THE EVIDENCE OF THE ACCUSED IN THE

CRIMINAL LAW OF SCOTLAND.

[Contributed by A. TAYLOR INNES, ESQ., of the Scottish Bar.]

THE criminal law of Scotland occupies a peculiar position in relation to this question. It is a position intermediate and at first sight paradoxical. There are many in all countries who believe that it is the natural thing for the accused to tell his story in open court; there are many in England who have come to believe that it is a natural thing for him not to tell his story at all. But there are few anywhere who are prepared to sympathise with a system which on the one hand provides for the official examination and re-examination of the accused in private, while on the other it absolutely forbids him to tell his own story to the court in public, or in the presence of the jury. That is the long-standing system in Scotland, and it is one which needs explanation or legislation-or both.

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The mere practice on the day of trial is very much alike in both countries. "The trial by jury, or assize, has by custom from time immemorial been the regular constitutional and ordinary way of trial for crimes in the Supreme Court of Scotland." But in presence of that jury, and at his trial, there has been down to 1898 no right on the part of the prisoner, however desirous he may be to do it, to open his mouth even on that portion of the case of which he alone has knowledge. And conversely, there is no power on the part of the jury, however much they may desire his explanation, to put a single question to him, either directly or through the judge, or through the prosecutor, or even by the lips and at the desire of his own counsel.

The state of opinion too in Scotland, on the bare question whether a prisoner should be competent to give evidence at his own trial, is not unlike that which exists in England. On the one hand there has been a growing and by this time a great preponderance of opinion in favour of such a legislative reform. I may take for illustration the Faculty of Advocates, a body which has for centuries had the exclusive privilege of defending prisoners in all the more serious crimes. When the question was before the country in 1878 the Bar of Scotland was quite divided in its view. 1 Hume's Commentaries on the Law of Scotland as to Crimes, vol. ii. 138.

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Its committee agreed to report in favour of the change, but only by a majority of one. At the meeting of the Faculty itself there was discussion of the considerations alike of justice and expediency advanced on both sides, and as a result the two propositions into which the desired change was branched out (1) "That the law should be altered so as to allow persons who are accused of crime to be competent, though not compellable, to be witnesses," and (2) “That it should be competent to examine a prisoner on the motion of the prosecutor "-were both carried by substantial, though varying, majorities. From this time onwards there was a steadfast ripening of opinion in the same direction, so much so that in 1887 the report of a committee approving of a similar Bill was endorsed by the Faculty unanimously. The same unanimity resulted when the question came up on March 16th, 1888. On June 24th, 1891, the committee itself was (1 think for the first time) unanimous, and the Faculty so promptly endorsed its decision that (except in 1893, and then only for the purpose of suggesting some safeguards on the universally accepted change) the question has never since been raised. I am informed indeed, upon enquiry, that this monotonous unanimity has been, somewhat paradoxically, the sole reason why the Faculty of Advocates was not this year called together to support the Bill promoted by the Government.

And yet, during all the time, it has been known that lawyers of large experience and great ability, who were in the minority on this question in Scotland, have firmly maintained their unuttered views. In particular the Lord Justice-Clerk Macdonald (Lord Kingsburgh) has recently broken silence to record his emphatic protest against the proposed legislation.1 And Lord Kingsburgh, more than any other man, represents the Criminal Law of Scotland, not only as having been during a lifetime its administrator, but as our chief modern institutional writer on the subject; and even more, as having become, by his Criminal Law Amendment (Scotland) Act of 1887, its successful reformer. It may be supposed, therefore, that we have at last an adequate representation of what can be said on both sides of the question. And yet I do not find that on either side-certainly not in the scanty literature which represented the victorious advance of reforming opinion twenty years ago in the profession in Scotland-has there been much reference to the historical peculiarity of the law of Scotland in this matter. The arguments which prevailed seem to have been mainly the obvious and popular ones common to both countries and to all 2; and 1 Juridical Review, April and July, 1898 (William Green & Sons, Edinburgh).

