Aitken v Wood
| Jurisdiction | Scotland |
| Judgment Date | 13 June 1921 |
| Date | 13 June 1921 |
| Docket Number | No. 18. |
| Court | High Court of Justiciary |
Lord Justice-General, Lord Cullen, Lord Blackburn.
Evidence—Undue admission of evidence—Taking evidence in absence of accused—Procedure at trial—Magistrates examining witness's arm in their private room—Review.
At the trial of an accused upon a charge of assaulting a woman by seizing and compressing her arm, the magistrates (one of whom was a medical doctor) at the conclusion of the evidence called the woman into their retiring-room and examined her arm in private. Thereafter they convicted the accused.
Held that, as the examination of the arm amounted to the reception of additional evidence by the magistrates, it could not competently take place outwith the presence of the accused; and conviction quashed.
William Aitken, butcher, Largs, was charged in the Police Court at Largs on a complaint at the instance of Robert Wood, Burgh Prosecutor, which set forth that ‘on Tuesday, 15th February 1921, within the shop situated at 73 Main Street, Largs, in the burgh of Largs, occupied by you, you did assault Etta Clark or M'Nidder, wife of and residing with Thomas M'Nidder, retired engineer, residing at “Valetta,” Lovat Street, Largs aforesaid, and did seize her by the arm and compress the same.’
The magistrates having convicted the accused, he presented a bill of suspension in which he stated, inter alia;—(Stat. 3) ‘The only evidence of the commission by the complainer of the assault … with which he was charged was (1) that of Mrs Etta Clark or M'Nidder, the person alleged to have been assaulted, who stated that the complainer used threatening language to her, caught her by the arm and compressed it, and that as a result there was a red or black mark on her arm; and (2) that of a police-constable who stated that he had seen the mark on her arm. The evidence of these two witnesses was indefinite and contradictory as to which arm bore a mark of assault. Four persons present in the shop at the time of the alleged assault, two adduced as witnesses for the prosecutor, two as witnesses for the defence, stated that the complainer never touched the woman at all.’ (Stat. 4) ‘The cases for the prosecution and for the defence were closed, and the three magistrates, along with the Clerk of Court, retired to a private room separate from the Court to consider their decision. They remained in the private room for some considerable time and then sent for the said Etta Clark or M'Nidder, the person alleged to have...
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