Article Volume 11:1

Public Interest and Safeguards for the Suspect

Table of Contents

Public Interest and Safeguards for the Suspect

T. B. Smith *

With the Province of Quebec Scotland shares a common heritage
in the field of Civil or Private law, the jurisprudence of our two
systems owing its inspiration to Rome and to France. In the realm of
Criminal Law and Procedure, however, the Canadian Criminal Code,
largely of English inspiration, applies throughout the Dominion. Para-
doxically – but by special dispensation of Providence –
in the United
Kingdom Scottish criminal law has been permitted to develop free
from direct influences of English law.’ Indeed today the force of com-
parative law in Britain is largely from North to South, so that the
solutions of Scottish criminal law and procedure are invoked by legis-
lator and judge to ameliorate the English system 2 – which, of course,
through the influence of precedent had become more rigid and ana-
chronistic than Canadian criminal law, for which the Code provided
opportunity for second thoughts. Since on some of the matters which
I shall discuss Canadian practice is not yet finally settled by decision,
might I even venture to suggest that there could be advantages –
when scope for comparative references permits, especially in matters
of procedure –
to look less to London and more to Edinburgh in con-
sidering the contribution of British criminal justice. Here in Quebec
you perhaps need no persuasion that the final revelation of legal
wisdom was not vouchsafed to the English common lawyers alone –
and, as we in Scotland have much to learn from you in matters of
private law, so also we may with advantage share our thoughts regard-
ing criminal law and procedure. As regards public interest and safe-
guards for the suspect, the attitude of the North American systems
is in many respects closer to English practice than to that of Scotland.
In most countries Criminal Law and its practitioners enjoy a
higher reputation among laymen than among professional lawyers.
Many laymen –
after looking at the Perry Mason Series, The De-

* Professor of Civil Law, University of Edinburgh. The following address was
delivered by Professor Smith to members of the Faculty of Law of McGill
University, in December, 1963.

1 See T. B. Smith, British Justice: The Scottish Constitution, p. 95 et seq.
2 The most significant recent examples concern the law of murder and culpa-
ble homicide or manslaughter and, in procedural matters, the granting to the
defence of the right to make the final address to the jury.

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fenders and so forth, think that the average lawyer spends his life
outwitting opponents in criminal trials. Many lawyers, on the other
hand, think that corporation, tax and property law or the devising of
trusts or commercial contracts is ‘respectable’, and that only the
dregs of the profession engage in the sordid practice of the criminal
law. Both types of layman and lawyer are misled or blind themselves.
The object of criminal justice is not to set the stage for a game in
which swift wits and sharp practice may frustrate society’s obvious
interest in curbing the wrongdoer –
nor on the other hand is the
prosecutor’s value to be judged by the number of convictions which he
can secure. Again, unless the leading lawyers in a community are
prepared to interest themselves in criminal justice and indeed to par-
ticipate in defending unpopular suspects, neither the public interest
nor those of the accused will be set in their proper perspective.3
Significantly, where political questions or those of civil rights emerge
in the context of criminal law, leaders of the profession may defend
without disapprobation of the Brahmins even in the Anglo-American
systems.

Public Responsibility for Prosecution

One of the most important factors in the proper administration
of criminal justice is to secure a system of prosecution which will have
regard to the public interest uninfluenced by ulterior considerations
such as popularity or unpopularity, discrimination or revenge. This
demands the development of high professional standards involving
mutual trust and respect between prosecuting and defending counsel.
Though it may be desirable to make the chief law officer answerable
in the last resort to the Legislature for the proper discharge of his
duties, I hold that prosecution is best kept free from politics. In
England, private prosecution is still used extensively, and police prose-
cution for lesser offences is still, in theory, private rather than official.
The real pivot of criminal justice in Scotland is the Crown Office.4
Ultimately –
all criminal prosecution in
Scotland is now under the control of the Lord Advocate, the senior
Law Officer of the Crown, assisted by a small number of Advocates-
Depute, appointed by him from the Scottish Bar, and by the perma-

subject to one exception –

3 This point was made with particular force and clarity by Justice Brennan
of the U.S. Supreme Court when he addressed the Harvard Legal Aid Bureau
on February 13, 1963, on the occasion of its “Golden Anniversary”.

4 See Lord Normand, The Public Prosecutor in Scotland, (1938) 54 L.Q.R. 345;

also The Scottish Judicature and Legal Procedure, Holdsworth Club, 1941.

