions of the court in the criminal process is to seek to provide a proper 'balance', 'to secure that the rights of individuals are properly preserved, while not hamstringing the police in their investigation of crime with a series of academic vetoes which ignore the realities and practicalities of the situation and discount completely the public interest.' These words may be regarded as setting both the theme and the tone of Scottish criminal justice for the last thirty years.
On the one hand, Lord Wheatley sets out what has come to be the received wisdom, namely, that there is in some sense a 'balance' to be drawn between the interests of the accused on the one hand, and the 'public interest' on the other. This is, of course, a false dichotomy. As other systems have recognised, the interests of the accused and the public interest are not necessarily opposed. In any civilised system of criminal justice there is a public interest in ensuring that the rights of the accused are properly safeguarded. Nevertheless, the notion that the interests of the accused are to be balanced against a 'public interest' (which apparently does not include them) has become a central theme of Scottish criminal justice.
On the other hand, Lord Wheatley's words have also set the 'tone' of much of the discussion of the criminal process: the process of detection and prosecution is difficult enough without the incorporation into the system of rules which make it harder for the prosecuting authorities to carry out their functions. The implication of course is that such 'academic vetoes' should be ignored in the wider public interest.
The risk of miscarriages of justice cannot be eradicated from any system of criminal procedure, but that risk is aggravated in an adversarial system such as ours if that system does not maintain an effective balance between the need to convict the guilty, and the need to secure the protection of the rights of suspects or accused persons, whether guilty or innocent. It seems to me that Scottish criminal justice has, increasingly come to lack balance, and increasingly to favour what was identified by Lord Wheatley as the public interest. This can be seen in a variety of ways, at various stages of the criminal process. It is obviously not possible in the space available to detail all of these, but the following are what might be regarded as the more serious examples of an imbalance in the system, an imbalance which is likely to increase the risk miscarriages of justice.
PRE-TRIAL ACCESS TO LEGAL ADVICE
Experience in other jurisdictions has shown that a crucial safeguard for the accused and, indeed, for the integrity of the criminal process as a whole, is early access to effective independent legal advice. In many systems an attempt is made to secure this by granting to a person arrested or detained by the police the right to immediate access to his lawyer, and to the presence of the lawyer during any questioning of the suspect by the police. By comparison with systems such as that established for England and Wales by the Police and Criminal Evidence Act 1984, and the Codes of Practice issued under that Act, the suspect in Scotland fares very badly indeed.
Section 19(1) of the Criminal Procedure (Scotland) Act 1975 provides that any person arrested on any criminal charge, is entitled, immediately upon arrest, to inform a solicitor that his professional assistance is required. Under section 19(3) of the Criminal Procedure (Scotland) Act 1975 the solicitor has the right to a private interview with his client before he appears before the court for examination (which must normally take place the following day). He also has the right to be present at such examination. The arrested person must be told of the rights under section 19(1) and 19(3).
Under section 3(1)(a) of the 1980 Act a person who has been arrested and who is in custody is entitled to notify a person 'reasonably named' by him that he is in custody and to notify him of the place where he is being held. Such intimation must be made 'without delay', unless 'some delay is necessary in the interest of the investigation or the prevention of crime or the apprehension of offenders' in which case such intimation may be delayed, although for no longer than is 'necessary'. This right is additional to, and is not intended to replace, the right of access to legal advice.
The above rights apply where the suspect has been arrested. The 1980 Act introduced new statutory powers of detention for the purpose of investigation. Section 2 of the 1980 Act gives a constable the power to detain a person at a police station for not more than six hours for the purpose of facilitating the carrying out of investigations. A person detained under section 2 is entitled to notify his solicitor and one other person reasonably named by him of the fact that he has been detained and of the place where he is being detained.
It is important to note, however, that while the fact of arrest must be immediately intimated to the solicitor, access is only guaranteed prior to appearance before the court. It follows that neither the suspect, nor the solicitor, has the right to demand the presence of the solicitor while the suspect is being questioned by the police. Similarly, where the suspect has been detained under the 1980 Act, there is no guarantee of immediate access to legal advice and, indeed, a person may be detained for questioning for up to six hours, and subsequently released, without ever having had access to legal advice.
