Chalmers v H. M. Advocate
| Jurisdiction | Scotland |
| Judgment Date | 05 March 1954 |
| Date | 05 March 1954 |
| Docket Number | No. 13. |
| Court | High Court of Justiciary |
HIGH COURT. (Full Bench).
Lord Justice-General, Lord Justice-Clerk, Lord Carmont, Lord Patrick, Lord Mackintosh.
Evidence—Competency—Statements of panel—Statement to police at police station while under suspicion of murder—Statement made after interrogation—Actings of panel after making statement—Admissibility of evidence of statement and actings at subsequent trial for murder—Police Force—Duty of police to persons under suspicion.
A youth of sixteen who was under suspicion of having committed a murder was brought to a police station and, without any charge being made against him at that time, was cautioned and interrogated regarding information which he had previously given. He was then cautioned again and made a statement, in consequence of which he was taken by the police to a cornfield where he pointed out to them the whereabouts of a purse belonging to the murdered man. He was later formally charged, and then made a second statement. At his subsequent trial for murder his first statement was not tendered in evidence by the Crown, but evidence was led in regard to his subsequent actings and to the second statement, and he was convicted.
Held by a Full Bench that the actings of the panel in connexion with the discovery of the purse fell to be regarded as part of the same transaction as the interrogation which had resulted in his making the first statement; that evidence of the first statement, if it had been tendered, would have been inadmissible as being unfair to the panel; that evidence of the actings was equally inadmissible; and that, even if the second statement was accepted as evidence, the evidence was insufficient to warrant the conviction; and the convictionquashed.
Observations on the duty of the police towards a person who is under suspicion of having committed a crime.
Procedure—Procedure at trial—Objections to evidence—Procedure for disposing of objections.
During the trial of a panel on a charge of murder objection was taken by the defence to the admissibility in evidence of certain statements and actings attributed to the panel. The jury were asked to retire during the legal argument, but the presiding Judge was not prepared to dispose of the objection without hearing evidence of the circumstances in which these statements and actings originated, and this evidence was led in the presence of the jury.
Held by a Full Bench that, when objection was taken to a line of evidence based upon the alleged unfairness of the methods used in eliciting it, the jury ought to be excluded during the hearing of evidence relating to the attendant circumstances, even if such evidence eventually required to be led a second time in presence of the jury in the event of the objection being repelled.
Observations on the relative functions of Judge and jury in relation to evidence which is admitted in such circumstances.
H. M. Advocate v. Cunningham, 1939 J. C. 61,commented on.
John Chalmers, junior, aged 16 years, was charged on an indictment at the instance of Her Majesty's Advocate which set forth that "you did, on 24th July 1953, in the grinding mill of Jones & Campbell, Limited, at Torwood Foundry, Larbert, Stirlingshire, assault Peter Stevenson Hastings, senior, 2 Kerse Gardens, Falkirk, and did strike him on the head with a metal scoop or other similar instrument and rob him of a purse containing two pay slips and £27, 12s. 8d. of money, and said Peter Stevenson Hastings, senior, was so severely injured that he died in Killearn Hospital, Killearn, on 6th August 1953, and you did murder him."
The panel was tried before Lord Strachan and a jury at Stirling on 10th, 11th and 12th November 1953. During the course of the trial the Crown sought to lead evidence of the actions of the panel in pointing out to the police the whereabouts of the purse belonging to the deceased, and of a statement later made by the panel after being formally charged. Counsel for the panel objected to the admission of this evidence on the ground that the actions and subsequent statement followed closely on, and could not be dissociated from, a period of interrogation by the police at the police station during which the panel had made an earlier statement. The presiding Judge excluded the jury during the legal argument concerning the objection, but, before giving a ruling, heard evidence in presence of the jury of the circumstances in which the actions took place and the two statements were made. Thereafter he repelled the objection. The nature of the evidence objected to and the grounds of objection are brought out in his opinion.
LORD STRACHAN.—The accused in this case is charged with robbery and murder. The charge is that he committed those offences on 24th July 1953 in the grinding mill at Torwood Foundry, Larbert. Both the accused and the assaulted man were employed at that foundry. No evidence has so far been led as to the age of the accused, but I understand that at the time, on the date mentioned, he was about sixteen years of age.
Following upon the discovery of the assault an investigation was carried out by the criminal investigation department and many employees of the foundry and others were questioned. The accused was questioned by a detective constable on 26th July; he then made a statement about his movements at the relevant time; that statement was not written down, but the detective constable has given evidence as to what the accused then said. That evidence was admitted without objection, and, in my view, it was clearly competent in respect that that particular statement by the accused had been given in the course of an investigation, and at a time when no one was under suspicion. A second statement was given by the accused to another detective constable on 7th August; that second statement was put into writing, but it has not been produced, and no attempt has been made by the Crown to prove its terms. As a result of further information given to the police on the night of 13th August, the detective inspector at Falkirk decided to interview the accused again in connexion with his second statement, and two officers were dispatched on the morning of 15th August in a police van with instructions to bring the accused to Falkirk police station. He was brought to that police station at about ten past eleven on the morning of 15th August; he was then questioned by the detective inspector. Following upon the questioning he made a statement to which I shall refer as the third statement. About 11.45 A.M. the accused was taken in a police van to a cornfield near Larbert railway station, and the detective inspector and two other police officers accompanied him. In examining the detective inspector in the witness-box, the Advocate-Depute did not attempt to prove the terms of the accused's third statement; he passed that over, and proceeded to ask questions relating to the visit to the cornfield. The detective inspector was asked if a search was made in the cornfield, and he replied in the affirmative. At that stage counsel for the defence objected to the line of evidence. The jury withdrew from Court, and I heard parties fully upon the objection which had been taken. That objection covers both (a) all evidence relating to the visit to the cornfield, and in particular evidence relating to any search that was there made, and (b) evidence relating to a further or fourth statement which the accused is said to have made subsequently in Falkirk police station when he was formally cautioned and charged at about 2.25 P.M. on the same day. The second of those matters has not yet been reached in the evidence, but I am informed that the Advocate-Depute proposes to attempt to prove the terms of the fourth statement, and it is convenient that I should dispose of that objection now.