* Take for example the Journal of Jurisprudence of 1879 (p. 455), on the evidence of "the party accused":

"He generally knows more about the question than any other: he is at the source of all the light we need upon it. But then, at least in the case when he is guilty, he is under greater temptations than any other witness to deceive, and the light presumably comes to us with a maximum of deliberate refraction. But that is exactly as it ought to be, exactly as in daily life we expect it to be, only in daily life no one thinks of rejecting any

the time has perhaps now come for referring rather, in the spirit of historical enquiry and critical comparison, to the specialties of Scotland, and in particular to that extreme one-sidedness in our examination of the accused, which would sooner or later have called for legislative reform of the Scottish system, even had the tentative Act of 1898, common to both countries, never been passed.

For the Scottish question is not to be solved by a mere generalisation, apart from historical enquiry. In particular, it is not to be at once met by the generalisation which so many have derived from the attractive General View of the Criminal Law of England. In that work the English refusal to interrogate the prisoner is shown to have been a very modern thing, while it is at the same time described as "one of the most characteristic peculiarities of the English system." But what is its origin? It is perhaps usually accepted as due to the fundamental contrast alleged between the jurisprudence of England and that of the Latin races. Of that contrast we shall take Sir James Stephen's classical description: "A criminal trial may be viewed in one of two lights. It may be regarded either as a private litigation, in which the accuser demands the punishment of the accused, and the judge moderates between them; or it may be viewed as a public enquiry into the truth of matters in which the public are interested. This may be shortly expressed by saying that a trial may be viewed as a litigation or as an inquisition." Accordingly, the English disuse of that interrogation of the prisoner, which is so marked a feature of the French inquisitorial process, is expressly connected by our author, later on, with the same fundamental difference. He says: "In the eighteenth century the practice of questioning prisoners at their trial appears to have fallen into disuse, probably because light, valeat quantum. Take the early stages of a cause célèbre, of such a quality as to interest and puzzle intelligent men. The whole city is full of it. A few days before the trial we meet at a dinner-table a friend who has brought with him what is ascertained on good authority to be the story of the prisoner. Does any one refuse to hear it? Those present may refuse to believe the story, in part or in whole, when they have heard it; but they hear it with avidity, because they are trying to get at the truth on a matter as yet doubtful, and they all feel instinctively that for this purpose a story, even a false story, by the person who knows all about the doubtful matter, is a gain, being taken for what it is worth. Now there is no great difference between fifteen men round a table and fifteen men in a box. The latter also are supposed to be trying to get at the truth, and they are sent there for that purpose. On one point at least there is never any difference between the two. The fifteen jurymen are unanimous in desiring that the mouth of the prisoner be opened. No one ever saw a juryman who was not so desirous, unless he had already, from opinionativeness or partiality, closed his mind against farther light. But it is not the fifteen men on that side of the court alone: every man within the building, who is not either professionally engaged or interested as a partisan, desires, precisely in so far as he desires the truth and finds it doubtful, that light should come to him from this quarter as from others. There is only one man in the court who is bound to exclude that light, and he is-the representative of justice."

1 General View, p. 22. My quotations are from the first and fuller edition, 1863.

during that period the theory that a criminal trial was substantially a private litigation constantly gained ground, and was combined with the reduction of the rules of evidence to a systematic form. Hence the principle that a party was an incompetent witness would be supposed to forbid the interrogation of the prisoner." The general position of writers and reasoners on this subject has accordingly been that examination of the prisoner, whether a right thing or a wrong, is appropriate to a criminal system which is inquisitorial and by public authority like that of France, but is opposed to a system which, like that of England, does justice even in criminal matters as between "party and party."

The simplicity of this explanation would be disturbed by a more careful reading of Sir James Stephen's narrative, and still more, probably, by perusal of his sources. But in the first instance it receives a shock from the facts as to Scotland. The existing practice is, as we have seen, the same at the trial in both parts of the island, so far as regards the examination of the accused. But up to that day of final trial the procedure of the Scottish criminal law is contrasted with that of England, and belongs to the Continental type of public inquisition rather than to the English form of litigation between the parties. And even to the end of the day of trial itself it remains essentially an inquisition, according to the definition given: "a public enquiry into the truth of matters in which the public are interested -an enquiry too which is in Scotland wholly conducted by the representative of the public, the private accuser having no place in it whatever. More than this, the history of the two countries, on this precise point of the conflict between the system of the public and the system of the private accuser, has been sharply contrasted.

