Search just our sites by using our customised search engine

Unique Cottages | Electric Scotland's Classified Directory

Click here to get a Printer Friendly PageSmiley

The Criminal and the Community
Part III - Chapter I - The Machinery of the Law

TO the majority of people the living representative of the law is the policeman. It is his duty to protect the citizens from evil-doers, and to arrest offenders. He is the subject of a good deal of chaff, but his position is generally respected ; and although men get into the force who by temper and experience are quite unsuited for their work, the great majority discharge the duties laid upon them in a manner that is surprisingly satisfactory, when the demands made upon them are taken into account. They are supposed to have a knowledge of the law, and for practical purposes they must know something of medicine in order that they may give first aid to the injured; they are expected to be able to answer questions of an exceedingly miscellaneous nature when asked by the passing stranger; and they require to be always cool and clear-headed, to be ready for any emergency, and to have a temper that nothing can ruffle. If they have enough of these desirable qualifications to satisfy the authorities they may receive a salary for their services rather better than that given to the unskilled labourer.

That efforts are made to obtain good men for the post is undeniable. That these efforts are always so enlightened or so successful as they might be is not so certain. In Glasgow, for instance, a standard of height is set up which excludes the vast majority of Glasgow-bred men from this occupation. In some parts of the country men go to flesh and bone, and they are big-framed and brawny; but this is not the case in the town. Yet a man’s height offers no presumption of his fitness for any position involving the exercise of judgment. A minimum 5 ft. 6 in. includes all the 5 ft. 7 in. and 5 ft. 8 in. men; and a minimum 5 ft. 9 in. excludes all these and limits the choice of candidates very much. It is not the best men to act as guardians to the public peace that are sought, but the best men amongst those of a certain height; and this is bound to lower the standard of efficiency. Indeed, the higher the standard of height the lower the standard of efficiency will tend to become, because of the limitation of choice implied.

The police force is a civil force and ought to be entirely under the control of the citizens through their representatives, but this civil force is not formed on any conception of civic needs. It is organised on a military model, and subject to inspection by a military man on whose reports to the Secretary of State its efficiency is decided. Nobody seems to think of asking what such an inspector knows of the needs of the district whose police he inspects. His training enables him to tell when a man carries himself well and turns out his toes nicely, and the ability of the police to do so is aided by their going to inspection in new uniforms; so that the inspector sees a number of men in new clothes, and decides by their bearing their fitness to act as policemen. This condition of things enables a man to earn a salary who might otherwise be unemployed, and if it stopped there the absurdity might be worth the money; but when a police force is to be judged and their grants to be graduated, not according to their knowledge of the work, but according to the ignorance of their inspectors, there is likely to be trouble. If the police require to pay more attention to the inspector who can stop their grant than to representatives of the citizens in whose service they are supposed to act, it is a bad thing for the police and for the citizens.

Every district has its own peculiarities, not observed by those who live there because of custom, but noticed by strangers and sometimes disapproved by them. It is an advantage, therefore, that those set in positions of authority should be acquainted with the customs and manners of the people among whom they live. A policeman will discharge his duties with more comfort to himself, more credit to the force, and greater benefit to the community if he knows those in the district in which his duties lie. Unless he is in touch with the law-abiding elements therein, unless he knows them and has their confidence and support, in many cases he will not be in a position to distinguish between conduct that is harmless and conduct that is criminal. For instance, it is well known that professional thieves depend largely on their coolness and daring for their success. If “ thief ” were written all over them they would starve, and they only earn their living because, to those who are personally unacquainted with them, they are not distinguishable from honest men, The policeman knows this; and if he sees a person coming out of business premises long after business hours, he quite naturally questions that person by look or by word. If he does not know whether the person has a right to be there he may make a fool of himself, either by arresting a man who has had legitimate business on the premises or by letting a thief get away. He is on the horns of a dilemma in which he should not be placed.