The grounds of the objection are (1) that evidence as to the terms of the third statement would be inadmissible because the police proceedings by which it was obtained were unfair and (2) that the events at the time of the visit to the cornfield and at the time when the statement was made following upon the formal caution and charge were so inseparably connected with the earlier proceedings that they were inevitably tainted with unfairness, and evidence in regard to that should therefore be excluded.
The Advocate-Depute has stated that he does not intend to try to prove the terms of the third statement, but, as the proceedings which led up to it are the basis of the objection, it is necessary to have regard to the circumstances in which that statement was made. The Advocate-Depute and counsel for the defence were not entirely agreed as to those circumstances; I therefore took the view that it was desirable to hear evidence on that matter. Three police witnesses were then examined and cross-examined in regard to it, and during that evidence the jury were again present in Court.
I shall now state the salient features of the proceedings disclosed in the evidence to which I have just referred. When the accused was brought into the inspector's room at 11.10 A.M., he appeared to the police to be in quite a normal condition. The inspector began by making some such remarks as the following, these remarks being addressed to the accused: "I want to see you again in connexion with the death of Peter Hastings. On 7th August you made a statement which I have here regarding your movements on the night of the assault. I am going to ask you further questions, but, before doing so, I caution you that you do not need to answer any questions unless you like, and that anything you do say may be noted and used as evidence against you." The inspector further asked the accused if he understood the caution, and the accused replied that he did. The interrogation then proceeded, and the accused answered the questions which were put to him. It may be that only a few questions were asked, but as a result of the questioning tears...
To continue reading
Request your trial
-
Foster v Farrell
...the police for the purpose of aiding their investigations but was also admissible in evidence (distinguishing Chalmers v. H. M. Advocate. 1954 J. C. 66); (3) that it was unnecessary to warn or caution a person before requiring him to give information under sec. 232. Hugh Craig Foster was ch......
-
Manuel v H. M. Advocate
...and that, as there was no evidence of inducement, all the confessions were admissible in evidence. Chalmers v. H. M. Advocate, 1954 J. C. 66,distinguished. Peter Thomas Anthony Manuel was tried in the High Court at Glasgow on 12th May 1958 and fourteen subsequent days, before Lord Cameron a......
-
HM Advocate v P
...of fairness will need to be satisfied in any event for such evidence to be admissible. 15 As Lord Justice Clerk Thomson said in Chalmers v HM Advocate 1954 JC 66, 81, the law has to reconcile two principles: (1) that no accused person is bound to incriminate himself, and (2) that what an ac......
-
Jones v Milne
...there is found to have been unfairness on the part of the police. Dicta of Lord Justice-General (Cooper) in Chalmers v. H. M. AdvocateSC1954 J.C. 66approved. Lynn Tasman Jones, sometime of Australia, presented a note of application in terms of section 8 of the Fugitive Offenders Act 1967 to......
-
The Supreme Court and foreign sources of law: two hundred years of practice and the juvenile death penalty decision.
...(footnotes omitted). (538.) Id. at 488 n.57. (539.) Id. at 488. (540.) Id. (541.) Id. at 488 n.59 (citing Chalmers v. H.M. Advocate, [1954] J.C. 66, (542.) Id. at 488-89. (543.) Id. In 1872, India operated under British law. Id. at 489. In a footnote, the Court quoted the Indian Evidence Ac......
-
Chalmers to Cadder: Full Circle on Police Interrogation?
...this article is to analyse changes to the Scots law governing the police questioning of suspects from the time of Chalmers11Chalmers v HMA 1954 JC 66. in the middle of the twentieth century up until the aftermath of the recent and controversial Supreme Court decision in Cadder.22Cadder v HM......
-
Case Commentaries
...an independent life of its own is prima facie admissible. This is thecombined effect of Lawrie vMuir 1950 JC 19 and Chalmers vHM Advocate 1954 JC 66.Before the trial began, the defence raised the question of the admissibility of thisderivative evidence submitting that if the Crown were perm......
-
In the Scottish Courts
...of credibility was one for them.At the end of their judgment the court made reference to theprocedure laid down inChalmersv. H.M.Adu,(1954 J.C. 66; 18J.C.L. 268) whereby when a challenge is made as to the admissibilityofa confession evidence is first led outwith the presence of thejuryas to......