H. M. Advocate v Lee
| Jurisdiction | Scotland |
| Judgment Date | 23 October 1922 |
| Date | 23 October 1922 |
| Docket Number | No. 1. |
| Court | High Court of Justiciary |
Lord Blackburn.
Evidence—Witness—Admissibility—Wife of accused a witness for Crown—Offence ‘involving bodily injury’ to child—Indecent conduct towards child—No actual physical hurt—Criminal Evidence Act, 1898 (61 and 62 Vict. cap. 36), sec. 4 and Schedule—Children Act, 1908 (8 Edw. VII. cap. 67), sec. 27 and First Schedule.
A man was tried upon a charge of using certain lewd, indecent, and libidinous practices towards a girl aged six.
Held (by Lord Blackburn) that the offence was an ‘offence involving bodily injury’ to the child within the meaning of the First Schedule to the Children Act, 1908, although, admittedly, no actual physical hurt had been done to her; and that, accordingly, the wife of the accused could, in virtue of the provisions of that Act and of the Criminal Evidence Act, 1898, be called and examined by the Crown as a witness.
James Lee was charged in the High Court at Glasgow on an indictment which set forth, inter alia, that ‘you did … on said 4th August 1922, in your said house at 28 Cathedral Street, use lewd, indecent, and libidinous practices and behaviour towards Sarah Bradley Crawford, aged 6 years, daughter of and residing with William Crawford at 50 Cathedral Street aforesaid, and did (a) place her on your knee, take down her knickers, and place your hand on her private parts; … and (c) lift her on your knee, put her legs round you and place your private member in contact with her private parts and press her towards you.’
The case was tried before Lord Blackburn and a jury on 23rd October 1922.
In the course of the case for the Crown the Advocate-Depute stated that the next witness he proposed to put into the box was the wife of the accused, and he asked his Lordship to rule that she was a competent witness. He argued,—The effect of the Criminal Evidence Act, 1898, sections 1 (c), 4 (1), and Schedule, and the Children Act, 1908, section 27 and First Schedule,* was, indisputably,
that the husband or wife of the person accused could be called by the prosecution and examined as a witness where the offence for which the accused was on trial was an ‘offence involving bodily injury to a child or young person.’ The question in the present case was whether the offence charged involved bodily injury in the sense of the First Schedule to the Act of 1908. In the present case no physical damage had been done to the child, but the Crown submitted that, none the less, the...
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F. v Kennedy
...or touching a child on her private parts could not constitute bodily injury. In this connection he drew attention to H.M. Advocate v. Lee 1923 J.C. 1, H.M. Advocate v. Macphie 1926 J.C. 91 and B. v. KennedySC 1987 S.C. 247. In H.M. Advocate v. Lee, a question arose as to the admissibility o......
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B. v Kennedy
...time; and (4) that the proper standard of proof was that of the balance of probabilities; but (5) that (not followingH.M. Advocate v. Lee 1923 J.C. 1) "bodily injury" meant "physical injury" so that ground 2 (b) had not been established; and appealallowed in Mrs B., the mother of a child S.......