1 General View, p. 194.

2 Thus in Scotland, as in France, it is practically, though not theoretically, true that (in the words of the first sentence of the Code d Instruction Criminelle) "all procedure with a view to punishment is entrusted to the officers of the law." One class of these officers throughout Scotland forms what is called abroad a "hierarchy," for from Crown counsel down to the lowest village constable they are all subordinated, and some of them directly subject, to the Lord Advocate. Their functions are those of inquisition-i.e., they receive and collect evidence in regard to crime; they interrogate, and may re-interrogate, the accused in private before a magistrate; all other witnesses they interrogate or " precognosce" in private, without any supervision; they do not, as in England, furnish to the accused a copy of the depositions made against him; and the question resulting from all the depositions-viz., whether the accused is to be tried, and in what court, decided in France by three judges, is settled in Scotland by the Lord Advocate, or by the SolicitorGeneral and four Crown counsel, who are the Lord Advocate's deputes. On the other hand, there is in Scotland no private examination of the accused by the presiding judge immediately before the trial, and (until the Act of 1898) none while it is going on; and in the earlier stages the whole judiciary in Scotland is much less closely connected with the prosecuting hierarchy. In France both practically form one body, supposed to represent the State, so that in the result the jury is sworn to do justice between the man accused and "la société qui l'accuse." It will be remembered that on December 8th, 1897, important changes were made in France on the Code d'Instruction giving the accused, for example, free access at all times to his counsel (except in courts-martial!). In Scotland, as we shall see, similar provisions were embodied in the Act, 1887.

The course of the English criminal law and process, its distinguished historian tells us, has been a progress from the "form which originally belonged to them of a public enquiry" into the "form of a private litigation." It would be a perfectly fair description of the history of the Scottish criminal law to say that it has been the converse-at least it has been so on the crucial point of the "instance," or the question who is to be recognised as prosecutor. We may take on this subject our highest authority in the criminal law of Scotland. Baron Hume, in the third edition of his Commentaries, which was published so late as 1829, says (ii. 118):

"Of the two titles of prosecution acknowledged with us, I shall first attend to that of the individual or party injured by the wrong. For although nowadays far from being a frequent sort of process (which is one symptom of the more vigorous and wholesome administration of the laws in our times), yet this without a doubt was the original and for long the ordinary course of trial, for most crimes that concerned individuals."

And it is only after spending twelve quarto pages upon this, the original and formerly the ordinary course in Scotland, that Hume (p. 139) takes up the modern prosecution at the instance of the Lord Advocate, the public accuser, who insists in the name of the king, and for His Majesty's interest, in the execution of his laws and for the tranquillity and welfare of his people. This office, though it probably existed at an earlier period, was not, however, much taken notice of before the beginning of the sixteenth century; and, according to the common account, it was first raised to its present high privilege with respect to the prosecution of crimes by the statute, 1587, c. 77, which provides "that the Treasurer and [King's] Advocate pursue slaughters and other crimes, although the parties be silent or would otherwise privily agree." In Hume's days—that is, in the early part of our century—criminal prosecution by the private party, though competent by law, was "far from frequent" in Scotland. At the present day, though still and equally competent, it is completely superseded by the system of the public prosecutor, and the ordinary Scotsman does not even know that the older right exists at all. We need no stronger statement on this than the sweeping utterance this year of the Lord Justice-Clerk Macdonald: "Private prosecution has practically died out in Scotland, no such thing as a private prosecution having taken place during the now more than forty years of my association with the courts of criminal jurisdiction." 2

Our practice in Scotland has, therefore, in this particular, crossed over from the one shore to the other. It has been a progress from "the form of a private litigation" to "the form of a public enquiry," or at least of a criminal process initiated by the representative of public justice.

It will, I think, be of some interest to go back now to the point in our Scottish history where the two systems diverged-the point where Scotland might to all appearance have become conformed to the modern English 1 General View, p. 154. 2 Juridical Review, April 1898, p. 134.