Criminal Law & Practice in Scotland
| DOI | 10.1177/0032258X5803100402 |
| Published date | 01 October 1958 |
| Date | 01 October 1958 |
| Subject Matter | Article |
CRIMINAL
LAW
AND
PRACTICE
IN
SCOTLAND 229
Criminal
Law
&
Practice
In
Scotland
STATEMENTS
MADE
TO THE POLICE
In
our
last issue we took notice of two cases dealing with this subject
and two of the cases which follow deal with the same matter. Anyone
reading through the Law Reports over the years cannot but be struck
by the frequency with which the expression "fairness to the accused"
occurs in the Opinions of the Judges.
Not
only does it appear in all
three cases to which we now wish to refer
but
it is, in a nutshell, the
ground of the decision in each case. These, of course, are all signposts
pointing in the same direction. If in the course of investigation one has
any doubts about the propriety
of
the line one is following, consider:
Can it be said that this is unfair to the accused? While the facts and
circumstances giving rise to the decisions bear no resemblance to each
other the same factor weighed with each.
In McKie v. H.M. Advocate, (1958, S.L.T. 152), the ground of
appeal was that when McKie, who had been charged with a contra-
vention of Section 15 of the
Road
Traffic Act, 1930, gave his consent
to a medical examination he did so only because that was the charge
against him, and that it was incompetent to use the evidence which was
obtained as a result of that consent and examination at his trial on the
more serious charge of culpable homicide which had subsequently been
preferred.
It
appears that McKie had been involved in a motor accident
and
at the time was charged with a contravention of Section 15 of the
Road
Traffic Act, 1930. There could be no question about the manner
in which his consent to being medically examined, or the conduct
of
the examination had been carried out. However, at the time of the
accident a man had been killed
but
because his body had been thrown
clear of the road this fact did not emerge until later. When it did the
charge of culpable homicide, at common law, was preferred, and it was
on this later charge that he went to trial. When the medical evidence,
was adduced Counsel for McKie objected on the ground that it was
incompetent because of the limited extent of his client's consent, i.e. a
consent to be examined because he was only charged with a contraven-
tion of Section 15,
not
charged with the much more serious offence
of
culpable homicide.
The Lord Justice Clerk, Lord Thomson, referred to the now familiar
problem of trying to reconcile two legitimate interests. On the one
hand the public interest in the pursuit and detection
of
crime and on
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