29 DECEMBER 1849, Page 9

ADMINISTRATION OF CRIMINAL JUSTICE IN SCOTLAND.

LETTER III.

TO THE EDITOR OF THE SPECTATOR.

SIR—! shall now complete my promise of noticing seriatim a few of the moat glaring instances in which accused parties in Scotland are likely to be deceived into neglect of their defence or misapprehension of their legal rights by the friendly maxims and promises held out to the subjects of criminal investigation. These are not few in number, but I shall restrict myself to such as unprofessional persons can easily understand.

1. " 7'he prisoner's remand before commitment for trial is a proceeding for his benefit." This might be very true if the prisoner were in general allowed to know the particulars of the case against him; if the witnesses were examined in his presence, and if he had an opportunity of cross-examining them; if he were allowed legal assistance from the commencement instead of the end of his prosecu- tion; and if in place of a private inquisitorial examination, made by a magistrate, at a time when he is ignorant of the facts alleged against him, he were fairly made aware (as he is in England) of the facts to which that attention ought to be turned. As it stands, and while none of these conditions are complied with, the pretext is as shabby a one as can be conceived. In fact, the prisoner is detained because he has been arrested on suspicion merely, and his detention and defence are things as opposite as the poles of the magnet. My own conviction is, that the detention is often unnecessarily prolouged in order that the Procurator-fiscal may have time to complete his case.

The same delay probably sometimes occurs in England ; but with this difference, that the case when completed is one perfectly known to the accused, and to which he has had an opportunity of replying on the spot. In Scotland, it is a sacred judicial secret, from which he and his counsel are carefully excluded even to the last, bating always some glimmering loopholes, frequently only transmitting a very delusive light. 2. "No man is bound to criminate himself." Surely this ought to prohibit all questions asked by zealous and interested interrogators before examination in the presence of a magistrate. These persons (who are either parties or police) are the least likely of any to give a correct report of such dialogues; and the mischief of placing in their hands the power of putting such questions is obvious. As to partial testimony every one thinks he can judge. Of the value of police testimony the profession know they can form a proximate opinion. It is a current story of one of the most eminent and witty occupants of judicial station, that he once directed a jury to the effect that for his part he never believed the evidence of a police-officer as to previous character, unless corroborated by at least two respect- able witnesses. Of course no one believes the imputed charge; but its reception, and the relish with which its appositeness is recognized among practitioners, will serve to indicate the general value put upon such testimony. If a police-sergeant be a doubtful witness as to "character," is he likely to be much better as to "con- fession"? In the one case, indeed, he is only giving an opinion, which he is in- terested in giving as strongly as he can; in the other, he is supposed to be speak- ing to fact. But how delusive these suppositions are! For this fact is of no worth unless preceded by his statement upon oath, that he sufficiently and dutifully warned the prisoner of the danger of saying anything even in his defence. His interest here therefore is doubled. Some very able ob- servations appeared recently in the Times, disputing the strict propriety of those repeated warnings administrated by magistrates to criminals on the danger of their making judicial observations relative to their case. Perhaps to some extent I sin inclined to agree with these observations. What an accused says voluntarily, previous to or at the time of his arrest without question or inquiry, may be very proper evidence. But I am sure not only the Times, but every well-judging mind, will concur with me that no statements made by the panel, after arrest and ac- cusation, should be adduced against him until he has had an opportunity of hear- ing the details of the accusation and being confronted with the adverse witnesses. To put a man through a course of judicial interrogatories, with the grounds of which he is unacquainted, is to subject him to something little better than the question, (something quite as secret); and to bring his answers as evidence against him on trial is—let the public answer what. I for one shall never forget the words of a great jurist, publicly spoken, that with reference to the value of these admissions it should be remembered that no doubt, and not unfrequently, even innocent persons were, by the urgency of a sudden accusation, joined with a false, and in his experience, frequently fatal cunning, led to account for their position by a history wholly untrue in its particulars. And if we estimate the effect which fear exercises even among the best of us, we may receive this as one of the wisest of judicial remarks. 3. " The Magistrate should warn the prisoner that what he is to say may be used against him." So runs the text; but what adds the commentator? (Alison IL p. 564.) "But these are not essential solemnities, which must be proved to validate the instrument, or whose want may be pleaded as a fetal defect." This requires no comment except that which has occurred to myself in practice, that while the trained police witnesses are always ready to swear that all proper warn- ings were given, " omnia rite ac solemniter acts," I have known the magistrate boggle shrewdly, and even decline to swear he gave such warning. You will recol- lect what is the worth of police evidence when their own attention and correctness are concerned. 4. " The prisoner's declaration is evidence against him, but not in his favour." This certainly is not at first sight a friendly statement; but its hostility is shrouded under the garment of the last maxim, that no one is bound to criminate himself. The prisoner is not bound to speak, but if he says aught it will be evi- dence against him. What he does say is taken down, and at his trial is read by the name of " the prisoner's declaration." The question is, when and how this declaration should be taken ? It is taken by a magistrate in presence of at least two witnesses; but at the time of "emitting it" the accused knows no more than that he is accused of a certain crime, perhaps not even that; for so private are these interrogations that, never baying been either Sheriff, Bailie, or Town-Clerk, (and agent's counsel being excluded from these lesser mysteries of the law,) I cannot speak quite positively. There is a Sheriff, however, who has given the account of the way in which a Scottish declaration is taken, so much better than it ever can be again, that a transcript from The Antiquary will put the reader in possession of the whole ceremony. " Bailie Littlejohn," said the mendicant, (after some preliminary questions,) " if it be your honour's pleasure, well cut a tang tale short, and I'll just tell ye I are no minded to answer ony o' thae questions—I'm ower auld a traveller to let my tongue bring me into trouble." " Write down," said the Magistrate, " that he declines to answer all interro- gatories, in respect that by telling the truth he might be brought to trouble." Na, na;' said Ochiltree, " I'll no hae that set down as ony part o' my an- swer; but I just mean to say, that in a' my memory and practice I never saw ony glide come o answering idle questions." "Write down, that being acquainted with judicial interrogatories by long practice, and having sustained injury by answering questions put to him on such occasions, the declarant refuses-