Again, supposing complaints have been made about lads loitering around certain closes or corners, and the policeman has been instructed to have this stopped. If he knows the inhabitants of his beat he is able to discriminate between those who have a certain right to be about the place and those against whom the complaint is directed. If he does not know them he may reprimand or arrest the wrong people altogether, causing trouble for himself and widespread irritation that need never have been aroused. Those who have been affronted or injured do not take his difficulties into account; and it may be that those who are responsible for placing him in what is, after all, a false position, have not sufficiently considered the evil results caused thereby.

The military habit of assuming that every man is like every other man, and shifting people about like so many dolls, has its disadvantages in civil life. It does make a difference whether the man set to do a certain duty is acquainted with the conditions in which he is placed or is ignorant of them. Even at the door of a court not only discretion but knowledge is necessary on the part of the door-keeper, and from neglect to recognise this simple fact a Sheriff has been stopped at the door of a High Court; a Procurator-Fiscal after thirty years’ service in the court has been refused admission; and the medical officer in attendance has had to demand to see a superintendent before he could get in. If such things are possible in cases like these, it is quite clear a good deal of trouble and annoyance, and possibly a good deal of injustice, may result in quarters which cannot be said to be influential.

It has been said that it is advisable to move men about from one district and from one duty to another in order to prevent their possible corruption; but the men are neither so stupid nor so bad as this reason would imply. The person who is corrupt will carry his corrupt tendencies with him over a wider area and be quite as dangerous there; for the less he is known the more readily will his personal defects escape supervision and criticism on the part of those among whom he works ; and it is better that he should be discovered and dismissed than that the great mass of policemen, who are neither stupid nor corrupt, but who are honestly seeking to discharge their duty in such a manner as to gain them the goodwill of their fellow-citizens, should have their work rendered unnecessarily arduous and difficult. Too much is expected of them considering the opportunities they are allowed, and their faults are due more to the system by which they are ruled than to any personal defects on the part of the men. Anything that will bring that system more intimately in touch with the needs of the community and more sympathetically in contact with the difficulties of the poorer classes will help towards the efficiency and also the comfort of the force.

When a person is arrested on any criminal charge he is first taken to the local police station, where the charge is entered. He is searched and placed in a cell, and if there is anything special in the charge against him, or in his appearance and behaviour, his treatment may be modified accordingly. In the great majority of cases the person arrested is only a petty offender at most. If he has money sufficient, he may hand it over as bail and be released with a notice that if he does not appear at a time and place specified his money will be forfeited and he may again be taken into custody. If he or his friends cannot leave a pledge for his appearance he makes acquaintance with the routine of administration. He becomes the tenant of a cell where he remains till the sitting of the court next morning. If the cell accommodation is fully taken up he may have company; and while every effort is made to prevent old offenders being placed in the same cell with those who are in for the first time, the best that can be done is bad.

Although prisoners are presumed to be innocent till they are found guilty, they are in many respects worse treated while waiting to be sent to prison than after they arrive there. This is not the fault of the police so much as that of the authorities who are responsible for the accommodation or the want of it. A drunk man may be a very helpless or a very intractable person, and little can be done for him till he is sober. His condition is such that it is quite clearly not the best practice to put him in a cell and leave him there. It is no uncommon thing to find that the drunkenness has masked some more serious condition; but even although there should be nothing behind his intoxication, the man is more liable to contract illness than a sober person. In less enlightened countries than ours such prisoners are not left alone, but are kept warm and placed under observation till they are sober. In our country they are less carefully treated. Drunk or sober the prisoner is in an uncomfortable position.

The police have difficulties to contend with that are not present in the prisons. The prisoners they arrest are not appreciably more dirty than when they arrive at the prison, but in the police cells there are not the same facilities for making and keeping things clean. There is no supply of free labour and not a generous provision of paid cleaners, and the cells in some cases seem to be constructed more with a view to saving the expense of cleaning than to providing for the reasonable custody of prisoners. Wooden floors are less easily cleaned than asphalt or cement, and both in the prisons and the police cells this seems to determine their construction. It is a piece of senseless cruelty in a climate such as ours, as anyone can easily find out for himself if he cares to try. In such a place even in warm weather it is difficult to keep the feet warm, and cold feet do not improve a man’s temper.

