Hm Advocate v Thomson
| Jurisdiction | Scotland |
| Judgment Date | 02 December 1993 |
| Docket Number | No. 9. |
| Date | 02 December 1993 |
| Court | High Court of Justiciary |
JC
LJ-G Hope, Lords Allanbridge, Cowie.
Procedure—Solemn procedure—Appeal—Advocation—Trial—Objection taken to evidence during trial—Sheriff upholding objection—Whether competent for trial to be interrupted for Crown to seek advocation of the sheriff's decision
In a trial of exceptional length and complexity, objection was taken to the Crown's line of evidence in respect of a particular witness. That objection was upheld by the sheriff. While the trial was still running, the Crown sought to present a bill of advocation against that decision, the sheriff having adjourned the diet in order for this to be done. The respondent contended that such a bill was incompetent. The Crown argued that it was competent in certain exceptional cases, of which the present trial was one.
Held (1) that the test was not whether the application could be justified in exceptional circumstances but whether the bill was competent according to the law and practice relating to bills of advocation generally; and (2) that it was not competent for a trial to be interrupted for the purpose of obtaining a review of decisions taken by the presiding judge on objections to the evidence; and billrefused.
Observed (1) that, as the prosecutor had no right of appeal against a decision of a judge on points of law in solemn cases if there were an acquittal, it would be contrary to principle to allow the prosecutor at any stage to advocate a decision which was against him on a point of law arising at trial; and (2) that, although in exceptional cases under summary procedure, where an irregularity of a procedural nature was alleged at the trial diet a bill of advocation might be competent while the trial was still in progress, an order for service would not normally be granted in a case under solemn procedure until the case had been finally determined and the proceedings were no longer at risk of being interrupted.
The Right Honourable The Lord Rodger Of Earlsferry, Q.C., Her Majesty's Advocate, presented a bill of advocation to the High Court of Justiciary the prayer of which sought the recall of a decision of the sheriff (V. J. Canavan) in the sheriffdom of South Strathclyde, Dumfries and Galloway at Hamilton to sustain objections to the line of evidence to be pursued by the Crown in a trial in which George Thomson was the pannel, and to remit the cause to the sheriff in order for him to allow the excluded evidence. The pannel was called in the bill as the respondent.
The bill called before the High Court of Justiciary comprising the Lord Justice-General (Hope), Lord Allanbridge and Lord Cowie for a hearing on 2nd December 1993.
Eo die, at advising, the opinion of the court was delivered by the Lord Justice-General (Hope).
Opinion of the Court—This is a bill of advocation at the instance of the prosecutor in a trial which is at present in progress before a sheriff and jury at the sheriff court in Hamilton. Objections were taken in the course of the trial to the leading of certain evidence by the prosecutor. The sheriff sustained the objections, and the prosecutor now seeks to have these decisions recalled and the case remitted to the sheriff so that he may allow the evidence to be led which was excluded by him as inadmissible.
The trial is one of exceptional length and complexity. The respondent and his co-accused Charles McKain were charged with fraud, the details of which are set out in three separate charges in the indictment. The first charge concerns a fraudulent scheme to steal money payable to the Board of Inland Revenue in respect of Pay As You Earn income tax and national insurance contributions. The...
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