Report and Recommendations - Scottish Government

Justice-Clerk (Inglis) stated to a police officer giving evidence that “when aperson is under suspicion of a crime, it is not proper to put questions, andreceive answers, except before a magistrate” 3 . The roles changed over timeand that of the police became much more investigative. In that setting, thecourts began to admit evidence of confessions to the police if they had beenfairly obtained. But in the first half of the 20th century, some (probably most)judges 4 remained of the view that, once a suspect had been arrested andcertainly if he/she had been charged, he/she could not be questioned by thepolice, and if he/she was, any consequent incriminatory statements would beinadmissible.2.0.3 Mill 5 usefully describes a setting whereby an arrest would be carried out byone police officer, who would take the suspect to a police station. There, theduty officer would apply himself to the evidence and decide whether there wassufficient to charge, and thus to detain, the suspect. There could be somelogistical delay between arrival at the police station and the charge, dependingupon further police enquiries and possible consultation with the procuratorfiscal. However, if the duty officer considered that the suspect should bedetained, he was obliged to caution and charge him. The prisoner would thenbe removed from the presence of the arresting officer and placed in a cell3 HM Advocate v Hay (1858) 3 Irv 181 at 1844 notably Lord Moncrieff in Stark and Smith v HM Advocate 1938 JC 170 at 175 and Morrison vBurrell 1947 JC 43 at 495 The Scottish Police: Powers and Duties (1944) p 88 et seq. Mr Mill was the Edinburgh cityprosecutor24