The newer cells are lined with glazed brick in deference to some sanitary notions. It is a great pity that the apostles of sanitation cannot be compelled to live in the places they design. No doubt the glazed walls are more easily cleaned than whitewashed brick would be, but they strike a chill into the occupants of the place, and moisture condenses on them in a way that it does not elsewhere. Cleanliness let us have by all reasonable means, but to be clean it is not necessary to be uncomfortable; and such methods are enough to disgust with cleanliness those who have to submit to their results. Another objectionable feature of the cell is the presence of a water-closet in it. Surely the sanitary expert has been napping when this was arranged; but here again the matter seems to be one of expense. The reasonable way would be to escort prisoners to a place when necessary, but that would mean the provision of a proper staff of warders. The cell is otherwise unfurnished save for a raised slab of wood which takes the place of a bed. There is no bedding provided. It is a barbarous provision for the man who is presumed to be innocent. As for his diet, there is none prescribed. He may have food sent in or he may have money to purchase it. If not, he will have to get along on bread and water, not having been proved guilty. In the morning he will be brought before the court, and if he asks for it he may have water to wash himself before appearing there. Cleanliness is not enforced, though it may be encouraged; but judging by their appearance when admitted to prison, not many have sought the water-basin during their stay in the police cell.

By the Summary Jurisdiction Act, 1908, it was provided that persons should not be kept in police cells for more than one night, and all persons remanded were sent to prison, to their distinct advantage; for there the staff and conditions are arranged for the custody of prisoners, and they are free for the time being from the noises incidental to the arrest and confinement of drunken persons, while they have a better chance of having their needs attended to. This procedure entailed more work on the officials, a difficulty that could easily have been overcome by a small increase in the staff. It meant not more trouble than is necessitated in the case of persons remitted to higher courts, and if the interests of the prisoners who are presumed to be innocent had been considered the Act would have remained in force ; but their convenience was not represented so powerfully as that of the officials, and reversion to the old, bad plan of retaining prisoners in the custody of the police has taken place. They may be kept in the police cells for forty-eight hours.

Some of those who are arrested may be suffering from injuries or disease. To attend these a casualty surgeon is employed. When he is asked to do so, it is his duty to call and see prisoners who complain or who are obviously ill. His pay is small; and from it, until lately, he had to provide any dressings and medicines that were required. It is not part of his duty to see every prisoner before the court begins. Occasionally people are sent to prison who should never have been brought before the courts at all. Both police and surgeon are placed in a very difficult position by the system. The police may err in their judgment as to the condition of a prisoner and may fail to direct the attention of the medical man to him. On the other hand, if they call in the surgeon too frequently to see persons who are not in need of his services he may reasonably complain, and dissensions may arise on this account which will make the working of the system irritating to all parties. In order to their comfort, surgeon and police have to make allowances for each other and to stand by one another in a way that is not likely to make for such efficiency of service to the public on the part of either as is desirable. When some extraordinary case attracts attention blame is lavishly showered upon the police ; and it is generally undeserved, at least in the form it takes. They are not to blame because of their failure to do things for which they are unfitted. They may be to blame for not protesting against duties being thrust upon them which should be performed by others. It is misdirected economy to underpay medical men, and until this is recognised accidents may be looked for and incidents will occur to shock the public because of the injury which some person has inadvertently sustained.

In the Court the Burgh Procurator-Fiscal may prosecute, or his depute may act for him. In Glasgow with all its police courts there is only one trained lawyer who prosecutes. The great mass of the charges are conducted by his deputes, who are invariably police officers. The only witnesses in many cases are constables and the prosecutor is one of their superior officers. It is a state of affairs that does not impress an outsider by its wisdom, and it is not regarded by those who come within its scope as being fair. The police have too many duties thrust upon them.

