THE

SCOTTISH LAW MAGAZINE

AND

SHERIFF COURT REPORTER.

OBSERVATIONS ON THE ADMINISTRATION OF CRIMINAL LAW IN SCOTLAND.

BY HUGH BARCLAY, Esq., LL.D., SHERIFF-SUBSTITUTE OF PERTH.

THE substance of the following paper was delivered by Dr Barclay to the "Juridical Society" and the "Legal and Speculative Society," both of Glasgow, and to a good number of the Legal Profession, as well as Justices of the Peace and other Magistrates, who were specially invited, within the Hall of the Faculty of Procurators of Glasgow, in the course of last month; and with the consent of the learned Lecturer, we have the pleasure of transferring it to our pages:—

The principles which regulate the administration of criminal law involve matters which deeply affect the Commonwealth. Matters of civil interest go little beyond the range of the individuals immediately concerned; but crimes enter deeply into the social structure, and more or less affect each member of society. The rules of evidence, too, involving, as they often do, proof by circumstances the most minute, generally demanding the closest scrutiny and the nicest balancing, require the utmost stretch of the philosophy of law or jurisprudence in its highest walks.

The grand problem to be solved, the standard to be realised, is that no crime should remain undetected, no criminal escape punishment, yet no innocent person should suffer unmerited punishment. To obtain these somewhat conflicting ends the machinery of the criminal law is intended. On the one hand there ought to be the steady working of the machine, so as to embrace the whole work and leave none undone. But, on the other hand, its movements ought to be so safely fenced off as to prevent the casual passer-by from being drawn within its vortex and injured. Sometimes the law has inclined to the one side, and at other times to the opposite. A common axiom is often repeated, "better that one hundred guilty persons pass unpunished than that one innocent person should suffer." Such, however, is the language of exaggeration. It would be a greater libel on the government of a country that such a proportion of guilt should pass unpunished than that even the unit of innoence in the imperfection of all human tribunals should suffer. It has been well observed in the strong language of Junius, that "compassion to an offender who has grossly violated the laws is in effect a cruelty to the peaceable subject who has obeyed them." The standard of perfection would of course be where no one guilty escaped and no one innocent suffered. It is not a matter of arithmetical proportion thus nicely to balance justice against its opposite, and so exact an order of justice is marcely expected in mundane systems, in their nature perfect. Not unfrequently an opposite tendency is

found in criminal law. Some species of offences become dangerously frequent in occurrence, or they are considered not of easy detection or not to admit of full evidence. To meet such a state of matters the powers of criminal justice are greatly intensified; the most summary, nay, despatchful procedure is authorised; unprofessional magistrates are substituted for the trained judges of the land; one witness is declared sufficient instead of the usual complement of two. All record of evidence is dispensed with, nay, prohibited; the punishment is greatly increased; and to complete the anomaly, where such procedure is so apt to lead to rash and hasty judgments, all appeal or review is strictly prohibited.

An augmented calender of offenders brought to justice may be quite consistent with an actual decrease of offences. It may have, and often has, its origin in greater police vigilance, or increased legislation creating offences which fall under the class of mala prohibita. There is often a danger in thus drawing the legal net too tight, and spreading its meshes too wide. It may in this way with ease catch the tiny moth of the juvenile delinquent feloniously stealing a turnip, but it all the more enables the big blue-bottle fly of a mercantile swindler to dash all scaithless through the convoluted mazes of the legal expanse.

Our object at present is briefly to take up a few points in the administration of criminal law in Scotland, especially where it contrasts with that of England, as affording interesting questions as to the side on which the balance of justice or expediency inclines. The student of international law must discover in the practice of both countries the common object of upholding the law and punishing its violators, and at the same time providing many safeguards to protect the innocent and to afford to the guilty a fair trial. Whilst the end in both countries is discovered to be the same, the means are often diverse, and the national characteristic of the people may easily be discovered in the peculiar forms of procedure. In tracing the history of the criminal law the student will discover the state and progress of society at different periods, and can trace the struggles of the people with their government or feudal superiors, to obtain the fair administration of law and justice.

The first point we notice is the important difference between the English and Scotch law in the matter of the Prosecutor.

