Criminal Law and Practice in Scotland
| Published date | 01 May 1961 |
| Date | 01 May 1961 |
| DOI | 10.1177/0032258X6103400316 |
| Subject Matter | Article |
£riminal
Law
and
Practice
in
Scotland
SECONDARY EVIDENCE
Mcl.eod v. Woodmuir Miners' Social Club, 1960,
S.L.T.
349
THE VERY SHORT
POINT
raised in this case was whether certain evidence
tendered by sampling officers was not the best evidence available
and therefore incompetent. What happened was that they pur-
chased whisky and then disclosed that it was for sampling purposes.
The officers were content to take the whisky purchased by them,
and did not take possession of the bottIe from which it was poured.
Indeed they had no power to do so. Following upon an analysis
proceedings were taken and in the course of the trial the prosecutor
asked one of the officers what was written on the bottle from which
the whisky was poured. This question was objected to on the ground
that neither the bottle nor the label had been produced and accord-
ingly this was not the best evidence. The Sheriff accepted this
argument and acquitted, but the High Court reversed his decision.
In the course of his opinion Lord Clyde, the Lord Justice General,
referred to the case of Maciver v. Mackenzie (1942), J.C. 51, where it
was laid down that primary evidence is not always essential and
secondary evidence is competent if it is not reasonably practical and
convenient to produce the primary evidence. While the High Court
came to the view that the Sheriff, in this case, was wrong, it should
be noted that those engaged in this case were not police officers,
but inspectors under the Food &Drugs Acts. Both Lord Clyde and
Lord
Sam
pointed out forcibly that these officers had no power to
seize the bottle in question; if they had had such power, and had
not used it, the result might well have been different.
On the question of the production of articles Lord Carmont
had this to say in the case
of
Maciver-i-"
It
is no doubt the
proper practice to produce any article referred to in the indict-
ment or complaint where there is no practical difficulty in doing
so ". He envisaged the following cases in which production was
not practical i.e. cases dealing with livestock and perishable
goods. He queried, however, whether a case of forgery could
succeed in the absence
of
the production of the writing founded
on. In that case it was strongly argued for the appellant that
there was an obligation on the prosecution to produce the
articles referred to in the complaint where it was not outwith
his power to do so. In referring to this argument Lord Carmont
said " There is no such rule as was being contended for and it is a
230 May-June 1961
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