On the bench, in the great majority of cases, there is an untrained judge. In Glasgow there is only one stipendiary magistrate, who is a trained lawyer. The others are magistrates of the city, who have to discharge a multitude of duties, among which is that of sitting in judgment on their fellow-citizens. They have been elected to the Town Council to serve their constituents as members of that body, and in due course they are made Bailies. Nobody pretends that they are thereby endowed with a knowledge of the law, experience in weighing evidence, or the judicial mind; but they are invested with judicial powers, and in certain cases can send men to prison for twelve months. They are usually men of excellent character and intentions, but unfortunately both of these qualities may exist with utter incompetence from a judicial standpoint. The draper would not admit that a grocer could exchange businesses with him and the concern go on as well as ever. Each man knows that to learn his own trade requires time, to speak of nothing else; but they appear to believe that all that is required to enable them to execute what in law stands for justice is the possession of a chain of office. Were there any foundation in fact for such an idea many weary years of study would be saved ; for it is easier to get a chain than a licence to practise. That they are usually quite satisfied of their own fitness for the work goes without saying ; and it would be a piece of vanity as harmless as it is foolish if the liberty of so many were not placed in jeopardy by it. It has been urged as an argument against the appointment of trained lawyers that there were fewer appeals from the decisions of the Bailies than from those of the professional man. This is meant as a testimony to their superior fitness, presumably; for the only relevant inference from the statement is that the Bailie is better qualified to act as a judge than the man who has had a training in the work. It is a startling testimony to the superiority of inspiration to reason. There are no testimonials from those who had appeared before the courts either as prisoners or agents, however ; and the plea is not convincing. That it should ever have been made is a striking commentary on the fitness of those who made it; or on their modesty.

Appeals from police-court decisions can only be made on a case stated by the magistrate whose judgment is appealed against. Trained men are not free from liability to error, and they recognise the fact. If a case is stated in such a way that the issue is obscured there is no use in attempting an appeal; so that freedom from appeals may as readily be a testimony to the inefficiency of a judge as to his efficiency. It may afford a presumption that he is not only unfit to try a case, but not to be trusted in stating one. To suggest that it affords evidence of the superior ability of the draper and the grocer to the lawyer in law matters, is to presume too much on the credulity of the public. If they are really so splendidly endowed it is surprising that they should not place their services at the disposal of one another when a question of trade causes dispute. In that they might be expected to have knowledge at least; but though Bailies have power to send men to prison they are not empowered to try civil causes involving the property of their fellow-citizens. That is to say, they have power over the lives, but not over the property of the lieges. This is surely a grave injustice; either to them or to the prisoners.

In every court where a bailie presides he is aided and advised by an assessor, whose duty it is to keep him within the law. It is a somewhat farcical situation. The prisoner is there because he is charged with breaking the law; the bailie is there to try him on the charge; and behind him is a legal gentleman to see that the judge does not himself break the law in the process! He may either take the advice of the assessor or disregard it, but he is the responsible magistrate. If he follows the assessor’s advice, that official is in the exercise of power without responsibility, which is not a position in which anybody should be placed; if he follows the inner light, the “safeguard” which the assessor is supposed to be is useless.

It is looked upon by many as a very small affair, this whole matter of the Police Court, but it is really a very large affair and a very important one. Police Courts are those where most offenders appear for the first time, and from them they are first sent to prison. As the first step counts for so much, it is of the utmost importance that those who come before these Courts should have their cases thoroughly considered. This cannot be done if the proceedings are hurried, and it is notorious that Bailies “try” scores of prisoners in a day, the work not appearing to interfere with their ordinary occupations. Many of the prisoners plead guilty; but it is well known that there is a widespread belief among the labouring classes that if you plead guilty you get a shorter sentence. What justification there is for this belief I cannot say, but of its existence and its operative effect there is no room for doubt. They do not seem to take into account the effect the registration of a conviction may have against them at any future time, and pleas are given that no lawyer would advise.