The weakness of Scots law in relation to early access to legal advice is aggravated by the nature of the rules regarding the admissibility of confessions which are challenged as having been unfairly obtained. For a period of about ten years, spanning the mid-1950's to the mid-1960's Scots law operated a relatively strict exclusionary rule in relation to the products of police questioning. The well-known case of Chalmers v H M Advocate was generally construed as holding that once suspicion focused on a particular individual it was no longer appropriate for the police to question him, and that any statements taken from such a suspect would only be admissible if they were voluntary, and had been taken under caution. Whether this was strictly a correct interpretation of Chalmers has often been doubted, and the case of Miln v Cullen mentioned earlier marks a clear departure from the Chalmers approach (which linked admissibility of confessions to the stage of the investigation at which they were taken) in favour of a much more general test of 'fairness'. It is certainly no longer the rule that a statement made by a suspect will not be admissible because it was obtained in response to questions put to a person upon whom suspicion had clearly focused. Indeed, what was formerly believed to be an absolute rule against the questioning of persons by the police once they had been charged may today have been replaced by the general 'fairness' test. According to this approach, the question always is 'Was what happened fair?', bearing in mind the dual aspect of the fairness test as set out by Lord Wheatley.
This might not, in itself, be objectionable, but it is important to notice that what has happened in Scots law is not simply a change in the rule by which the admissibility of a statement made to the police is to be determined, but also the standard adopted by the Courts for the application of the test. This is very clearly seen in the authoritative re-statement of the law as set out in Lord Advocate' Reference (No 1 of 1983) in which it was stated that,
'a judge who has heard all the undisputed evidence bearing upon the admissibility of answers by a suspect, under caution, to police questioning, will normally only be satisfied in withholding the evidence of the alleged answers from the jury if he is satisfied that no reasonable jury could hold, upon that evidence, that the answers had not been extracted by unfair or improper means.'
In other words, a statement made by a suspect (who may have had no access to legal advice before making the statement, and who will not have had his lawyer present during interrogation) will be allowed to go to the jury unless the judge rules that no reasonable jury could conclude that what occurred was fair. What this means in practice, then, is that only in very exceptional cases will the confession be withheld from the jury on the ground that it was unfairly obtained. (It should also be noted that, in practice, the mechanism of the 'trial-within-in-a-trial' has virtually disappeared from Scots procedure, it having been viewed with a certain degree of judicial hostility.)
DILUTION OF CORROBORATION RULES
It is, of course, frequently asserted that the problems associated with confession evidence are less serious in Scots law than in other systems, such as English law, because of the general requirement of corroboration. There is no doubt that Scots law does not permit the conviction of an accused person on the basis of an uncorroborated confession to which the accused does not adhere by way of a plea of guilty. But the value of the corroboration requirement depends entirely upon the quality of the evidence that is accepted as constituting corroboration, and there are clear examples which show that the corroboration requirement today does not present a particularly strong safeguard against conviction on the basis of suspect confessions. This is particularly the case in relation to so-called 'special knowledge' confessions - confessions which are, so to speak, self-corroborating. The theory here appears to be that if facts or circumstances referred to by the accused in an alleged confession are found to be true, then establishing the truth of these facts may corroborate the confession, provided the only reasonable explanation for the accused's knowledge of these facts is that he was the perpetrator. The theory itself is suspect, but its operation depends, first of all on there being no doubt that the confession itself is genuine. If there are doubts about the reliability of the confession, then no corroborative value should be attached to anything mentioned in the confession. Secondly, it is a rule that should be confined to cases where the confession reveals to the police matters which are not already known to them, which can then be investigated by the police to ascertain their truth. However, in both respects Scots law appears to have weakened the requirements of this method of corroboration. Thus 'special knowledge' has been relied upon in cases in which there is already doubt about the reliability of the confession, and in cases where the so called 'special knowledge' may already have been known to the police.
THE DOCTRINE OF URGENCY AND THE ADMISSIBILITY OF EVIDENCE.
One final example may be given of the extent to which the powers of the police and Crown authorities in the investigation of crime have been favoured by judicial opinion. In a number of cases the High Court has upheld the admission into evidence of material which has been obtained in circumstances which are either unlawful (in the sense that there was not warrant and no common law or statutory power of search) on the ground of urgency. In Hay v H M Advocatea warrant was granted to take dental impressions from a suspect in a murder case in order to compare those impressions with teeth marks found on the body of the deceased. On appeal against conviction this procedure was challenged by the accused. The High Court, however, held that it was permissible to grant a warrant in such circumstances, and, in any event, even if it had not been lawful to do so, the search would have been justified on the ground of urgency. Similar reasoning has been applied to the search of premises and the person of suspects, and in Cairnes v Keane the doctrine was invoked in order to justify 'hot pursuit' by two police officers who followed a driver, whom they suspected of having excess blood alcohol, entered his house without permission and there required him to provide sample of breath.
Scottish criminal procedure contains a number of rules which impose upon the accused an obligation to disclose elements of his case. Thus the defence is under an obligation to give the prosecution advance warning of the so-called 'special defences' of alibi, insanity at the time of the offence, incrimination of a third person and self-defence. Nor may the accused examine any witnesses or lodge any productions not included in the lists lodged by the prosecutor, unless written notice of the names and addresses of such witnesses, and any productions which the accused wishes to lodge, have been provided to the prosecution.
