H. M. Advocate v Cunningham
| Jurisdiction | Scotland |
| Judgment Date | 14 April 1939 |
| Docket Number | No. 9. |
| Date | 14 April 1939 |
| Court | High Court of Justiciary |
HIGH COURT.
Ld. Moncrieff.
Evidence—Competency—Statement of panel voluntarily made to police—Statement made without panel having assistance of law agent—Whether statement should have been made before a magistrate—Statement made with reference to a charge of assault—Subsequent death of victim—Admissibility of statement as evidence in trial for murder—Criminal Procedure (Scotland) Act, 1887 (50 and 51 Vict. cap. 35), sec. 17.
A man under arrest, having received the usual caution, was charged with assault to the danger of life and with robbery. On his way from the charge-room to the cells the constable who conducted him drew his attention to a notice hanging in the corridor which stated that a prisoner was entitled to communicate with a law agent, and that he would be assisted to do so. The constable also explained the notice, and told him that, if he could not pay for a lawyer, he would be entitled to the services of an agent for the poor. At a later hour on the same night the accused expressed a desire to make a statement, and, after having again been cautioned, he made a statement to the police.
The man whom the accused was alleged to have assaulted having died, the accused was charged with murder. At his trial objection was taken to the admission of his statement as evidence for the Crown, on the grounds that intimation of his right to have a law agent should have been made to him immediately after his arrest and before he was charged; that the police should not have received his statement but should have taken him before a magistrate in order to have it taken; and, further, that a statement made when the accused was charged with assault and robbery only could not be referred to when he was charged with the more serious crime of murder.
The presiding judge (Lord Moncrieff) allowed the statement to be received in evidence; holding that the intimation as to the right to the assistance of a law agent was adequate and was given in accordance with the usual practice; that there was no general rule that the police must in all cases refuse to hear a statement by an accused and must bring him before a magistrate, and that a statement to the police could not be excluded on the ground suggested; that the fact of death having followed upon the assault did not affect the relevancy or the materiality of the statements of the accused as to his actings, and that it could not be assumed that he would have withheld a statement in answer to the ultimate charge which he was prepared to make in answer to the preliminary charge.
Opinion that the prevalent practice in the matter of intimation to an accused person of his right to have access to a law agent should be reformed, and that intimation should be given before any charge is made.
James Cunningham was charged on an indictment at the instance of His Majesty's Advocate which set forth "that, on 30th December 1938, in the house at Gateside Cottage, Troon, in the Parish of Dundonald, Ayrshire, occupied by Hugh Dykes, retired joiner, you did assault the said Hugh Dykes and did strike him repeatedly on the head with a wooden baton or other similar weapon, and did rob him of a small purse bag containing 30s. in silver, a handbag containing 1s. 6d. of money and a cash box, and you did murder him."
The panel was tried before Lord Moncrieff and a jury at a sitting of the High Court of Justiciary at Ayr on 11th, 12th, 13th and 14th April 1939.
A police sergeant, in giving evidence for the Crown, deponed that the panel was brought into Irvine Police Station on the evening of Friday, 30th December...
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