" Na, na, Bailie," reiterated Edie; " ye are no to come in on me in that gate neither."

" Dictate the answer yourself, then, friend," said the Magistrate; " and the clerk will take it down from your own mouth." " Aye, aye," said Edie, " that's what I ca' fair play; I'se do that without loss o' time: sae, neighbour, ye may just write down that Edie Oehiltree, the declar- ant, stands up for liberty. Na, I maunna say that neither; I am nae Liberty boy; I hae fought again them in the riots in Dublin; besides, I have ate the King's bread mony a day. Stay, let me see;—aye, write that Edie Ochiltree the Blue- gown stands up tbr the prerogative, (see that ye spell that word right, it's a lang ane,) for the prerogative of the subjects of the land, and winna answer a single word that sail be asked at him this day unless he sees a reason for't. Put down that, young man." Here, then, we have a fair sketch of the difficulty to which even an innocent person is subjected by this process. I think, however, fact will enable me to out- do even the colouring of romance, and will show that not only all prisoners not Edie Ochiltrees, but that persons even more cunning than he can be deceived by the plausible offers of the law.

In several cases a paper purporting to be the prisoner's declaration has been allowed to be read as evidence to the Jury, although in point of fact the panel had remained silent. So eminent a counsel as the present Dean of Faculty long ago objected to the production of such a document, not because it admitted anything, but because it enabled the Crown to invert the maxim " No man is bound to cri- minate himself," by giving the prosecutor an opportunity of animadverting on the prisoner's " silence," or in other words, of converting the exercise of the preroga- tive of the subject, so strictly upheld by old Ochiltree, into matter of unfavourable comment for the Jury. The present system of taking declarations is wholly abominable. They are mere man-traps, and should be prohibited for the same reason that these are declared illegal, namely, that they sometimes catch the in- nocent. I would plead the case no higher—no higher than this, that under the present system, and in a case dependent on circumstantial evidence, a really in- nocent person may be hanged in consequence of something in his declaration, from which, had he known the fatal evidence to be adduced against him, a word of ex- planation would have extracted the sting. I have quoted from the Antiquary; let me refer to another well-known case, that of Meg Nlerrilies in Guy Mannering. The chief evidence against Dirk Hatterick will be found to be his own foot-marks. The same evidence would have convicted the Gipsy; and her obstinate silence when examined, would have been eloquently commented upon by the leading Crown lawyer of the day. All the forensic skill of Pleydell himself could not have prevented Meg Merrilies from being hanged for the murder of Harry Ber- tram!

