Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
accused’s first appearance on petition, is instructed only in a limited numberof murder and rape cases.6.2.64 The revival of judicial examination failed as an experiment. This failurestarted with the disapproval of the use of prepared statements 61 and wascompleted with the decision that exculpatory statements were inadmissible,notwithstanding that they were made in the context of a statutory procedure 62 .The judicial view was that the use of the procedure as a substitute fortestimony required to be “stamped out” 63 . As it is recommended that thereshould be no bar on questioning by the police after a charge has been made,provided judicial sanction is obtained, judicial examination will beunnecessary. The use of the judicial examination procedure has rightly falleninto disuse, and in future should serve no purpose. The procedure should belaid to rest by its formal abolition. For similar reasons, since accused personsbrought before the sheriff on petition hardly ever emit declarations in practice,this part of criminal procedure should cease to exist. A person shouldcontinue to be brought before the sheriff, but not for examination. There maybe a continuation for further “investigation” prior to full committal, but theprocedure should be modernised to take account of what actually happens inpractice.61 Carmichael v Armitage 1983 JC 862 Hendry v HM Advocate 1985 JC 10563 ibid LJ-C (Wheatley) at 109200
RecommendationsI therefore recommend that:⎯ there is no need for statutory provision on the purpose of questioning;⎯ the prohibition on police questioning after charge should be abolishedand there should be a process whereby the police, where they feelthere is good reason to question a suspect after he/she has beencharged or reported to the procurator fiscal, can apply to a sheriff forpermission to do so prior to a first appearance at court. In particularsuch an application:(a) must state the grounds for allowing questioning post charge; and(b) can be made, and responded to, remotely by electronic means;⎯ the Crown should also be entitled to make such an application to thecourt in the course of a prosecution, at the first appearance before thecustody court; or at any time prior to the trial diet;⎯ in all such cases, the Court should have the discretion to placewhatever conditions, constraints or limits on such further questioningit sees fit;⎯ legislation should provide that courts have a general power to excludeevidence, including statements made by suspects to the police duringthe course of an interview or otherwise if the admission of thatevidence would result in the trial being rendered unfair in terms ofArticle 6, including unfair by reason of an infringement of a suspect’sright to silence or his/her privilege against self incrimination.Consideration should be given to the abolition of all other rules for theexclusion of relevant evidence in criminal cases;⎯ the common law rules of fairness concerning the admissibility ofstatements by suspects should be abolished in favour of the moregeneral Article 6 test;⎯ there is no need for statutory provision on pre-interview briefing ofsuspects; and⎯ the procedures of Judicial Examination and the emission ofdeclarations should cease by, inter alia, repeal of the relevantprovisions of the 1995 Act.201
- Page 152 and 153: interview. That is the general posi
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<strong>Recommendations</strong>I therefore recommend that:⎯ there is no need for statutory provision on the purpose of questioning;⎯ the prohibition on police questioning after charge should be abolished<strong>and</strong> there should be a process whereby the police, where they feelthere is good reason to question a suspect after he/she has beencharged or reported to the procurator fiscal, can apply to a sheriff forpermission to do so prior to a first appearance at court. In particularsuch an application:(a) must state the grounds for allowing questioning post charge; <strong>and</strong>(b) can be made, <strong>and</strong> responded to, remotely by electronic means;⎯ the Crown should also be entitled to make such an application to thecourt in the course of a prosecution, at the first appearance before thecustody court; or at any time prior to the trial diet;⎯ in all such cases, the Court should have the discretion to placewhatever conditions, constraints or limits on such further questioningit sees fit;⎯ legislation should provide that courts have a general power to excludeevidence, including statements made by suspects to the police duringthe course of an interview or otherwise if the admission of thatevidence would result in the trial being rendered unfair in terms ofArticle 6, including unfair by reason of an infringement of a suspect’sright to silence or his/her privilege against self incrimination.Consideration should be given to the abolition of all other rules for theexclusion of relevant evidence in criminal cases;⎯ the common law rules of fairness concerning the admissibility ofstatements by suspects should be abolished in favour of the moregeneral Article 6 test;⎯ there is no need for statutory provision on pre-interview briefing ofsuspects; <strong>and</strong>⎯ the procedures of Judicial Examination <strong>and</strong> the emission ofdeclarations should cease by, inter alia, repeal of the relevantprovisions of the 1995 Act.201
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