H. M. Advocate v Aitken
| Jurisdiction | Scotland |
| Judgment Date | 23 February 1926 |
| Docket Number | No. 14. |
| Date | 23 February 1926 |
| Court | High Court of Justiciary |
Ld. Anderson.
Evidence—Competency—Statements of panel—Statement to police by boy detained on suspicion of murder—Statement following upon conversation with police—Abnormal mental and physical condition—No legal adviser—Adequacy of warning.
A boy, between sixteen and seventeen years of age, was apprehended by the police and was detained in the police office under suspicion that he had murdered his grandmother, but no charge was made against him then. The boy, who was unwell at the time and was sick and shivering, had a conversation with an inspector, in which reference was made to his movements on the night of the alleged murder. About an hour later, while still in the police office, he made a statement to the police.
Circumstances in which, at his subsequent trial on a charge of murder, Lord Anderson refused to admit evidence as to what he had stated to the police, in view, inter alia, of the youth of the accused, his abnormal physical and mental condition at the time he made the statement, a doubt as to the adequacy of the warning given by the police, the fact that he had not the benefit of the advice of a law-agent, and the fact that the statement had followed upon the conversation with the inspector in which the questions put to the panel had some bearing on the subject-matter of the charge.
Observed by Lord Anderson (1) that the test whether an alleged statement should or should not be admitted is whether, in the circumstances of the accused, its admission would be fair; (2) that, in the case where a charge has not yet been made but a person is merely being detained on suspicion by the police, the Court ought to be more jealous to safeguard that person's rights than in the case where a charge has actually been made against the person under detention.
Thomas Aitken was charged in the High Court at Edinburgh on an indictment which set forth ‘that on Friday, 4th December 1925, in the house at Harperdean, parish of Haddington and county of East Lothian, occupied by Margaret Collin Clements or Cunningham, your grandmother, you did assault the said Margaret Collin Clements or Cunningham [then followed details of the assault], and did murder her.’
The case was tried before Lord Anderson and a jury on 22nd February 1926.
In the course of the trial a question arose as to the admissibility of evidence as to certain statements made by the accused to the police while he was under detention.
The circumstances were as follows:—The accused, who was a boy between sixteen and seventeen years of age, was taken into the custody of the police on the afternoon of the Saturday succeeding the day of the murder, and was detained at the police office. At the time no charge was made against him, and there was no formal warrant for his detention. On Sunday morning, about 10.30, he was seen for the first time by Alexander M'Ghee, detective inspector of the City of Edinburgh Police. The inspector warned him not to say anything, because if he said anything in connexion with the matter a note would be taken of it. At that time the accused was feeling sick and shivering, and the inspector told him to go and lie down and put his overcoat over him. The inspector then went away to prosecute certain inquiries at the procuratorfiscal's office, and returned again in half an hour. On his return he entered into conversation with the boy, and warned him that anything he should say would be noted and used in evidence either in his favour or against him. At this point in M'Ghee's evidence counsel for the accused, who had objected to the line which the evidence was taking, was allowed to intervene in order to explain the nature of his objection. He put the following...
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