Balloch v H. M. Advocate
| Jurisdiction | Scotland |
| Judgment Date | 14 January 1977 |
| Docket Number | No. 4. |
| Date | 14 January 1977 |
| Court | High Court of Justiciary |
JC
L. J.-C. Wheatley, Lords Kissen, Robertson.
Evidence—Admissibility—Confession to murder made after long questioning in police station—Whether issue to be left to the jury as a matter of facts and circumstances.
In the course of a murder investigation, the applicant was taken to a police station for the purpose of identifying property taken from the body. While there, a statement was obtained from him in the course of a lengthy process of question and answer. The police then came to suspect that he might be involved in the murder, and a senior police officer, without cautioning the applicant, asked him if he was sure he was telling the truth. Thereupon the applicant broke down and made a highly incriminating statement. He was then cautioned and made a detailed confession.
At his subsequent trial the applicant was found guilty of murder by the unanimous verdict of the jury. In the course of the trial objection was taken by counsel for the defence to evidence relating to the confession and the circumstances in which it was made being led. After a trial within a trial, the trial Judge allowed that evidence to be led in the presence of the jury and in his charge left it to the jury to determine whether or not the statement had been made voluntarily or had been extracted by unfair or improper means. In applying for leave to appeal against conviction, the applicant submitted that the trial Judge had erred in allowing said evidence to be led in the presence of the jury and in charging the jury that they might have regard to the confession in reaching their verdict.
Held, that in questions of admissibility each case will depend on its own facts and circumstances; that a Judge who has heard the evidence regarding the manner in which a challenged statement was made will normally be justified in withholding the evidence from the jury only if he is satisfied on the undisputed relevant evidence that no reasonable jury could hold that the statement had been made voluntarily and had not been extracted by unfair and improper means; that the question in the case was so open that the Judge acted correctly in allowing the issue to go to the jury for their determination; and leave to appeal refused.
James Balloch was charged on indictment inter aliathat "you did between 11th and 13th June 1976 both dates inclusive in a wooded area known as Dean Wood on the north side of Lang Loan, Edinburgh, assault Terry Pinder, 10/12 Southhouse Medway, Edinburgh, and did punch him on the face and stab him on the body with a knife or similar instrument, pour paraffin or similar inflammable substance over his body and set it alight, and you did murder him; and you did previously evince malice and ill-will towards the said Terry Pinder."
The applicant pleaded not guilty and was tried at the High Court in Edinburgh on 27th to 30th September 1976. He was found guilty by the unanimous verdict of the jury and sentenced to life imprisonment. During the course of the trial there arose the question of the admissibility of a confession made by the applicant to the police which was a crucial fact in the Crown case. The evidence of this confession and of the facts surrounding it was adduced in a trial within a trial. After hearing counsel the trial Judge (Lord Grieve) allowed the evidence to be led in the presence of the jury, and in charging the jury told them that they could consider the statement for what it was worth if they considered beyond reasonable doubt that it was...
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