Report and Recommendations - Scottish Government

Lord Justice General referred to the ordinary citizen regarding the venue of apolice station as “sinister”, where the dice were loaded against the suspect 13 .There followed this passage, in which he outlined what he viewed to havebeen the law for over almost a century 14 :“The accused cannot be compelled to give evidence at his trial and tosubmit to cross examination. If it were competent for the police attheir own hand to subject the accused to interrogation and crossexamination and to adduce evidence of what he said, the prosecutionwould in effect be making the accused a compellable witness, andlaying before the jury, at second hand, evidence which could not beadduced at first hand, even subject to all the precautions which areavailable for the protection of the accused at a criminal trial”.2.0.6 Contrary to what the Thomson Committee subsequently considered to be thetrue position 15 , this was thus advanced as the legal basis in pre-ConventionScots criminal law for the exclusion of evidence of confessions notspontaneously given. Logically, it was reasoned, because an accused personcould not be forced to give evidence, he/she could not be forced to answerquestions at an earlier stage either. As will be seen, this view was lateradopted by Lord Rodger, when he was Lord Justice General 16 .2.0.7 Whether this analysis of principle is correct is debatable, but the analogy is notquite right. If an accused person elects to give evidence in court, he/shecannot do so by answering only some questions on the grounds that theanswers to others might incriminate him/her. Once he/she starts to testify,he/she must answer every question posed relative to the crime charged. If13 His opinion found favour with the Supreme Court of the United States in Miranda v Arizona (1966)384 US 436, Warren CJ at 47814 at 7915 at para 7.0216 Brown v Stott 2000 JC 328 at 34627