Griffiths, David Barclay (1992) Confessions, admissions and declarations by persons accused of ...

513 Pages·2011·18.25 MB·English

Griffiths, David Barclay (1992) Confessions, admissions and
declarations by persons accused of crime under Scots law : a historic and
comparative study.
PhD thesis.

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Conf Admi
t-- ý sion s-i ari aa rid
Declarations by Persons Accuocd
Cr i Und-mr Scot Law.
of m(B er
A hiz. tcarric
and compeireitiv study
by
David Barclsy Griffiths LL. B.
V 1 1
co umi:
Doctor Philosophy
of
ce of
t--
Dc Privstcr Law
pjartmcant of
UnivQrsity G1ac3gow
of
March 1992
0 David B. Griffiths March 1992
No criminal justice system deserves respect if its
turned by ignorance.
wheels are
(Law Reform Commission Australia, 1975)
of
3
Preface Acknowledgments
and
In 1981 junior depute in the Procurator
as a comparatively
Fiscal's Office in Glasgow I had the fortune to
remarkably good
be the to introduce the
entrusted with setting up of a project
judicial into Glasgow Sheriff
examination procedure
revived
Court. I think I
my colleagues and made a reasonable success of
the
our remit and we certainly confounded all gloomy predictions
judicial leading to a total seizing-up of the
about examination
timetable the like. It is that the
regrettable
court and
judicial has fulfilled the hopes the
examination procedure not of
Thomson Committee is in danger becoming little than
and of more
irrelevant but that is issue, On
a separate a
an excrescence,
level, this fascinating
project gave me a particular
personal
interest in the accused's words as evidence in court and the
is direct, if delayed,
present study a rather result.
I happy to the in the
am acknowledge assistance of many people
this In the University, Mr Iain Dyer the
preparation of work. of
Department Private Law has been I
of my supervisor and am most
for his help. I to Professor Joe
grateful am also grateful
Thomson for his interest. Mrs Liz Wilson the Clerk to the
Faculty, deserves thanks for her The
also a word of assistance.
Library both in the Workshop the fourth fifth
staff and on and
floors the University Library have been helpful
of unvaryingly
and a marked contrast to the rather surly junior staff members I
4
had the to than the Mitchell
misfortune encounter more once at
Library.
Outwith the University I like to thank Assistant Chief
would
Constable William Mc Master, Chief Superintendent Lawrence
McIntyre, Miss Kate Wilson, Strathclyde Police, for
and all of
their help in for for to have
and particular arranging me 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
Miss Mary Stocks, the Crown Office
particularly appreciated.
Librarian did the
also gave me much valuable assistance as staff
the National Library Scotland,
of of
Many former in the Procurator Fiscal
present and colleagues
Service have (generally but
contributed unwittingly) several are
due thanks. Mr Alexander Jessop (now Sheriff in
particular a
Aberdeen) for the thing
was responsible starting whole off when
he in the judicial In
put me charge of examination project. more
Regional Procurator Fiscal in Glasgow he took
recent years as
great interest in the progress of the thesis and gave me much
Thanks due to Mr Roderick Urquhart for
encouragement, are also
the loan to Dr Robert
of some valuable and rare source material,
Shiels help this
without whose practical advice and 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
to take the time
willingly allowing me actually off.
I thank Ann, has the fortune to know
must also my wife who good
virtually nothing about law, for encouraging me, for tolerating
frequent lengthy disappearances from the domestic
my scene as
the detritus littering horizontal
well as of academic study most
in the house, the floors for
surfaces not excluded, and providing
the tea (and the beverage)
endless supply of occasional stronger
has fuelled the from inception to
which project completion.
Finally I like to it that the in
would make clear views expressed
this be taken
work are my own personal opinions and should not as
being in the Procurator Fiscal Service.
any way representative of
The likewise
errors and omissions are entirely my responsibility.
I have to the law Scotland 31st
endeavoured state of as at
December 1991. The laws juridictions
of other are considered on
the basis to that date.
of sources available me on
David B. Griffiths
Glasgow,
March 1992.
( Blank)
7
TABLE OF CONTENTS
Volume 1
Acknowledgments
3
................................................
Table Contents 7
of
..............................................
List Cases 15
of
..................................................
List Abbreviations 29
of
.........................................
Abstract 33
......................................................
Chapter 1- Background Theory
and
1.1 A brief Scottish
outline of ancient criminal evidence and
35
procedure