No. 1] PUBLIC INTEREST, SAFEGUARDS FOR SUSPECT 45

nent officials of the Crown Office in Edinburgh. In the sheriffdoms 5
the public interest is represented by Procurators Fiscal (comparable
except that they are not political appointments – with
perhaps –
District Attornies in the U.S. or in certain respects with the Juge
d’Instruction in France). These Procurators Fiscal are responsible
to the Lord Advocate for prosecution, preliminary investigation of
crime, and enquiries into sudden death (there are no Coroner’s in-
quests in Scotland and I believe that much unnecessary harassing of
feelings through undesirable premature publicity is thus avoided).
Though considerable discretion is delegated to Procurators Fiscal in
handling the prosecution of offences, all matters of difficulty or im-
portance are reported by them to the Crown Office in Edinburgh for
decision and advice. Private prosecution in Scotland is virtually un-
known. It is theoretically possible for a private citizen to prosecute
an indictable crime if he has suffered injury in his private capacity as
distinct from the harm suffered by members of the general public,
but, unless the Lord Advocate concurs, a bill for criminal letters must
be granted by the High Court of Justiciary, which can grant the
request despite the Lord Advocate’s objection. 6 To succeed, however,
the complainer must show some substantial and peculiar personal
interest which, notwithstanding the Lord Advocate’s refusal in the
public interest to concur, would justify the Court in allowing proceed-
ings. Moreover, the Court declines to review the reasons for the
exercise of the Lord Advocate’s discretion not to prosecute in the
public interest. The only modern attempt to obtain “criminal letters”
was in Feburary 1961, when a private citizen presented a bill for
criminal letters to the High Court of Justiciary seeking to prosecute
a book seller for exposing for sale and selling the book Lady Chatter-
ley’s Lover. This attempt failed.7 Having considered the public inte-
rest, the Lord Advocate refused concurrence –
and, since the com-
plainer could show no special personal interest in the matter beyond
that of other members of the public (presumably because he was no
more corrupted than other citizens) the High Court of Justiciary re-
fused to grant criminal letters.

It seems most desirable that the functions of public prosecution
should be kept quite separate from those of law enforcement. In Scot-
land the police have a duty to assist a Procurator Fiscal in his investi-
gations as he requires, but they have no control over the decision
whether or not to prosecute. The decision whether to prosecute is a

is divided for judicial and some administrative purposes into

5 Scotland

“sheriffdoms”.

6 J. P. Coats Ltd. v. Brown (1909) 6 Adam 19.
7 McBain v. Crichton [1961] J.C. 25.

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matter for those alone who are concerned with the public interest.
Private prosecution has been defended by some as one of the valued
and traditional rights of Englishmen. I do not share this enthusiasm,
and observe that in other systems based on English law, the modern
trend is to entrust prosecution to a responsible public prosecutor. A
Memorandum of Evidence submitted in 1961 by the Inns of Court
Conservative and Unionist Society to the Royal Commission on the
(Recommendation 13)
Police expressly recommends for England
“that consideration be given to the possibility of introducing a system
similar to the Scottish system of the procurator-fiscal for the conduct
of prosecutions”. The Law Society of England in its Memorandum
also expressed dissatisfaction with the present practice of police
prosecution for lesser offences in England. In particular they consid-
ered that police officers should not discuss with the accused what plea
should be made. They recommended that all prosecutions should be
brought in the name of the Crown, and conducted by solicitors.
England is a country much larger in size and population than Scotland,
and it may well be that the close links which exist between Procura-
tors-Fiscal and the Crown Office in Scotland could not be reproduced
exactly in English practice. Some form of decentralisation might be
necessary or a substantial increase in the staff of the Director of
Public Prosecutions.

Arrest to trial

As I understand the Mallory Rule, which applies in the District
of Columbia, a suspect must be brought before a magistrate speedily
if any statement obtained is to be used in evidence –
a safeguard
designed to deter ‘investigative arrest’. A similar practice is followed
in Scotland. An accused – normally no later than the morning follow-
ing his arrest –
is brought formally before a judge (the sheriff).8
In modern times this appearance is for practical purposes largely a
formality, since the suspect is not in fact examined, nor is any declara-
tion taken unless (which happens rarely) he insists on emitting one.
Nevertheless, the procedure does ensure judicial supervision of pre-
trial procedure at an early stage. This seems highly desirable in the
interests both of the public and of the suspect. Even though on this
occasion the court may order the accused to be kept in custody, or
liberate him on bail, in modern times the Court does not decide whether

8 The civil and criminal jurisdiction of the Sheriff in Scotland is very extensive.
In general, there is no monetary limit in civil causes and, though his powers of
punishment are restricted, he may deal with all crimes and offenses except
murder, rape, incest, and a few others.