In Scotland we have, from the highest court of Justiciary to the local courts of police, a public prosecutor. The Lord-Advocate is commander-in-chief of this legal array, to whom all others are subaltern and subordinate. The powers of the Lord-Advocate are civil, criminal,

Each court has its Procurator-Fiscal, who at the public expense investigates and prosecutes all matters of a criminal nature. In England, except in some few cases of murder, or great crimes forming the class of "State Trials," the person who is the object of the crime is taken bound to prosecute, at his own risk and cost, the criminal at whose hands he has suffered. Thus the unfortunate victim of crime is in turn made the victim of law, and compelled to vindicate public justice at his own individual expense. At one time (if not still) it was not unusual for the culprit and his sufferer at once to be locked up in the same prison, the one to prosecute and the other to be prosecuted at the next assizes and gaol delivery. Our southern neighbours have ever been slow to borrow from the north any legal institution or formula, but recently they have gradually stolen, without any acknowledgment, some of our most valued laws and customs, disguising them under some anglicism, so that the trade-mark of identity might be obliterated. The Crown in England now more frequently volunteers to prosecute, and the judges have the power, very frequently exercised, of ordering the costs of the prosecutor to be paid from the county rates. There appears every reason to believe that in a few years the institution of public prosecutors in England will become a necessity, as already it has become in general favour with the legal profession in the south.

administrative, legislative, nay, even military, and of quickness of revenge or the magnifying of small offences. most extensive and diversified character. The Attorney- In Scotland we feel satisfied that where revenge can be General of England in authority is but as a distant gratified, not only without cost, but where the offended planet to this sun and source of power in Scotland. Sir party is even paid by the public exchequer for his testiArchibald Alison thus treats of the high office of Lord- mony, there is a manifest premium to inform on trifling Advocate: "In short, the theory or legal fiction is, matters, which had better never have been heard beyond "that by the commission of every crime, however incon- the parties themselves. Where two parties have quarrelled "siderable, in Scotland, the Lord-Advocate acquires a jus over their cups, whilst discussing some important and "quæsitum in prosecuting it for his Majesty's interests as vexed question in church or state, with the known perfer "the supreme guardian of the realm in the chastisement | vidum ingenium Scotorum, they are apt to forget the exact "of offences. The reason of expedience which supports rules of dialectics, and clenching their arguments to"this fiction is that whereby we have acquired our admir- gether with their fists, they plant their conclusions "able system of prosecution, extending over the whole on each others faces, and thus phlebotomise instead of country, and practically found to be more beneficial philosophise. The next scene in the drama is the race to "than any other which the wit of man has ever devised the fiscal or nearest police constable. He who reaches "for the suppression of crime."-(2 Alison, 85.) first the goal is the injured sufferer and the witness in the subsequent prosecution, whilst he of heavy weight and tardy heels is prevented from giving evidence to the contrary. In this and similar modes we feel confident that our country has obtained a name we do not deserve for irascible tempers and unrestrained fists, and thus our assaults and breaches of the peace have formed very ugly columns in criminal statistics. Often, when passions have cooled down, the informer is desirous, when too late, to have the affair quashed. When, at an interval, he gives his testimony, it contrasts greatly with the exaggeration of his information and precognition. He often takes a considerable share of blame to himself, and we have known cases where actually he has volunteered to pay the fine inflicted on the person he so rashly gave up to public justice. A majority of those cases, if left to the parties themselves, would have been most amicably settled when they next met. The effect of such hasty proceedings is likely to place enmity and deadly feud for life between old friends and neighbours, and the man who is obliged to take his place at the bar where thieves and rogues do congregate, even though acquitted, loses respect in his own eyes and caste in the estimation of hi neighbours. In the same way there is a strong tendency to obtain some mere question of civil right of property of defamatory charge on character tried at the public ex pense through some charge of malicious mischief, assault or breach of the peace. The highly judicious step re cently introduced of paying fiscals by salaries has remove the very common insinuation, that they had a direct in terest to encourage rather than to decrease crime. Never theless there exists the same desire in the public t claim their protection where it costs them nothing, an unless every paltry case is taken up, these public officer are unjustly exposed to the charge of neglect of dut or partiality in its discharge. One check has ofte suggested itself to us, that the party injured and in forming should not be paid for attendance to give tes timony unless ordered by the judge, and that in case not a few, where the charge is proved to be wholly un founded, the informer, and not the public, should b compelled to pay the expense of the fruitless prosecution Under this head, we have been long of the opinion, s