................................................
1.2 The investigation the institution
of crime and of
44
proceedings
..............................................
1.3 The 53
comparative aspect
...................................
(i) Scottish English Lau. 53
and
(ii) Scottish law Northern Ireland 61
and
.................
(iii) Scottish law 63
and continental systems
..............
1.4 Fundamental issues in the
and related problems modern
law 68
......................................................
(i) General introduction 68
..... .........................
(ii) The to 70
right silence
..............................
(iii) The fairness test 75
.................................
(iv) Supporting 82
evidence
...............................
(v) The the 87
accuracy of record
........................
(vi) Some 92
assumptions and an exclusion
.................
Chapter 2- Literature
2.1 Literature
97
on confessions
................................
2.2 Historic Scottish texts
103
.................................
2.3 Scottish texts
on evidence and procedure 112
................
8
2.4 Periodicals, Scottish 118
collections and other sources.....
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
.........................................
(i) Statutory background 142
.............................
(ii) Factors the to 143
which weigh against right silence.
(a) Pressure to testify 143
.........................
(b) Statutory 145
provision
.........................
(c) Comment by the 146
prosecutor
...................
(d) Judicial 153
comment-
.........................
(e) Comment by 159
co-accused
.......................
3.3 Pre-trial judicial 161
proceedings
..........................
(i) Scotland "old judicial 161
style" examination
-
......
(ii) Scotland the 1980 Act 174
procedures
-
..............
(iii) England 191
..........................................
3.4 The Police 195
..............................................
(i) Scotland 195
.........................................
(a) Introduction 195
................................
(b) Development the in the
of police caution
196
nineteenth century
..........................
(c) The twentieth 200
century
.......................
(d) The in to 203
caution relation admissibilty.,.,.
(e) The 211
evidential effect of silence
............
(ii) England 213
..........................................
(a) Introduction history 213
and early
..............
(b) The Judges Rules Administrative
and
Directions 215
..................................
(c) The Police Criminal Evidence Act 1984.,. 220
and
(d) The 224
evidential effect of silence
............
(iii) Does the interrogation
reality of police respect
the to 226
suspect's right silence?
..................
3.5 Investigators than the 232
other police
.....................
(i) Where there is to
a special statutory power require
information 232
......................................
(ii) Where there is 234
no special statutory power........
9
238
3.6 The debate the to
on right silence
......................
(i) Should the be to
accused permitted give
238
evidence?
........................................
(ii) Should the
accused suffer adverse consequences
if he to testify
refuses answer police questions or
247
his trial?
at
....................................
247
(a) Introduction
................................
(b) Arguments in favour the to 248
of right silence.
(c) Arguments the to 257
against right silence......
263
3,7 Proposals for
reform
....................................
<i) Scotland 263
.........................................
(a) The Thomson Committee 263
.......................
(b) The Scottish Law Commission 265
.................
267
(ii) England
..........................................
(a) The Criminal Law Revision Committee 267
.........
(b) The Royal Commission on Criminal Procedure.. 269
(c) The Working Group on the Right to Silence... 270
273
(d) Justice
.....................................
Chapter 4- The Early History Of Confessions in Scotland
275
declarations
4.1 Judicial confessions and
...................
279
4.2 Other
verbal confessions
................................
284
4.3 Torture
.................................................
to 291
4.4 Interrogation on oath and reference oath
.............
Chapter 5- The Admissibility of Evidence of Confessions in
Scotland
294
5.1 Introduction
............................................
296
5.2 Judicial
statements
.....................................
296
(i) Judicial
confessions and admissions
..............
(ii) Judicial "old form" 300
examination
..................
(iii) Judicial 1980 Act 303
examination: procedures
........
(iv) Other judicial 305
proceedings
.......................
5.3 Confessions to the 307
and admissions police
................
(i) Background the the Scottish
rise of modern
-
307
police
...........................................
(ii) The Burnett 309
views of
.............................