No. 1] PUBLIC INTEREST, SAFEGUARDS FOR SUSPECT 47

or not a prima facie case has been disclosed by the prosecution.9 The
public prosecutor is entrusted with the duty to satisfy himself as to
the sufficiency of the case to such an extent that one of our Scottish
Judges, Lord Kilbrandon, considers that justice fails if an innocent
man is put on trial. This may be a somewhat exaggerated view, but
is in large measure justified.

The Scottish attitude to bail is liberal, but wider considerations are
taken into account than in English or American practice.’ 0 There is a
general assessment of the public interest, and considerable weight is
given to the attitude of the prosecutor, who alone is adequately inform-
ed of the various factors involved –
such as the danger of witnesses
being intimidated or further crimes committed. Inadequacy of means
will not prevent the grant of bail in a proper case, but, on the other
hand, a suspect who can lay down a high price cannot compel release.
Release on bail no longer depends in Scotland on the so-called “pre-
sumption of innocence” –
a presumption which, in my submission,
is really an aspect of the law of evidence relevant only for the trial
court and applies to all accused persons. It seems to mean no more
than that the prosecution has the burden of establishing guilt beyond
reasonable doubt. The current Scottish view is that the courts have a
general :discretion to grant bail in all cases unless satisfied that this
would be contrary to the public interest and the ends of justice. Super-
vision of detention in custody and bail procedure in Scotland as in
other Romanistic jurisdictions does not involve invocation of habeas
corpus, though other remedies are available. Any person in custody
who has not been committed for trial may petition the High Court
of Justiciary for release; while there are statutory provisions to
expedite the trial of persons committed to custody. The limit of incar-
ceration without trials is 110 days from commitment, unless factors
outside the control of the prosecution –
such as illness of the accused

justify extension of the period.

Pre-trial Procedure and Publicity

The Inns of Court Memorandum referred to earlier further
observed that “if a system of prosecution similar to that which oper-
ates in Scotland were to be introduced in England, the cost of the
reform might be offset by making preliminary hearings before magis-
trates more economical”. I would go further, and suggest that, if
England introduced a system of prosecution comparable to that of

9 See this more fully discussed by the author in Bail Before Trial: Studies

Critical and Comparative, (1962) p. 252.

10 Ibid., p. 268.

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including all cases of murder –

Scotland, the same officials, responsible to a higher authority, could
carry out the preliminary inquiry, as is done in Scotland, without the
need for a pre-trial hearing at all. The one advantage to the accused
which clearly attaches to the Anglo-American procedure of pre-trial
hearing before magistrates is that the accused is thereby informed of
the evidence to be adduced against him. This end is achieved in Scot-
land by supplying the defence before trial, not only with the indict-
ment, but with a full list of the Crown’s witnesses and productions,
and in appropriate circumstances –
by disclosing to the defence the Crown’s precognitions (anglic6 depo-
sitions) of witnesses taken by the Crown. In England for the privi-
lege of hearing what case he has to meet, the accused must usually
pay the high price of exposing himself to prejudicial publicity at a
stage when the defence is not as a rule in a position to offset by evi-
dence the impact of the prosecutor’s allegations. In Scotland, as in
certain other countries, pre-trial procedure is quasi-inquisitorial –
in no pejorative sense. The accused himself is not a participant in
the Procurator Fiscal’s investigation –
for the formal appearance before a judge; there is no confrontation
of the accused by prosecution witnesses nor questioning of them in
public procedure by the defence at the pre-trial stage. Evidence from
other sources is sifted by the Procurator Fiscal and a dossier on the
case is prepared. Only if the public authorities are satisfied that a
prosecution should very probably –
succeed
will an accused be brought to trial. This is more exacting a test than
showing a porima facie case as in England. The public authorities, of
course, may be wrong; a frightened witness to a gang murder, for
example, may go back on evidence which he gave on precognition. The
problem of deciding whether the public should pay the expenses of
the defence in criminal proceedings when the accused is acquitted is
not of the same magnitude in Scotland as in England. So far as graver
crime is concerned, few are tried in Scotland unless there is an
objective assessment of a strong probability of guilt. It may be a
legitimate criticism of Scottish procedure that too many guilty per-
sons escape trial, and it must not be overlooked that the public inter-
est in the protection of society and in the rehabilitation or restraint
of wrongdoers is very obvious.