The absence of a recognised public prosecutor has led in England to the introduction, in numerous statutes creating offences of a minor character, of clauses authorising any one to prosecute. This has given rise to a tribe of most dangerous characters-common informers-legal Ishmaelites, whose hands are against every one and every one having his hand against them-vultures of the law, whose food is crime, whose occupation is first to entice into offence and then at once become informer, prosecutor, witness, and receiver-general of the penalties. Unfortunately, in passing British statutes, it is often forgotten that this section of the united empire has established public prosecutors, consequently the common informer is the only recognised prosecutor of many offences against the general weal, and the punishment and consequent restraint of which would be attended with the utmost advantage. Our procurators-fiscal most justly refuse to de-ably maintained by Lord Brougham, that in all ming grade themselves to the ignoble rank of common informers. The people of Scotland are, generally speaking, too honest to become spies and informers on their neighbours, and therefore the statutory sword of justice has often been allowed to rest in the scabbard of the statute book whilst on the other side of the Tweed it is in most fierce display. We may give for an example the law known as the Forbes Mackenzie Act, for the wise regulation of publichouses, which in many places is a dead letter, because of no recognised prosecutor to enforce its statutory

enactments.

But we are not prepared to argue that our system of public prosecutors is perfect and free from objection. In England, where the cost and trouble of prosecution rests on the offended party, there is no provocative to

offences, where pecuniary penalty is the recognised punish ment, the accused party should not be compelled, bu should have the privilege of volunteering his evidenc subject, of course, to cross-examination. It is a gro anomaly in justice, that in a civil suit, founded on a assault, the defendant may give his evidence, though th issue may be damages to an indefinite amount, yet he excluded from such privilege when prosecuted criminally though the amount of the penalty seldom exceeds £ and more generally is below 40s. Justice invites ligh from every quarter, and it is only by the patient discr mination of evidence that a magistrate is satisfied that h has obtained full information to enable him to perfor his functions aright.

Before leaving the subject of the public prosecutor, w

must allude to the important question of investigation in cases of sudden death. In England this is done publicly by the coroner's inquest. In Scotland this is accomplished privately by the fiscal, under superintendence of the sheriff. The superiority of these modes, the one over the other, has recently been made the subject of much discussion. The coroner's inquest has long been complained of as an abuse, and even in the time of Shakspere afforded material for jest to that master mind. The coroner and his officers being paid by fees have an interest to extend the field of their operations. Nothing can be more harrowing to the feelings of a bereaved family, one of whose members has, by a dispensation of providence, been called in an instant hence into eternity, than to have an inspection of the body of their relative, and a public examination of all the household reported in the newspapers, and sent abroad throughout the kingdom. In these times, when the whirl of business and excitement in every department sends the blood with accelerated action through the system, hardening the heart and softening the brain, seldom a week elapses in large communities but some one has in a moment been withdrawn from this busy world. Were the investigations confined to cases where there existed grounds of suspicion of death by unfair means, they might be upheld as well adapted to obtain the utmost light on the matter when the circumstances are fresh on the memory, and more with the In absence of a public prosecutor the law of England view of shielding innocence from unjust aspersions than has provided another safeguard. An accused party, before discovering actual guilt. But where a qualified medical he is sent to a special jury, has to pass the ordeal of a practitioner certifies the cause of death to have arisen grand jury. The indictment is laid before them, and the from natural causes, then such an ordeal of inquiry is witnesses in support thereof examined, but without the worse than useless, it is hurtful both individually and presence of the accused, and in private, the jury being not socially. From not an unfrequent boasting of the great less than fifteen nor more than twenty-three. If this periority of the English coroner's inquest over the preliminary jury find a prima facie case they endorse "a ystem of fiscal examination in Scotland, and especially true bill" on the parchment. If not satisfied with the er a well-known trial for murder by poison from the proof they ignore the bill, and the prisoner is liberated West of Scotland, where it was said that the want of such without trial. This machinery is obviously faulty. This public investigation was much felt, instructions were jury, on an ex parte statement, and in private, and in ed by the Lord-Advocate which impose on the fis- absence of the accused, actually try him. Their finding cais the same extensive duties, if not even greater, than of a "true bill" must inevitably prejudge the case, and are devolved on the coroner's inquest in England. These prejudice the special jury. Again, if the bill be ignored, rules are embodied in general orders by the Lord- the public are in nowise informed of the grounds thereof. Advocate, of date 25th August, 1858, and 12th Decem- The objection of privacy is here as strong as it is to the ber, 1859. By these rules the fiscal is instructed to make fiscal in Scotland abandoning a case on precognition or quiries-1st, In all cases of death from accident; 2d, without a commitment for trial. In both cases the invesall cases of sudden death; and 3d, In all cases of dis- tigation is in private. In England it is the act of many every of a dead body. After inquiry, which is obligatory by a very heterogeneous and unskilled class, done in in all these classes of cases, it rests with him whether he haste, and without any record of the evidence whereon Mali have a medical report or take a formal precognition. they proceed. In Scotland it is done by one person, but If these instructions as to all cases of "sudden death" responsible and skilled, and transacted at leisure, with a were carried out to the letter, the system would become record of evidence subject to the consideration of the tolerable and the expense excessive. Even under the sheriff, crown counsel, including the Lord-Advocate, and Fained interpretation the orders have received in prac-in some cases even the Secretary of State. It is not to be te the expense imposed on counties has become a subject of to trifling importance, and of late has excited much comderation.

