Frame v Houston
| Jurisdiction | Scotland |
| Judgment Date | 24 January 1991 |
| Docket Number | No. 19. |
| Date | 24 January 1991 |
| Court | High Court of Justiciary |
JC
L. J.-C. Ross, Lords Caplan, Brand.
Procedure—Solemn procedure—Warrant to take sample of hair—Indictment already served—Whether competent for respondent prior to trial petitioning sheriff for warrant to take sample of hair from complainer for comparison with human hairs found on items recovered from locus of crime—Warrant granted after service of second indictment—Sheriff's discretion.
An accused person had been arrested and charged with assault and robbery and had appeared in the sheriff court on 6th August 1990 when he was committed for further examination and remanded in custody. He re-appeared on 7th August 1990 for the purpose of judicial examination and again on 14th August 1990 when he was committed to prison until liberated in due course of law, bail being refused. On 7th September 1990 masks, allegedly used in the perpetration of the offences, were received by the police forensic science laboratory. On 14th September 1990 the procurator fiscal requested that the accused provide samples of head hair for comparison with hair found on the masks and the accused agreed to provide, and did provide, samples which were taken on 17th September 1990 and received eo die at the laboratory. The samples were insufficient for comparison purposes. The accused was thereafter indicted for trial at the High Court in the sitting beginning on 12th November 1990. On 19th November 1990 that indictment was deserted pro loco et tempore on the motion of the Crown, there being an error in its drafting.
On 28th November 1990 the procurator fiscal indicated to the accused's agents that the Crown wished to have further samples of the accused's head hair in order to carry out a repeated attempt at comparison. The accused refused to consent to this being done and the procurator fiscal sought a warrant. Before applying for a warrant the procurator fiscal again proceeded to indict the accused for trial at the High Court on 7th January 1991. The cause was thereafter adjourned until a further sitting of the High Court to commence on 4th March 1991. On 10th December 1990 the procurator fiscal presented a petition to the sheriff craving a warrant to take the further hair samples which warrant was granted by the sheriff with the execution thereof being suspended until 24th December 1990 in order for the accused, if so advised, to challenge its granting. The accused thereafter presented a bill of suspension against the sheriff's order.
Held (1) that there was no bar to the competency of the granting of a warrant of this kind until the case came to trial so that it had been competent for the sheriff to grant the warrant at the stage at which he had been invited to do so; and (2) that, although it had been competent to grant such a warrant the sheriff had not been obliged to grant the warrant but had had a discretion, which he had exercised properly in this case; and bill refused.
Passage in Macdonald's Criminal Law (3rd edn., p. 269)disapproved.
John Frame presented a bill of suspension to the High Court of Justiciary in which he prayed for suspension of a pretended warrant dated 17th December 1990 whereby the sheriff (J.D. Allan), in the sheriffdom of South Strathclyde, Dumfries and Galloway at Lanark, granted warrant to a police surgeon acting on the instructions of Stewart R. Houston, procurator fiscal, Lanark, to proceed to the prison at Barlinnie, Glasgow and to take from the complainer such a sample of hair as said doctor considered reasonably necessary for the furtherance of comparison of the said hair.
The terms of the statement of facts for the complainer and answers thereto for the respondent are adequately set forth in the opinion of the court.
The complainer pled:— "(1) The said order granted by the sheriff being incompetent, it should be set...
To continue reading
Request your trial
-
Maclean v Dunn (Procurator Fiscal)
...Lord Uist, 16 November 2011, unreported Advocate (HM) v RudlingUNK 2010 SCCR 155 Begley v NormandUNK 1992 SCCR 230 Frame v HoustonSCUNK 1991 JC 115; 1992 SLT 205; 1991 SCCR 436 Hay v HM AdvocateSC 1968 JC 40; 1968 SLT 334 Jalloh v GermanyHRCUNK (2007) 44 EHRR 32; 20 BHRC 575; [2007] Crim LR......
-
Bill Of Suspension By (1) Holman Fenwick Willian Llp And (2) Duff & Phelps Ltd Against Procurator Fiscal, Glasgow
...been ongoing High Court proceedings. Nevertheless, the obtaining of a warrant in such circumstances had been competent (Frame v Houston 1991 JC 115). It was accepted also that all that the Crown had wanted to obtain were the materials excluded from the revised chronological bundle. It appea......
-
HM Advocate v Edwards and Alexander
...v HM AdvocateUNKWLR [2010] UKSC 43; 2011 SC (UKSC) 13; 2010 SLT 1125; 2010 SCCR 951; 2010 SCL 1265; [2010] 1 WLR 2601 Frame v HoustonSCUNK 1991 JC 115; 1992 SLT 205; 1991 SCCR 436 Hampson and ors v HM AdvocateUNK 2003 SLT 94; 2003 SCCR 13 Hay v HM AdvocateSC 1968 JC 40; 1968 SLT 334 Lawrie ......
-
Bill Of Advocation By Hma Against David Callaghan
...had been indicted to the preliminary hearing in the High Court. [3] The sheriff accepted t hat it was competent, standing Frame v Houston 1991 JC 115 at 118-119, for the Crown to apply for a warrant to the sheriff, notwithstanding the existence of High Cou rt proceedings. However, he had re......