except, as I have mentioned –

not merely possibly –

The main objection, from an outside observer’s point of view, to
the English system of pre-trial hearing before magistrates is their
publicity. Originally, the fact that the public had access to such pro-
ceedings was a protection to the accused against abuse of power to
his prejudice. Today, publicity is more likely to be a curse than a
blessing to him. If a suspect is socially prominent or notorious, or if
the crime alleged against him is of a type which excites public interest

No. 1] PUBLIC INTEREST, SAFEGUARDS FOR SUSPECT 49

or indignation, the evidence adduced at the pre-trial hearing will,
nevertheless, as a rule in England and in America be made accessible
through the press to members of the public, including those who will
sit on the trial jury, long before the time of trial. The right to publish
such evidence in the United States is defended on constitutional
grounds. Similarly in England it is regarded as one of the immemorial
privileges of Englishmen to repudiate “justice behind closed doors”.
A Scotsman may consider that justice will be better served if the pre-
trial inquiry is behind closed doors, and if the accused, when he
appears before the judge in Chambers, so that judicial cognizance may
be taken of his arrest, is safeguarded by the presence of his legal
adviser. In Scotland as in England, once an accused has been appre-
hended, the function of the press in commenting upon the guilt of a
suspected person or the nature of the charge against him is suspended
under severe sanction of law.” This in Scotland is not a right solely
of the accused, nor is infringement necessarily an aspect of contempt
of court. Interference with the administration of justice can take
many forms. 12 Thus no comment is permitted which might influence
the mind of the public in favour of an accused awaiting trial –
as by
attacking the merits of the prosecution. Scottish protection against
injurious publicity goes further. Publication of statements by pros-
pective witnesses before they testify at the trial is absolutely forbid-
den, as is publication of photographs of persons under suspicion
especially after arrest, since this might influence the reliability of
evidence of identification. 13 The over-riding purpose is to secure that
the accused should be tried by a jury which comes to its duty without
any preconceptions whatsoever regarding guilt or innocence. After
arrest –
in one view, as soon as the official investigation has started
and before trial of an accused, the press in Scotland is permitted to

publish only the bare facts that a named person has been charged with
a particular crime and that he has been committed for trial. This con-
trasts sharply with the situation in other parts of the United King-
dom and with practice on this side of the Atlantic. Dean Griswold of
Harvard in his Maccabean Lecture 14 delivered in October 1962 before
the British Academy, has compared English and American practice
with regard to pre-trial publicity, and in my opinion –
though his
strictures on the American system are justified –
has taken much

” The leading case is Smith v. Ritchie (1892) 20 R.(J.C.) 52; see also Stirling

v. Associated Newspapers [19601 J.C. 5.

12Hume, Commentaries on the Law of Scotland concerning Crimes, vol. 1,

p. 366 et seq.

13 See Stirling, op. cit.
14 Two Branches of the Same Stream, Proceedings of the British Academy,

(1962), p. 235.

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too charitable a view of the position in England, a position which,
especially since the report of the Tucker Committee, many English
lawyers would wish to see reformed in closer accord with Scottish
practice.

So far as I can ascertain from the perusal of such Canadian cases
as Regina v. Buller & Glazer,15 Regina v. Thibodeau 6 and Regina v.
Bryan,17 problems of pre-trial publicity in Canada have only quite
recently required judicial solution, and the tendency is to adopt the
namely, that factual reporting of damaging evi-
English approach –
dence (such as alleged confessions) disclosed at a Coroner’s inquest
or at a pre-trial hearing is permissible, but that actual comment on a
pending criminal prosecution is condemned and punished. May I ven-
ture the suggestion that either type of publicity may be calculated to
influence the minds of members of the public including the jury which
has to reach a verdict at the trial.

It seems to me that American practice with regard to pre-trial
publicity has permitted a licence which may impair the possibility of
fair trial and yet be beyond judicial control. Contempt procedure
seems to be limited to acts “in or near” the courtroom or to such as
create a “clear and present danger” in a phrase which has been
narrowly construed. The Constitution at present seems to lag behind
the realities and the development of mass media of publicity. Certainly
I have myself seen in the United States some astonishing press report-
ing before and after arrest of a suspect and also before and during
for example, prejudicial matter affecting his private life,
trial –
grounds for suspecting his guilt, his behaviour when interrogated
with the lie detector, prosecuting or defence counsel’s proposed con-
duct of the case and so forth.

