Criminal Law and Practice in Scotland
| Published date | 01 October 1959 |
| DOI | 10.1177/0032258X5903200409 |
| Date | 01 October 1959 |
| Subject Matter | Article |
Criminal
Law
and
Practice
in
Scotland
POLICE
EVIDENCE-FAIRNESS
TO ACCUSED
IN RECENT TIMES there appear to have been a number of cases in
which an attack has been made on evidence given by police officers.
The
High Court has already pointed out that in many cases two
important interests have to be reconciled. Against the interest of
the individual who must be protected from illegal or irregular inva-
sion of his liberties by authority, there must be placed the interest
of the State which requires that evidence bearing on the commission
of a crime and necessary to enable justice to be done shall not be
withheld from a Court on formal or technical grounds.
Occasionally it may be difficult to know where to draw the line
but there seemed little substance in the attack in the most recent
case of Marsh v. Johnston, 1959, S.L.T. (Notes) p. 28. In that case
two police officers, in plain clothes, went into a hotel and saw cus-
tomers being served with what appeared to be excisable liquor
after the normal closing time. They then asked for, and were sup-
plied with liquor. The accused objected to their evidence being
heard on the ground that they had themselves committed an offence.
The
High Court, however, would not listen to this argument, nor,
incidentally, did the Court of first instance. In the course of his
opinion the Lord Justice General (Lord Clyde) said: "The present
case itself shows how difficult it would be to prove offences of this
nature unless police evidence of this kind were used, for the two
customers whom the police saw being supplied with liquor after
closing time both denied that they had purchased any liquor after
that time.
If
evidence of this kind was to be regarded by the Court
as necessarily being incompetent, there would be a wholesale flout-
ing of the provisions of Acts of Parliament." He then went on to
comment that it would have been quite different and unfair to the
accused if there had been any pressure or trickery by the police but
stressed that there was nothing of that nature in this case.
October-December.
1959 275
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