Forrester v H. M. Advocate
| Jurisdiction | Scotland |
| Judgment Date | 17 January 1952 |
| Date | 17 January 1952 |
| Docket Number | No. 8. |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-General. Lord Carmont. Lord Russell.
Police Force—Powers and duties of police—Medical examination of suspected criminal after apprehension—Evidence—Competency—Objection to evidence of police surgeon where examination made without panel's consent.
A man, suspected of "safe-blowing," was apprehended by the police and, after being charged and cautioned, was examined by a police surgeon, who found a cut on one of his fingers. This cut corresponded with a cut on a glove found near the scene of the crime, and it had healed to an extent which corresponded with the interval of time which had elapsed since the crime was committed. At the man's trial the evidence of the police surgeon was objected to on the ground that his examination of the panel had been made without the panel's consent and under conditions which, in other respects also, did not comply with the procedure laid down in Reid v. Nixon, 1948 J. C. 68.The objection was repelled, and the panel was convicted.
Held, distinguishingReid v. Nixon,that the observations of the Court in that case were directed solely to the procedure appropriate to the investigation of the statutory offence created by sec. 15 of the Road Traffic Act, 1930, of which the essence was the physical condition of the accused at the time; that they had no application to the powers and duties of the police when investigating an ordinary common law crime; and that the objection to the evidence had rightly been repelled.
Adair v. M'Garry, 1933 J. C. 72, followed.
Evidence—Sufficiency—Circumstantial evidence including evidence of microscopic examination of cotton material—Failure to connect material with panel—Whether remaining evidence sufficient to support conviction.
The evidence against a panel charged with "safe-blowing" was entirely circumstantial and was directed to establishing three points, viz., (1) that, when arrested, he was in possession of some bank notes stolen from the safe, (2) that a cut on one of his fingers corresponded with a cut on a glove found near the scene of the crime, and (3) that a small particle of material found in one of his pockets corresponded with the material of a cotton bedspread used in connexion with the crime. The jury, by a majority, found him guilty.
Held, on appeal, that the evidence did not establish the source from which the small particle of material had been obtained; that, accordingly, the jury should not have been allowed to take into consideration the evidence regarding it; and that, as it was impossible to hold that this evidence had not had considerable influence with the jury, the conviction must be quashed.
Peter Williamson and Adam Potter Allan Forrester were tried in the High Court at Edinburgh before Lord Guthrie and a jury on an indictment at the instance of His Majesty's Advocate which set forth that "you did, on 7th September 1951, break into the premises occupied by Blyths, Limited, at 16-42 Earl Grey Street, Edinburgh, and there by means of explosives force open a lock-fast safe and steal therefrom £780, 6s. 8½d. of money."
The evidence against Forrester was entirely circumstantial and was directed mainly to three points, viz., (1) that, when arrested on 10th September, he was in possession of a considerable sum of money which included some notes taken from the safe, (2) that a cut on one of his fingers corresponded with a cut on a rubber glove found near the scene of the crime, and (3) that a piece of material found in one of his pockets corresponded with the material of a cotton bedspread used in connexion with the crime.
In relation to the second point, evidence was given by Dr James Davidson, police surgeon, that he had examined Forrester at the Central Police Station, Edinburgh, on 11th September 1951. This evidence was objected to by counsel for the panel on the grounds that the accused was not asked to give his consent to the medical examination, that it was not made plain that the result of the examination might be used in evidence or that he was not compelled to submit to it, and that he was given no opportunity of being examined by another doctor of his own choosing. Admittedly Forrester had been charged and cautioned before the examination. The objection was repelled. The witness then gave evidence to the effect that the accused had a small cut, about three or four days old, on the middle finger of the left hand, and that the rubber glove also had a cut on the middle finger of the left hand and bore marks of blood. There was evidence from other witnesses that a window had been broken in effecting entry to the premises and that there were bloodstains on the safe.
In relation to the third point Dr Frederick Smith Fiddes gave evidence to the effect that on 13th September 1951 he received from the police two test tubes, one containing a small particle of pink material and the other a larger particle of pink material, and a pink bedspread. A police witness spoke to having delivered to Dr Fiddes one sealed test tube, but the source of its contents was not proved. Dr Fiddes stated that for examination purposes he mounted the small particle of pink material on a slide (referred to as Label No. 9, Slide A) and mounted a strand from the other test tube, which was labelled as having already been taken from the bedspread, on another slide (referred to as Label No. 9, Slide B). He also examined a strand from the pink bedspread (referred to as Label No. 3). Counsel for the panel objected to the witness's giving evidence regarding his examination of the strand from...
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