In October 1962 a Miss Suzanne Cliff, who was socially prominent
and daughter of a well-known film actor, fell under the suspicion of
having killed a young man – whose nude and mutilated body was
found by the lady’s grandmother on returning to her apartment in
Boston. This must have been a disagreeable homecoming indeed for
the older lady. Miss Cliff also returned of her own accord to Boston
from South America and underwent treatment in a hospital for men-
tal and nervous diseases. Almost as disagreeable as the grandmother’s
experience was the type of press publicity which resulted. Before Miss
Cliff had been tried for any crime such press coverage was given as
seemed calculated to ensure that there could not be found in the

15 (1954) 108 C.C.C. 352.
16 (1955) 23 C.R. 285.
17 (1954) 108 C.C.C. 209.

No. 1] PUBLIC INTEREST, SAFEGUARDS FOR SUSPECT 51

Republic twelve jurors who had not already had their minds influenc-
ed by blaring headlines branding Miss Cliff as killer of her lover.
Whole page portrait photographs were published of the suspect as
a debutante, and flash bulb photographs were taken of a wretched
and frightened girl returning to the protection of her country’s laws.
One paper at this pre-trial stage of proceedings was good enough to
let the public know that her legal advisers intended to plead self-
defence. (In fact, she was eventually disposed of as a mentally
deranged person). I am at a loss to understand why the public should
be deemed to have a legitimate interest in matters of this kind at the
pre-trial stage. Both the public interest and that of the accused
require a fair and impartial trial on the evidence alone –
not trial
by newspaper.

In Scotland, of course, as in all civilised countries the cooperation
of the press in reporting fully and fairly the vindication of justice at
the actual trial of a suspect is encouraged both in the interest of the
individual and the public. Experienced reporters, who have specialised
in court work, have made a much greater contribution to the adminis-
tration of justice than has ever been recognised. It may be added that
trial publicity cannot in Scotland, as in England, prejudice an accused
if the jury fail to agree. In England, retrial must follow: in Scotland
conviction or acquittal is decided by the majority vote of a jury of
fifteen. The problem of the “hung jury”, to use the American expres-
sion, does not arise. I may be permitted a passing reference to publi-
city given to the trial itself. Recently a determined – but I am glad
to say unsuccessful effort – was made in the United States to vary
Judicial Canon 35 which (by contrast with the Colorado Rule)
condemns the taking of photographs in the Court Room and the broad-
casting of Court proceedings. Perhaps strict logic might not discri-
minate between media of publicity but anyone who has had the
responsibility of appearing in a serious criminal trial would surely
agree that to allow television cameras and broadcasting would add
enormously to the strain involved for accused, counsel and witnesses.
The idea of turning the administration of justice into a movie show
seems to me altogether repugnant.

Trial

Before trial on indictment both Crown and defence in Scotland
must have exchanged information regarding the witnesses and produc-
tions on which they intend to rely, and, moreover, the defence must
have given advance notice of certain “special defences” such as alibi,
self-defence, insanity or an allegation that another specified person

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has committed the crime. This may deprive a Scottish criminal trial
of some of the dramatic interest of the Perry Mason series, where
the prosecution is often taken by surprise, but our methods assist in
the ascertainment of truth. In the United States, I gather that several
states by statute require the defence to give notice of intention to rely
on alibi, and in my submission, this imposes no hardship. Indeed I
would advocate statutory rules compelling the giving of notice of
those categories of defence which we have accepted in Scotland, but
would not require the accused to disclose before trial all matters rele-
vant to his line of defence. I was rather surprised by a recent Califor-
nian case in which the majority of the Court required the defendant to
make preliminary disclosure to the prosecution of the names of doctors
who had examined him and of medical reports when he had indicated
his intention of relying on a defence of impotence in answer to an
indictment for rape.

My personal view on verdicts is that it is useful to have three

which is the number in Scotland, though I think their scope should
not be identical with ours. Perhaps verdicts of “Proven” and “Not
Proven” (rather than “Guilty” and “Not Guilty”) would cover most
cases – with a third verdict (“Not Guilty”) reserved for the type
of case in which the suspect positively establishes his innocence.

In a Scottish criminal trial, there is no “opening” by prosecution or
defence as in England, so that the jury hear the evidence as given, not
as counsel hope that it will be given. There is often a material diffe-
rence. As in most countries outside the English tradition, counsel for
the defence in Scotland always has the right to make the closing
address. In 196418 England adopted a similar rule.