persons of education, well remunerated, and, above all, of tried probity, who have the entire confidence of the public. In Scotland one defect is, that if the investigation terminates in no proceedings against any individual, then the grounds on which this determination has been taken are unknown. To avoid this it is of frequent occurrence that persons are put on their trial under a charge of culpable homicide, sometimes even of murder, when it is notorious there is no expectation of obtaining a conviction. But the person is put upon his trial merely to satisfy the public by proving his innocence. In such cases it is openly stated that this harsh proceeding has been taken because of our having no coroner's inquest. To counterbalance this there exists in England the still more cruel remedy, that a person who has never been indicted, defended, or tried, is by the coroner's jury found guilty of wilful murder or manslaughter. The whole evidence is published and commented on through the public press. It is impossible that this person can subsequently have a fair and impartial trial on the charge of which a jury have already found him guilty. On the whole, in some cases of death under suspicious circumstances, an inquest immediately on its occurrence might be found of advantage in Scotland, but this ought to be left to the discretion of the authorities, so as to prevent its abuse.

The only substantial distinction between the systems of the two countries is therefore publicity. In England the inquiry is made in public, and every person who can ve information is invited to do so. The witnesses are examined on oath. In Scotland the inquiry is made a private, and the witnesses are not examined on oath, les in very rare instances where a person is suspected concealing the truth. Parties are no doubt free to vat on the fiscal and give information, but such is a very al occurrence. In England cases have been known The the publication of the evidence has induced persons to and to the coroner valuable information on the subject of inquiry. But on the other hand, it is equally true that timid persons will more readily give full information an delicate matters when examined in private. In this ty, doubtless, the discretion entrusted to the Sheriff, ather to the fiscal, is very great and uncontrolled by public. This requires the placing in these positions

wondered at that there is now a strong call for the abolition of grand juries as worse than useless. The abolition of this initial ordeal in England is sure to be followed by the institution of officers analogous to our public prosecutors.

The next subject to which we allude is the important subject of bail. The rule in Scotland is, that all crimes which are in name capital are not bailable except with consent of the Lord-Advocate or his deputes. The catalogue of capital offences is most Draconite, and embraces the great portion of offences. There are as many as thirty distinct criminal offences in our law which are not bailable at any amount. Of this number theft, with thirteen distinct aggravations, is amongst the number of non-bailable offences.

Although, from the humane influences of modern policy, capital convictions are never asked or carried into execu tion, with the exception of some cases of aggravated murder, yet the rule as to bail still exists. Thus, a person charged with three separate acts of theft, it matters not of how small value, or who has been twice previously

convicted of theft, and though the assizes may be distant and the proof nowise strong, he cannot for bail of any amount claim his liberation. The amount of bail in the few cases which are bailable is settled by the sheriff in such cases as he can try, and by the justiciary in the higher class of crimes, or as they are termed the four pleas of the Crown-murder, rape, forgery, and wilful fire-raising. As regulated by the statute 39 George III. c. 49 (1799) the amount is fixed as follows:-A nobleman not more than £1200; a landed gentleman, £600; any other gentleman burgess or householder, £300; and all inferior persons, £60. The prisoner, under the statute 1701, c. 6 (the Habeas Corpus Act of Scotland), may force on his trial by what is technically called "running his letters;" but the privilege is attended with considerable expense, and with some management the trial can be postponed for 140 days after intimation has been made under the statute.

infliction for the same offence. Take a case which has not unfrequently occurred in our own experience. A person has been convicted of theft by a jury, and has had a sentence of three or six months imprisonment. After an interval, it does not matter how long, it may be years. he is charged with another theft, but so trivial that in tried at the police court, some ten days' imprisonment might have been meted to him. Now, however, because of the previous conviction, he is transferred to the justiciary, or to the sheriff with a jury, and receives sentence of penal servitude for several years, or imprisonment for upwards of twelve months. The argument for this proceeding is, that the first punishment had failed in its corrective power. But the question remains whether the fault was not in the punishment rather than in the person who endured it; and it may be farther expected that if it failed once it was as likely to prove a failure the second time. One of the greatest fallacies in criminal procedure is that of short imprisonments. There are several instances of persons sentenced to imprisonment for upwards of the hundredth time, and the greater part of whose lives have been spent at a sort of game of "hide

days in and three days out. This is a perfect mockery of justice, and it would be mercy to such persons to retai them continually under restraint.*

