Report and Recommendations - Scottish Government

2.0 HISTORICAL BACKGROUNDIntroduction2.0.1 Over the last century, Scots law has looked upon the issue of the admissibilityof statements made by suspects in custody from the perspective of whetherthey were, in the eyes of the court, fairly obtained. By this is meant that, to beadmitted in evidence at a trial, any statement had to be spontaneous, as distinctfrom being brought about by inducements or pressure from the police or others.Traditionally, once a person had been arrested he/she fell into a distinctcategory. As a person in custody, he/she was entitled to certain statutoryprotections, notably “immediate” intimation to his/her solicitor and a privateinterview with a solicitor before appearing in court 1 . As a generality, andalthough there is no statutory provision to this effect, a person arrested 2 couldnot be questioned and any answers to questions, however fairly put, would beregarded as inadmissible. How did the law arrive in that state?2.0.2 The essential starting point is that, originally, although the task of arresting asuspect would be carried out by the police, investigation was the province ofthe sheriff and later, in practice, his/her procurator fiscal. The arrest by thepolice was solely with a view to bringing the suspect before a court forexamination. Evidence of a confession to the police prior to a suspect’sappearance in court was regarded with extreme suspicion and often held to beincompetent. Thus, in the mid 19th century, the newly appointed Lord1 currently s 17 of the Criminal Procedure (Scotland) Act 1995 (originally Criminal Procedure(Scotland) Act 1887 s 17)2 but cf Johnstone v HM Advocate 1993 SCCR 69323