Evidence from the Accused at First and Second Hand

I may be permitted to add some observations on the admissibility
of evidence elicited from the accused himself –
a topic of special inte-
rest while the English “Judges Rules” regarding confessions are
(in 1963) under review 19 and also in the context of the American
Fifth Amendment.

In determining whether a statement made by an accused and pre-
judicial to his interests should be admitted as evidence, the overriding
principle laid down in a long series of Scottish Justiciary cases is
“fairness to the accused”. Because an accused is not compelled to give

18 Criminal Procedure (Right of Reply) Act, 1964.
19 The revised Judges Rules were issued in Home Office Circular No. 31/1964 in

January, 1964.

No. 1] PUBLIC INTEREST, SAFEGUARDS FOR SUSPECT 53

evidence at his trial,20 it is considered contrary to principle that he
should be compelled or induced to supply such evidence at second-hand
as a result of police interrogation. When a crime has been committed,
the police will, as a rule, be the first official investigators seeking
to trace the culprit. It is expected of responsible citizens that they will
assist in the detection of criminals, and the police may question whom
they please in the course of their initial investigations. If, before
anyone has been detained or charged, the person who ultimately comes
under suspicion (even as a result of his own disclosures) incriminates
himself by answers to police questioning, there is no reason in law
to exclude the statement from evidence at his trial. A statement elicit-
ed by police interrogation from an actual suspect before arrest would
not be admitted.21

A suspect in Scotland who has actually been arrested is entitled
by law to certain safeguards made specially for the protection of his
interests. He cannot be interrogated, and must be told that he is
entitled to the services of a law agent before appearing before the
sheriff for the formal “judicial examination”. An anomalous category
has also been suggested –
those who, though not actually arrested,
have been “invited” to remain at the police station while under suspi-
cion to assist the police in their enquiries. In such cases, it has been
said judicially that the courts should be more jealous to safeguard
the rights of the reluctant “guest” than in cases where a charge has
actually been made. Strictly, however, it is suggested, no person who
has not been arrested and charged can lawfully be detained “on sus-
picion” in Scotland.22 Once an accused has been taken into custody
and has been cautioned and charged, and his answer (if any) to the
caution and charge noted, the police are regarded as having completed
their official function. They are not allowed to testify as to what
an accused said in answer to questioning after arrest, and even an
invitation to speak without actual interrogation will exclude from
evidence a statement made to the police by an accused while in cus-
tody.23 If, while in custody the accused wishes to volunteer a state-
ment, there is authority for the view – which is perhaps a minority
view –
that he should be taken before a judge or magistrate for this
purpose.24

20 Chalmers [1954] J.C. 66, esp. per L. J. Cooper at p. 79.
21 Chalmers, op. cit.
22 Ibid., p. 78.
23 E.g. Wade V. Robertson [1948] J.C. 117.
24 Christie, H. C. J., Nov. 3, 1961 (unreported); discussed D. B. Smith, [1961]

S.L.T. (News) 179.

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Though my views are probably not shared by most of the profes-
sion in Scotland and would horrify the authors of the American Fifth
Amendment, I think that there was much to be said in favour of
the 19th Century Scottish practice of compulsory pre-trial judicial
examination of the accused before a judge (the sheriff), subject to the
suspect’s right to refuse to answer incriminating questions. It is not
self-evident that justice is best served if a suspect is permitted to
remain altogether silent throughout the pre-trial and trial stages of
investigation into his guilt or innocence. The accused’s statement
might well be made competent evidence, especially if he declined to
testify at his trial. If this precedure were restored, it is suggested that
the main inducement to the police to secure “voluntary statements”
of doubtful spontaneity would be removed.

In conclusion I would stress that I have mentioned only a few of
the considerations which seem to me relevant when weighing the
public interest and the interests of the suspect or accused in the crimi-
nal process. Political offences are calculated to attract the talents of
any free country’s most distinguished lawyers, and to command the
close attention of the thinking and influential section of the commun-
ity. The principles established in the trials of those charged with
political offences – where the accused may well be men of high,
though unpopular, principles, in time come to influence the criminal
process as a whole. In your jurisdiction as in that of my native
Scotland great constitutional issues may, through criminal prosecu-
tions, be fought out in the courts. Those who hold the balance of
public and private interest are entrusted with a most weighty respons-
ibility. Perhaps no less weighty is the responsibility of the law teach-
ers of Quebec and Scotland, whose privilege it is to prepare them for
their task.