Bell v Hogg
| Jurisdiction | Scotland |
| Judgment Date | 15 February 1967 |
| Date | 15 February 1967 |
| Docket Number | No. 8. |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-General. Lord Migdale. Lord Cameron.
Evidence—Competency—Evidence improperly obtained—Hand-rubbings taken from men suspected of theft of copper wire—Suspects cautioned but not arrested or charged—Suspects not informed of right to refuse to give rubbings—Rubbings taken as matter of urgency in order to preserve evidence—Fairness—Police.
While investigating a suspected theft of copper telegraph wire in the early hours of the morning, the police pursued and stopped a motor van in which four men were travelling. A police sergeant informed the men that he was investigating a suspected theft of wire and cautioned them. He asked them to show their hands, and, when they did so, he observed on them a greenish-grey substance which he suspected to be verdigris. The men were then taken to a police station, where, about 4 a.m.,and before they had been arrested or charged with any offence, the sergeant asked each of them if he would give a rubbing from his hands on a piece of clean blotting paper. He did not tell them that they were entitled to refuse to do so. All the men agreed to give the rubbings, and later, when it had been confirmed that there had been a theft of wire, they were charged with having stolen it. At their trial objection was taken to the leading of expert evidence that the hand-rubbings contained verdigris identical with that on the stolen wire, on the ground that the rubbings had been irregularly obtained. The sergeant deponed that, if he had delayed to take the rubbings, the accused might have asked permission to use the lavatory and taken the opportunity to remove the evidence by washing their hands.
Held that, in view of the urgency of preserving evidence of the substance he had observed on their hands, the sergeant was justified in taking the hand-rubbings as and when he did; that there had been no unfairness to the accused; and that the evidence objected to was therefore admissible.
M'Govern v. H. M. Advocate, 1950 J. C. 33,distinguished.
Observations by Lord Wheatley in Miln v. Cullen, supra, p. (J.) 21 on the necessity of balancing fairness to accused persons against fairness to the public,approved.
William Adamson Bell and Others were charged in the Sheriff Court of Fife and Kinross at Cupar on a complaint at the instance of Charles Gordon Hogg, Procurator-fiscal, Cupar, which set forth that "you did on 11th August 1966 (1) on the railway line between Largo and Elie, at a part thereof in the parish of Kilconquhar, Fife, about quarter of a mile east of Kilconquhar Station, steal 750 yards of telegraph wire; (2) on said railway line, at a part thereof in said parish, on the outskirts of Elie, steal 2500 yards of telegraph wire; and (3) on said railway line at a part thereof in the parish of Newburn, Fife, about half a mile east of Broomhall Farm, Largo, steal 1700 yards of telegraph wire."
The accused pled not guilty, but on 5th December 1966, after trial, the Sheriff-substitute (Kydd) found each of them guilty as libelled. At their request he stated a case for the opinion of the High Court of Justiciary.