The mode of stating and proving the previous convic tion is still more objectionable. The conviction is mad part of the indictment and proof, to be decided on by th jury. In England it is only proved to the judge afte the jury have returned their verdict of guilty, and wit the view solely of regulating the amount of punishmen to be awarded. It is true that both the bar and th judges in Scotland are in use to tell the jury that they are to endeavour to banish from their minds the fac of the previous convictions until they have made up thei verdict on the offence specially charged. It is feared however, that the fact so prominently paraded does, mor or less, affect jurors, and illustrates the axiom of " givin a dog a bad name." The feeling should indeed be in th opposite direction. It might be supposed that whilst person once punished would be careful to avoid fallin again into crime, on the other hand that such a perso might be open to suspicion by the officers of police, an to be more easily fixed on as the likely perpetrator new crime.

In England the quarter-sessions of counties and recorders of burghs have extensive jurisdiction, even to the extent of transportation, or now of penal servitude. In Scotland, whilst sheriffs have nominally the power of capital sentences (and which was exercised up to the be-and-seek" between the jail and police magistrate-thirty ginning of the present century), they never could award the punishment of transportation, or now of penal servitude. For the highest crimes tried by them, imprisonment not exceeding two years, and seldom exceeding one, is the limit of their criminal powers. This leads to great public detriment. Criminals are tried by the sheriff when it is obvious that the sentence is only to give the culprits a degree in the art of crime, and to advance their progress towards the Justiciary, or they are kept in prison, at the public cost, for it may be six months until the circuit comes round. This is attended with many evils. It is of the greatest consequence that punishment follow closely upon crime. After the lapse of months, not only is evidence lost by death and emigration, but still more so by weakness or confusion of memory. The evil would be adequately met by conferring on sheriffs the same power of punishment as is possessed by the quarter-sessions in England, and having all cases of great crimes speedily tried before the High Court in Edinburgh. In this way the circuit courts might be greatly modified, or perhaps entirely abolished. According to the present system it depends on the accident whether the crime has been perpetrated at a distance from, or nigh to, the time of a circuit being held whether the criminal will be tried before In the new Coinage Act for the United Kingdor the sheriff or the justiciary. Thus there exists the seeming 24 and 25 Vict. c. 99 (1861), the English practi inconsistency of cases of comparatively small importance is introduced into Scotiand, and it is provided "that th being tried at circuit, and punished with a short imprison-offender shall, in the first instance, be arraigned upon ment, whilst at another period of the year, criminals charged with grave offences and with many aggravations, are tried before the sheriff, and visited with sentences wholly inadequate to the crime. Now that railways are spread throughout the whole land, the expense attending the trial of the few grave cases at Edinburgh would be much less than keeping witnesses and jurymen for days at circuit towns, where a mass of cases of grave and minor importance are hastily tried, often by one judge. It is a singular fact that the most distant portion of the kingdom (Orkney and Shetland), together with the nearest portions (the three Lothians), are attached to no circuit courts, but have their criminals tried in the High Court at Edinburgh. On the other hand, there are several towns, within a few miles of Edinburgh, the criminals from which are sent to a distant circuit town for trial, after the lapse of many months.

There is a very important distinction between the practice in England and Scotland with reference to previous convictions, both in their effect on the punishment and on the proof. We greatly doubt the justice of previous convictions being allowed at all to aggravate crime. If a person has suffered punishment for an offence, it seems unfair that he should be subjected to a second

much only of the indictment as charges the subseque offence, and if he plead not guilty, or the court order plea of not guilty to be entered on his behalf, the ju shall be charged, in the first instance, to inquire concer ing such subsequent offence only, and if they find hi guilty, or if, on arraignment, he plead guilty, he sh then, and not before, be asked whether he had been pr viously convicted, as alleged in the indictment, and if answer that he had been so previously convicted, t court may proceed to sentence him accordingly. But he deny being so previously convicted, or stand mu the jury shall then be charged to inquire into such previ conviction or convictions." It is trusted that the int duction of this procedure will lead to the rule bei generally adopted, and that in all cases jurors will h their attention confined to the special offence charg without reference to any previous conviction against accused.

(To be continued.)

sentence of imprisonment for twenty days for the 110th time, the of There is at this time a young woman in Perth prison undergoing being the stereotyped one of being drunk and disorderly,"