These are quite extensive disclosure requirements, and are certainly more extensive than those imposed upon the accused in English procedure. By contrast, the Crown, while it is required to attach to the indictment served upon the accused a list of the witnesses the Crown proposes to lead at the trial, along with a list of the Crown productions (which the accused is entitled to examine before the trial), there is no further obligation of disclosure on the part of the Crown. As the High Court pointed out in the case of Slater v H M Advocate,
'An accused person has no right to demand that the prosecution should - in addition to supplying him with the names and addresses of all the witnesses who may be called - communicate to him all the results, material or immaterial, of the investigation made by the procurator-fiscal under direction of the Crown Office.'
While the Court went on to point out that it would be a serious breach of the traditions of the Crown Office and the prosecution service for the prosecutor to prosecute a case 'in the knowledge of the existence of reliable evidence proving the innocence of the person accused which it concealed from him', nevertheless it is clear that there is no legal obligation to disclose, the breach of which would render a conviction obtained in such circumstances open to challenge. In the much more recent case of Higgins v H M Advocate two accused, who had been convicted on charges of assault which were alleged to have been committed in a public house appealed against their conviction on the ground that the Crown had not supplied them with a list of all of the persons known to the Crown to have been present at the scene. The argument that the Crown were under an obligation to make such disclosure was firmly rejected by Lord Cowie who described this ground of appeal as 'wholly without foundation, not to say impertinent'. His Lordship went on to say, on behalf of the Court, that 'there is no obligation on the Crown to disclose any information in their possession which would tend to exculpate the accused.' To be fair, the Crown, in the subsequent case of H M Advocate v Ward expressly dissociated itself from this statement, but it is nevertheless true that access by the accused to information acquired by the Crown as part of its investigation of the case, and which might be of value to the accused in the preparation of hers, is granted as a matter of professional obligation, rather than legal obligation in Scotland.
As we have already noted, whether or not to initiate criminal proceedings is a matter for the discretion of the public prosecutor. The manner in which that discretion is to be exercised is not subject to published guidelines, as it is in England and Wales, with the result that there has been no development of the notion of judicial review of prosecutorial discretion along the lines that are developing south of the border.
The public prosecutor's discretion is not, however, entirely, unfettered. It is subject to the over-riding power of the court to refuse to allow a prosecution to proceed if it considers it to be oppressive, as, for example, where the prosecution is 'stale' or has been affected by pre-trial publicity. In practice, however, outside the area of stale prosecution the courts have shown themselves most reluctant to intervene to bring a prosecution to an end on the ground that it is 'oppressive'. A particularly striking example of this is to be found in the quite remarkable case of Boyle, Petitioner. In that case the accused went to trial on an indictment which included a charge of murder. He was acquitted on that charge, but convicted of culpable homicide. He appealed against that conviction on the ground that there had been a misdirection by the trial judge. His appeal was successful, but the Court granted authority for a new trial. He was then re-indicted in terms which reproduced the original indictment, including the charge of murder of which he had already been acquitted. The High Court held that it was competent for the Crown to re-indict on this charge, and that they had no power to interfere with this aspect of the Lord Advocate's discretion. Fortunately, that decision, in so far as it relates to the particular question of re-trial on a charge of which the accused has been acquitted has now been reversed by statute. It is, however, a striking example of the relative weakness of judicial control of the prosecutor in our system.
THE NON-APPLICATION OF INTERNATIONAL STANDARDS
To an even greater extent than their English counterparts, the Scottish criminal courts have been unwilling to entertain arguments based upon the United Kingdom's international human rights obligations. The Convention cannot be invoked before the Scottish courts as conferring enforceable rights at the domestic level. Unlike the English courts, which have taken the view that the terms of the Convention may be relied upon as an aid to the interpretation of legislation (and even the development of the common law) reliance on the Convention is not permitted in the Scottish courts.
In Surjit Kaur v Lord Advocate it was held that the Convention, not being part of the domestic law of Scotland, could not be invoked, even as an aid to the construction of a United Kingdom statute. Indeed, it was suggested in Montes and Others v HM Advocate that it was not even competent for the court to consider, within the context of a criminal appeal, decisions of the European Court of Human Rights on the interpretation of the Convention. Not surprisingly, the International Covenant of Civil and Political Rights has even less impact in Scotland than the European Convention on Human Rights.
As in England and Wales, the issue of miscarriages of justice has been brought to the centre of the debates surrounding our system of criminal justice. It must be observed, however, that there is a risk that in concentrating on possible remedies for miscarriages, the possible causes of such miscarriages may be overlooked. The question which must now be asked is whether attention must now be turned to redressing the 'balance' in Scottish criminal justice.
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