I do not mean to suggest that people in large numbers plead guilty when they have no knowledge of the offence, but that the act they have committed may have been capable of another than a criminal construction. X 30, a girl, is charged with fraud, which is a sufficiently serious crime. She has no previous convictions against her. She is remanded to prison, and there states she has been advised to plead guilty and she will get off lightly. She is told of the grave nature of the offence and legal assistance is obtained for her. It is found that she is a wayward girl who left her people and came to Glasgow. She obtained employment in a shop, and got lodgings in a part of Glasgow that is not very reputable and with people who were not likely to keep her straight. She lost her work and was kept on in her lodgings; but an event occurred there which made it imperative that she should go elsewhere, and she removed to the house of her landlady’s daughter. She was there a fortnight when she met a woman whom she knew and through her obtained a situation. She left her lodgings and went to live with this woman. At the instance of her former landlady she was arrested for obtaining board and lodgings on false pretences. It was shown that she had paid her debt while she was working; and she protested she had made no false pretences, but meant to pay the balance when she could. The case was adjourned to enable her to do so. If she had not had legal advice and assistance there is no doubt that this girl would have had a conviction for fraud recorded against her. She had got into bad company and was on the way to the gutter, but by the operation of the law she would have been driven there. To deal properly with the large numbers which come before the Police Courts would take a great deal of time, but that is no reason why the cases should be hurried through.

If a man has the means to fee a lawyer he is in a better case, or if he has committed an offence which is serious enough to cause his remand to a higher Court, for there he will get legal assistance free; but if he is simply a petty offender with no one to help him he will probably get dealt with without any loss of time and be sentenced by scale.

It is time that some provision was made to have the police court made less a police court and more a court of justice. There is far too much police about it for the public interest. Anybody may attend, but few do so; and the proceedings might for all practical purposes be conducted in private, so far as the towns are concerned. The cases are seldom reported, and when the newspapers do notice the proceedings it is usually in a jocular way; but they are no joke to the persons concerned. A sensational murder is detailed and canvassed as though the only matter of importance to the country was the hanging of the wretch who has got into the limelight. Every hysterical theorist is anxious to get his opinion of the proper way to treat criminals put before the public ; and all the time we are busily engaged in putting into our machine young and old who have taken the first step downwards, and congratulating ourselves on the smoothness with which it works. It is not cruelty that causes us to behave in this way, but sheer stupidity and lack of imagination. Now and then a man who has eyes to see gets made a Bailie, but he makes a poor police judge. Those who look upon themselves and are credited by others with the heaven-born instinct are as likely to be the men whom no one would trust to be a judge in his own cause; and it is quite possible for a man who is narrow-minded, vindictive, and callous to have the fate of his poorer fellow-citizens placed in his hands, and, because he likes the work, to continue on the bench long after his term as a Bailie has expired. If it is important to deal with wrongdoing in the beginning; if it is desirable to prevent people from being sent to prison when that can be avoided ; it is obvious that we must see that our minor courts are so arranged and so officered that those who come before them have at least as good a chance of having their cases weighed as the old hands who go to the higher Courts get there.

The Sheriff may sit to try cases summarily, just as the Bailie does; but the court is ordered differently. The Procurator-Fiscal has no connection with the police. The case is reported by them to him and he makes his own enquiries and may drop proceedings altogether. The Sheriff is an experienced lawyer and he sees that the prisoner’s case is properly presented. The prisoner, if he wishes, may have a law-agent to appear on his behalf, and in jury cases it is the duty of the prison authorities to see that a lawyer has the defence in hand.