5. "No evidence of previous character is submitted to the Jury."

6. " Until impeached by evidence, good character is presumed." These two maxims are the Castor and Pollux of law. But as thse deities were only celes- tial by turns, so the maxims will be found to participate in the celestial dignity of truth and the earthly infirmity of practice. The prisoner is assured that no evidence of his previous conduct or character shall be led, and that in the ab- sence thereof it is quite unnecessary for him to set up a good one—that will be presumed in his favour. But how surprised, after perusing such a theory, would an intelligent foreigner be to find that not only previous convictions, bat verbal testimony of the loosest kind, (bawds, thieves, police,) is invariably ad- duced before the Jury have returned their verdict. No doubt, the Jury are ad- jured for the defence, and directed by the Judge to exclude such testimony from their minds as reserved for the Court. But what a parody is this ! It is like putting a candle into a study and telling the occupant he is neither to put it oat, nor shut his book, nor read by it.

It may be a question, and a difficult one too, whether evidence of this kind ought not always to form part of the Crown case. But while the present practice inculcates on the accused that care of his character is unnecessary, and that the Crown takes charge of his reputation, it is surely almost a crime to burke his chance of escape or mercy by so unworthy a manwuvre.

7. The law of Scotland provides" counsel and agents for the "poor pri- soners," (pauperes.) " Poor " indeed ! This is "the unkindest cut of all," add- ing insult to injury. I have been counsel for, I think, more than two hundred of these unfortunates, accused of all crimes from murder downwards, and can perfectly understand and appreciate the peculiar "providence" of the Scottish law in this respect. It consists generally, so far as concerns the accused, in the appointment, at the last moment of exigency, of the youngest and least expe- rienced counsel, at the instant the trial commences. This gentleman is forced to undertake the defence of a case of which he is entirely ignorant, and upon his conduct of which his future reputation and fortune may depend, not only without fee or reward, but even without preparation. As to agency, both the prisoner and his advocate will be very much misled if they expect anything from that quarter. I can say for the agents, that they are generally indefatigable in the performance of their duties; though they, like the counsel, are invariably chosen from the bottom of the list, and though, unlike the former gentlemen, they have not even the slightest chance of gaining a professional reputation. Nevertheless, I have seldom heard any more urgent complaint made by them than the limited time which is afforded them efficiently to perform their duties. This want of time, however, for the cooperation of counsel and agent, which effectually defeats the promise of the law, and which a very simple arrangement would obviate, is the work of a practical cooperation of Crown-officers. It is the duty of the Sheriffs to appoint the agents for the prisoners. It is the privilege of the prisoners to have their indictments served upon them at least fifteen days be- fore trial. It is their natural expectation that they shall be visited by the ap- pointed agent at least so soon as their indictments have been served, so that their counsel may be timely informed of the facts of the case. Now, what is the fact ? It is indisputably this, that while advocates are selected at the moment to meet Crown counsel of high standing, and prepared to the teeth with a care- fully concealed case, the appointment of the agents required for the instruction of the former never takes place earlier than four or five days before the commencement of the Circuit. Now where, as in Glasgow, the attention of four or five agents and six or eight young counsel is divided between from seventy to a hundred cases, it forms a fair proposition, not whether the guilty are not always convicted, but whether innocent persons must not be too often wrongly condemned. If you will keep in remembrance the important point of fact that a majority of one in the jury suffices in Scotland to convict of the moat serious crimes, you will, I confidently trust, be of opinion that I have made out the case sought to be established in these letters,—to wit, that the criminal law or rather the practice of criminal jurisprudence in Scotland is by no means so perfect as is usually vaunted, and that it contains positive faults, against the smallest intimation of which the reforming legislators of any other and more extensive code should particularly guard. It is sufficient for Indicator to point out their existence. The remedy will perhaps be applied in more powerful quarters.

1 am, for the third and last time, your obedient and obliged,

INDICATOR.

P.S. The practice of returning the verdict by a bare majority, the absence of a court of appeal, and the verdict of " not proven," are all doubtful features in our system, but cannot be properly considered within the limits of a letter.