Report and Recommendations - Scottish Government

7.4.17 The common law can certainly be understood in the context of an adversarialsystem where rules of evidence were designed to exclude unreliable testimonyentirely from consideration by a jury. Furthermore, in such a system, what asuspect says in a police interview might be excluded in order to ensure thatsuch statements are not created as substitutions for testimony at the trial diet.However, where a system must be Convention compliant, it has to beremembered that the police interview may be regarded as part of the trialprocess. In these circumstances, it is difficult to justify the exclusion ofanswers given in a process initiated by the police and continued by the Crown.Thus it should at least be the case that, where a person has been made thesubject of a formal police investigation and has been interviewed in the courseof that enquiry, any replies which he/she makes in the course of that processought to be admissible for all competent purposes, including proof of fact.7.4.18 As already commented, it would be simpler if there were a general rule that allstatements made by accused persons were admissible, unless objectionablehad they been made in the witness box. In that event, it would be for a judgeor jury to assess the credibility and reliability of statements in all thecircumstances in which they came to be made. This would again be inkeeping with the “modern emphasis on the free assessment of evidenceunencumbered by restrictive rules” 44 . In the event of the accused attemptingto use a carefully prepared statement instead of giving evidence, the judge orprosecutor would be well entitled to comment on that fact. Once more, if, in amodern society, judges and juries are to be trusted to be able to consider and44 Wilkinson: Evidence 204 quoted at para 7.2.57312