Griffiths, David Barclay (1992) Confessions, admissions and declarations by persons accused of crime under Scots law : a historic and comparative study. PhD thesis. http://theses.gla.ac.uk/2834/ Copyright and moral rights for this thesis are retained by the author A copy can be downloaded for personal non-commercial research or study, without prior permission or charge This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the Author The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the Author When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given Glasgow Theses Service http://theses.gla.ac.uk/ [email protected] Conf t-- ý sion Admi s-i ari aa rid Declarations by Persons Accuocd of Cr i m(B Und-mr Scot er Law. A hiz. tcarric and compeireitiv study by David Barclsy Griffiths LL. B. V co 1 umi: 1 ce t-- of Doctor of Philosophy Dc pjartmcant of Privstcr Law UnivQrsity of G1ac3gow March 1992 0 David B. Griffiths March 1992 No criminal justice system deserves respect if its wheels are turned by ignorance. (Law Reform Commission of Australia, 1975) 3 Preface and Acknowledgments In 1981 as a comparatively junior depute in the Procurator Fiscal's Office in Glasgow I had the remarkably good fortune to be entrusted with the setting up of a project to introduce the revived judicial examination procedure into Glasgow Sheriff Court. I think my colleagues and I made a reasonable success of our remit and we certainly confounded all the gloomy predictions about judicial examination leading to a total seizing-up of the court timetable and the like. It is regrettable that the judicial examination procedure has not fulfilled the hopes of the Thomson Committee and is in danger of becoming little more than an irrelevant excrescence, but that is a separate issue, On a personal level, this fascinating project gave me a particular interest in the accused's words as evidence in court and the present study is a direct, if rather delayed, result. I am happy to acknowledge the assistance of many people in the preparation of this work. In the University, Mr Iain Dyer of the Department of Private Law has been my supervisor and I am most grateful for his help. I am also grateful to Professor Joe Thomson for his interest. Mrs Liz Wilson the Clerk to the Faculty, also deserves a word of thanks for her assistance. The Library staff both in the Workshop and on the fourth and fifth floors of the University Library have been unvaryingly helpful and a marked contrast to the rather surly junior staff members I 4 had the misfortune to encounter more than once at the Mitchell Library. Outwith the University I would like to thank Assistant Chief Constable William Mc Master, Chief Superintendent Lawrence McIntyre, and Miss Kate Wilson, all of Strathclyde Police, for their help and in particular for arranging for me to have access to the excellent library facilities at the training school in Oxford Street, Glasgow. Miss Wilson's help in obtaining material from the police training colleges at Tulliallan and Bramshill was particularly appreciated. Miss Mary Stocks, the Crown Office Librarian also gave me much valuable assistance as did the staff of the National Library of Scotland, Many present and former colleagues in the Procurator Fiscal Service have contributed (generally unwittingly) but several are due particular thanks. Mr Alexander Jessop (now a Sheriff in Aberdeen) was responsible for starting the whole thing off when he put me in charge of the judicial examination project. In more recent years as Regional Procurator Fiscal in Glasgow he took great interest in the progress of the thesis and gave me much encouragement, Thanks are also due to Mr Roderick Urquhart for the loan of some valuable and rare source material, to Dr Robert Shiels without whose practical advice and help this work would probably never have been started, and would certainly never have been finished, to Mr Bill Gilchrist, Assistant Solicitor in Crown Office for arranging study leave for me and to my current boss, 5 Mr A. Taylor Wilson, Procurator Fiscal in Airdrie, for so willingly allowing me actually to take the time off. I must also thank my wife Ann, who has the good fortune to know virtually nothing about law, for encouraging me, for tolerating my frequent lengthy disappearances from the domestic scene as well as the detritus of academic study littering most horizontal surfaces in the house, the floors not excluded, and for providing the endless supply of tea (and the occasional stronger beverage) which has fuelled the project from inception to completion. Finally I would like to make it clear that the views expressed in this work are my own personal opinions and should not be taken as being in any way representative of the Procurator Fiscal Service. The errors and omissions are likewise entirely my responsibility. I have endeavoured to state the law of Scotland as at 31st December 1991. The laws of other juridictions are considered on the basis of sources available to me on that date. David B. Griffiths Glasgow, March 1992. ( Blank) 7 TABLE OF CONTENTS Volume 1 Acknowledgments ................................................ 3 Table Contents of .............................................. 7 List Cases of .................................................. 15 List Abbreviations of ......................................... 29 Abstract ...................................................... 33 Chapter 1- Background and Theory 1.1 A brief outline of ancient Scottish criminal evidence and 35 procedure ................................................ 1.2 The investigation of crime and the institution of 44 proceedings .............................................. 1.3 The 53 comparative aspect ................................... (i) Scottish and English Lau. 53 (ii) Scottish law Northern Ireland 61 and ................. (iii) Scottish law 63 and continental systems .............. 1.4 Fundamental issues and related problems in the modern law 68 ...................................................... (i) General introduction 68 ..... ......................... (ii) The to 70 right silence .............................. (iii) The fairness test 75 ................................. Supporting (iv) evidence ............................... 82 The the 87 (v) accuracy of record ........................ (vi) Some 92 assumptions and an exclusion ................. Chapter 2- Literature 2.1 Literature on confessions ................................ 97 2.2 Historic Scottish texts ................................. 103 2.3 Scottish texts on evidence and procedure ................ 112 8 2.4 Periodicals, collections and other Scottish sources..... 118 2.5 English literature ...................................... 123 2.6 Northern Ireland Literature ............................. 128 2.7 Literature Comparative Criminal Procedure 132 on ............ Chapter The Right to Silence -3 - 3.1 Introduction ............................................ 139 3.2. The trial 142 stage ......................................... background (i) Statutory ............................. 142 (ii) Factors which weigh against the right to silence. 143 (a) Pressure to testify ......................... 143 (b) Statutory provision ......................... 145 by the (c) Comment prosecutor ................... 146 Judicial 153 (d) comment- ......................... (e) Comment by co-accused ....................... 159 3.3 Pre-trial judicial 161 proceedings .......................... (i) Scotland "old judicial 161 - style" examination ...... (ii) Scotland the 1980 Act 174 - procedures .............. England 191 (iii) .......................................... 3.4 The Police 195 .............................................. Scotland 195 (i) ......................................... (a) Introduction ................................ 195 (b) Development of the police caution in the 196 nineteenth century .......................... The twentieth 200 (c) century ....................... (d) The caution in relation to admissibilty.,.,. 203 (e) The 211 evidential effect of silence ............ (ii) England 213 .......................................... (a) Introduction history 213 and early .............. (b) The Judges Rules and Administrative Directions 215 .................................. (c) The Police and Criminal Evidence Act 1984.,. 220 (d) The 224 evidential effect of silence ............ (iii) Does the reality of police interrogation respect the 226 suspect's right to silence? .................. 3.5 Investigators than 232 other the police ..................... (i) Where there is a special statutory power to require information 232 ...................................... (ii) Where there is no special statutory power........ 234 9 3.6 to 238 The debate on the right silence ...................... (i) Should the accused be permitted to give 238 evidence? ........................................ (ii) Should the accused suffer adverse consequences if he refuses to answer police questions or testify his trial? 247 at .................................... 247 (a) Introduction ................................ (b) Arguments in favour of the right to silence. 248 (c) Arguments against the right to silence...... 257 for 263 3,7 Proposals reform .................................... Scotland 263 <i) ........................................