The case set forth that the following facts were proved:—"(i) At approximately 12.50 a.m. on llth August 1966 the witness Samson, a railway chief inspector employed in the Railway Signals Branch of British Railways, received information from Burnt-island that an alarm had been set off by the alarm wire of the railway overhead telegraph system … After meeting members of the railway police at Leven, Samson made tests and eventually went to Kilconquhar, arriving at approximately 3.15 a.m., and made further tests of the overhead telegraph system, which indicated that wires had been cut on both sides (east and west) of Kilconquhar Station. Police officers of the Fife Constabulary were also present at Kilconquhar Station, and at approximately 3.35 a.m., when a vehicle was heard to pass the station, travelling westwards towards Leven, these officers gave chase in a police patrol car and at approximately 3.40a.m. stopped the vehicle, a Ford Thames van, on the road to Leven, at a point about half a mile west of Kilconquhar Station. The van was being driven by the appellant Brand, whose property it was, and the other three appellants were passengers in the van. The police officers told the appellants that they had stopped the van for a routine check and they noted irregularities in the lighting and licensing of the van and charged the appellant Brand with not having a road fund licence. They asked the appellants where they were going and where they had come from and were informed that they had been to Crail for the evening and that they were so late because they had been unable to start the van. The officers were engaged on these matters for five or ten minutes, and Samson, Sergeant Clark of the Fife Constabulary and Sergeant Muirhead of the British Railways Police then arrived. (2) Sergeant Muirhead informed the appellants that he was investigating a suspected theft of wire on the railway line, and cautioned them. The appellant Brand stated that they had been to Crail and that they had had trouble with the van. (The starter of the van was in fact inoperative—although the police later had no difficulty in starting the van by pushing—and one of the gears was out of order. Crail is about ten miles distant from this point.) Sergeant Muirhead then asked the appellants to show their hands, and they did so. He and an officer of Fife Constabulary saw, by torchlight, that there was a "greenish-gray" substance on their hands. The appellant Brand said that his hands were dirty because he had been working on the van. All the appellants were wearing "working" clothes. The appellants Hay and Brown were wearing jacket and trousers and the appellants Bell and Brand jersey and trousers. The jackets worn by Hay and Brown were light in colour and appeared to be reasonably clean. A search was made of the van and a pair of pliers was found in the rear. The van also contained a number of agricultural hoes, rakes, a graip, a jack and a rope. The appellants were then taken to Leven Police Station, where, on a further search of the van, a second pair of pliers was found beside the front passenger seat. Both pairs of pliers had the appearance of having been recently used but, when examined by witnesses at the trial, they had a corroded appearance. These witnesses agreed that this appearance might have been caused by corrosion by acid resulting from use on or near a car battery. (The pliers were subjected to scientific examination but no evidence was led to indicate that any traces of copper were found on them and it was apparent that no such traces had in fact been found.) (3) Very shortly after arrival at Leven Police Station at approximately 4 a.m., Sergeant Muirhead called each of the appellants in turn to a table and asked each if he would give a rubbing from his hands on to a piece of clean white blotting paper. He did so in order to preserve the substance adhering to their hands for future scientific examination in confirmation of his own opinion that it was verdigris. Each of them agreed to do so, and the Sergeant pressed both hands of each on to the sheets of blotting paper, leaving the marks shown on labels (17) to (20) inclusive. This was done in a room containing two police officers of Fife Constabulary at a time when the appellants had not been charged. They were not specifically told that they could refuse to give the rubbings on the blotting paper. (Sergeant Muirhead and an officer of Fife Constabulary gave it as their opinion that the substance adhering to the appellants' hands was verdigris.) Following a systematic examination of the railway overhead telegraph system to the east and west of Kilconquhar Station, Sergeant Muirhead at 6 a.m. cautioned and charged each of the appellants with acting together in the theft of 4950 yards of wire from the railway between Largo and Elie. In reply to the charge the appellant Bell said, "No"; the appellant Hay said, "Where is the copper that was stolen?"; and the appellants Brand and Brown each said, "Nothing to say." The appellants were then locked up and Sergeant Muirhead took possession of the items of clothing forming labels (21) to (26) inclusive and consisting of the pair of trousers worn by each of the appellants and the jackets worn by Brown and Hay. (4) On the inspection of the overhead telegraph system on the railway carried out between approximately 4.30 a.m. and 6 a.m.it was found that 750 yards of copper wire had been cut down at a point approximately quarter of a mile east of Kilconquhar Station. Only a very small part of this wire was coiled and most of it lay in a tangle at one side of the line. At a point about half a mile west of Elie Station it was found that approximately 2500 yards of copper wire had been cut down from the telegraph system. By following tracks through a cornfield this wire was found coiled up, together with a ladder, some 300 yards away from the line behind a hedge at the side of a road. Immediately to the south of a level crossing a short distance to the...
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