In Scotland it has been the custom for all indicted prisoners who have not the means to pay for legal advice to receive competent legal representation. The Agents for the Poor give their services freely and ungrudgingly. They behave towards the poor person who is accused of crime in the same way as the hospital doctors do to the sick who present themselves. In the course of their work they have to devote considerable time to the cases of those whose defence is entrusted to them ; and if the charge is one that brings the accused before the High Court they appear by counsel for him. No person appears in the dock of the High Courts in Scotland who has not a qualified member of the Bar to defend him ; and the absence of financial means does not affect this privilege. This provision of legal advice and assistance is not made at the expense of the public, but at that of the profession; and it is of as much benefit in its own way as that made for the sick by the members of the medical profession. I have never seen young medical men work with more enthusiasm to pull a patient from the jaws of death than is shown by the lawyers in their efforts to snatch the accused poor person from the hands of the prosecution. In both cases the energy might be expended to better purpose; for sick persons are frequently restored to health only to become a greater nuisance to their neighbours, and some accused persons are acquitted and sent out to prey on society; but when all discount has been made there is left a great deal of good work that was well worth doing. With regard to the work of both doctor and lawyer, we may some day take steps to see that the persons restored to health do not use their powers to the disadvantage of society, and that those restored to liberty do not use their freedom to molest others. At present we take no account of them once they have ceased to be cases—to our disadvantage as well as to theirs—and no one recognises more clearly than the lawyer that he is sometimes engaged in the attempt to turn loose on society a man who has no intention of conforming to its laws. On the other hand, everyone who has taken part in the work knows that were it not for his action serious injustice would be likely to take place.

If there were as full a provision made for the defence of prisoners who come before the Police Courts as exists for that of those who appear in the higher Courts, it would be alike to the advantage of the officials, the prisoners, and the public; but to ask that such a provision should be made at the sole cost of the legal profession is to ask too much. In special cases they have never been appealed to in vain ; and they need to give more time to one case than would enable a medical man to attend twenty. Their services are not sufficiently appreciated and known by the general public, or it would be recognised that they have contributed to save many poor people from degradation and helped to prevent accessions to the ranks of the habitual offender. No one would propose that prisoners who are called before the higher Courts should be deprived of skilled advice and advocacy unless they are able to pay, and yet there is less need in these Courts than in the Police Courts for the provision that exists.

When a prisoner has been remitted from a Police Court he is transferred in a van to prison, to await further proceedings. It has often been remarked that the various departments in Corporations seem to act independently of each other. The Sanitary Department acts energetically to prevent overcrowding in some circumstances, but the van used for conveying prisoners to prison seems to have escaped their notice. It is a prehistoric vehicle in the form of a bus without windows. It is divided into compartments each holding a number of prisoners, and the partitions contribute to prevent proper ventilation. It is lit by a few panes in the roof. On a hot day it is stifling. Any vehicle of the kind would never be licensed for the conveyance of ordinary passengers, animal or human, by a modem sanitary authority.

The presiding judge in the Higher Courts is either a Sheriff or a Lord of Justiciary. The Sheriff has jurisdiction over a County and may sit both as judge and jury; that is to say, he may try cases summarily; but his Court differs materially, even when he is doing so, from that of the Burgh Magistrate. In the first place, more public attention is given to the proceedings, for the higher the Court the greater is the interest shown in its work. In small country burghs this rule may not hold good, for there the inhabitants know more of what is doing in their midst. They may be acquainted with police, judge, and offender, personally; and in that case are likely to take a lively interest in the proceedings, criticising freely all the parties and influencing powerfully the tone of the Court; but in a great city the Police Courts might as well be held anywhere for all the effective public supervision and informed criticism they receive. Then the police are not prosecutors in the Sheriff Summary Courts. The prosecution is conducted by a Procurator-Fiscal who is appointed by the Lord Advocate, and who holds his appointment for life and is not in any way under the authority of the police. The Sheriff is a man of experience in his profession, and is continually engaged in judicial work, mostly of a civil character. He is not merely or mainly engaged in dealing with criminals, and is not likely to acquire a subconscious prejudice against the defendant.

