Downie v H. M. Advocate

Judgment Date18 January 1952
Docket NumberNo. 9.
Date18 January 1952
CourtHigh Court of Justiciary


Lord Justice General. Lord Carmont. Lord Russell.

No. 9.
H. M. Advocate

Procedure—Preparation for trial—Commission and diligence for recovery of documents—Documents required in support of special defence—Whether recovery competent—Competency of application to High Court in relation to trial before Sheriff and jury.

Evidence—Competency—Confidentiality—Statements made to Post Office investigators of suspected embezzlement—Accused seeking to recover statements in support of special defence that crime committed by another.

An accused, indicted before a Sheriff and jury on a charge of embezzlement while employed as a subpostmistress, presented to the High Court of Justiciary, shortly before the first diet, a petition for a commission and diligence to recover certain documents in the hands of the Crown or Post Office authorities. These documents, recovery of which was sought for the purpose of preparing the defence and a special defence that the crime, if committed, was committed by another person, were (1) statements made by that person to Post Office investigators and committed to writing, (2) the Post Office Savings Bank book or books of a third party who had no apparent connexion with the matter, and (3) the Post Office ledger so far as relating to the third party's account. The Crown opposed the production of the statements made to Post Office investigators, but undertook to produce the other documents if the petitioner showed that they were necessary for the preparation of her defence and special defence.

The Court continued the petition to allow consideration by the Crown, in accordance with the undertaking given, of the propriety of producing the documents sought to be recovered, other than the statements made to Post Office investigators.

Per the Lord Justice-General:—"Had it been necessary, I should have been in favour either of convening a larger Court to lay down the appropriate practice, or of dealing with the matter by the enactment of an Act of Adjournal."

Opinion (per the Lord Justice-General), with regard to the statements made to Post Office investigators, that it was very difficult to figure circumstances in which any Court would order the production of such documents, which were, in the case of a Post Office embezzlement charge, prima facie indistinguishable from Crown precognitions, to which absolute privilege attached.

Isabella Warnock Hamilton or Downie presented a petition to the High Court of...

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7 cases
  • Fraser v HM Advocate
    • United Kingdom
    • Supreme Court (Scotland)
    • 25 Mayo 2011
    ...was an aspect of the role of the Crown as it had been understood since Slater v HM Advocate 1928 JC 94; see also Downie v HM Advocate 1952 JC 37, p 40 per Lord Justice General Cooper; Smith v HM Advocate 1952 JC 66, p 72 per Lord Justice Clerk Thomson. As Lord Rodger said in McLeod at p 79......
  • McDonald v HM Advocate
    • United Kingdom
    • Privy Council
    • 16 Octubre 2008
    ...unreported cases in which applications had been granted by the High Court since 1887: p 77 n 1. In one reported case, Downie v HM Advocate 1952 JC 37, the material which the accused sought to recover was said to be in the possession of either the Crown or the Post Office. Subsequently, in H......
  • James Holland V. Her Majesty's Advocate
    • United Kingdom
    • High Court of Justiciary
    • 16 Junio 2004
    ...McLeod v HM Adv (1998 SCCR 77, at p 98) a court of five judges held that the Crown tradition of disclosure referred to in Downie v HM Adv (1952 JC 37, Lord Justice General Cooper at p 40) involved a positive duty on the Crown "at any time to disclose to the defence information in their poss......
  • M (William) (A Juvenile) v Hm Advocate
    • United Kingdom
    • High Court of Justiciary
    • 17 Diciembre 1999
    ...time to disclose to the defence information in their possession which would tend to exculpate the accused…Equally, as was seen in Downie [1952 JC 37] and has been seen repeatedly over the years since then in cases such asWard [1993 SLT 1202], the Crown will respond to specific requests from......
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2 books & journal articles
  • Table of Cases
    • United Kingdom
    • International Journal of Evidence & Proof, The No. 11-4, October 2007
    • 1 Octubre 2007
    .... . . . . . . . . . . 139Den Norsk Bank v Antonatos [1999] QB 271. . 61Dookran v State [2007] UKPC 15 . . . . . . . . . . .236Downie v HMA 1952 JC 37 . . . . . . . . . . . . . . . . 159Dowsett v UK (2003) 38 EHRR 845. . . . . . . . . . 166DPP v O’Neill [2007] 1 ECCA 8 . . . . . . . . . . . ......
  • The Lockerbie Aircraft Bombing Case and the Final Appeal
    • United Kingdom
    • Journal of Criminal Law, The No. 85-4, August 2021
    • 1 Agosto 2021 the Law of Scotland (6th edn Thomson Reuters, Edinburgh1996) 201–2; paras 14-32 to 14-32.2.15. Ibid, referring to Downie v HM Advocate, 1952 JC 37.16. Al Megrahi v HM Advocate, [2020] HCJAC 39.17. Ibid, paras [2], and also [11] to [20] (the SCCRC Reference); and [4]–[7] and also [22] to ......

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