The Lord Advocate is the head of the department concerned with prosecutions in Scotland, and no criminal action can be taken without his direction or concurrence. Private prosecutions at common law are practically unknown. His deputes act for him in the higher Courts and are instructed by the pro-curators-fiscal, who are solicitors and prosecute in the Sheriff Courts themselves. It is their duty to make enquiries into all charges with which the Police Courts are not competent to deal, and these enquiries are conducted privately. From the time a prisoner is passed on to them until he appears at the Court to plead or to be tried there are no public proceedings against him. He is brought into the Court at an early stage, the charge is read over to him, and he is asked to make a declaration. A law-agent is provided for his assistance, and he is told that anything he says by way of declaration may be used against him. The agent may advise him to say nothing and he usually does so, his declaration amounting simply to a denial of the charge. This is signed by him and read at his trial, usually closing the case for the Crown. While the declaration is being taken the public are excluded from the Court. If the Procurator-Fiscal considers that his enquiry does not justify further proceedings the charge is dropped, provided the Lord Advocate agrees ; but if the authorities are satisfied there is a case for trial an indictment is served.

In Scotland when a prisoner is indicted to appear before a jury court he must be served seventeen days before his trial with a copy of the indictment, containing the charge, a list of the productions against him, and a list of the witnesses to be called for the prosecution. Seven days thereafter he is brought before the Court to plead to the charge. If he plead guilty he may be dealt with there and then. If he plead not guilty his plea is recorded and he is sent back till the second diet of the court. If he intend to set up a special defence, such as insanity or an alibi, notice of such defence has to be given at the pleading diet; but the witnesses he intends to call need not be notified to the Crown until three days before the trial by jury. The prosecution cannot add any productions or any witnesses to the list furnished in the indictment; but if it is decided that additional witnesses are required the diet may be deserted and a new indictment served. In no case, however, can a prisoner be kept with a charge hanging over his head for more than one hundred and seventeen days from the date of his committal. After that time he is entitled to be liberated and no further proceedings on the charge can be taken against him at any time.

The Crown usually makes careful enquiries in the public interest when any special plea of insanity is brought forward; and if satisfied that the plea is a valid one, has provided, at the public expense, expert testimony to that effect on behalf of the prisoner. The greatest care has been taken to ensure that prisoners brought before the higher Courts do not suffer from lack of means, and there is never any disposition on the part of the prosecutor to make it a point of honour that he should obtain a conviction. There is no speech by the prosecutor in opening his case. So far as the Court is concerned the jury start without any bias against the prisoner, and as the evidence is led they gain their knowledge of the case. In most cases the prosecutor does not address the jury at all. He contents himself with leading evidence. The character of the prisoner is not disclosed to the jury until after their verdict has been returned. If during the trial any reference is initiated by the prosecution as to previous convictions, the prisoner is entitled to an acquittal upon the charge against him. The point the jury has to determine is whether the person committed the crime charged, and they have to find their verdict simply on the evidence led.

The Scottish jury consists of fifteen men, and the verdict of a majority is required. They may decline on the evidence to express an opinion on the prisoner’s guilt, but instead may find the charge not proven. This is the most practical provision for giving a prisoner the benefit of any doubt that exists in their minds after hearing the evidence. Whatever the verdict may be, the prisoner, having been once tried, cannot again be charged with the same offence. It is difficult to conceive any system under which a prisoner charged with crime could be more fairly treated; and if in the minor Courts offenders received the same consideration, the number sent to prison would be greatly diminished and the ranks of the habitual offender would fail to receive so many recruits.

Return to Book Index Page


This comment system requires you to be logged in through either a Disqus account or an account you already have with Google, Twitter, Facebook or Yahoo. In the event you don't have an account with any of these companies then you can create an account with Disqus. All comments are moderated so they won't display until the moderator has approved your comment.

comments powered by Disqus