Hopes and Lavery v H. M. Advocate
| Jurisdiction | Scotland |
| Judgment Date | 08 June 1960 |
| Docket Number | No. 17. |
| Date | 08 June 1960 |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-General. Lord Carmont. Lord Sorn.
Evidence—Admissibility—Use of wireless telephony to overhear conversation between victim of crime and one of accused—Whether evidence of police officer as to conversation heard by such means admissible—Eavesdropping.
Evidence—Admissibility—Expert evidence—Tape recording—Evidence of stenographer as to transcript made by her of tape recording of conversation—Stenographer without any qualifications for interpreting recordings—Whether evidence admissible.
Two panels were indicted on charges of extorting money by threats. In the course of their investigation into the charges, police officers by the use of wireless telephony overheard a conversation between one of the accused and the victim. A wireless transmitter attached to the victim relayed the conversation to police officers listening on a wireless receiver, and also to a tape recorder which recorded the conversation. The recording of the conversation was not readily understood, and a transcript of it was made by a stenographer, who had no special qualifications for, or experience in, interpreting tape recordings. In the course of the trial, counsel for the panels objected on the ground of inadmissibility to the evidence of (1) a police officer as to the conversation he had overheard by means of wireless telephony, and (2) the stenographer as to her transcript. The presiding Judge repelled both objections and the panels were subsequently convicted.
Held (1) that, since it would have been competent for evidence to have been led as to a conversation which had been overheard without any artificial aids, it was equally competent to lead evidence of a conversation heard by means of wireless transmission; that it was not a ground on which to object to evidence that it had been obtained by eavesdropping; and that, accordingly, the evidence of the police officer as to the conversation he had overheard by means of wireless telephony had been correctly admitted; (2) (dub. Lord Sorn) that as the stenographer had not any special qualifications for interpreting tape recordings, her evidence was of doubtful competency.
Opinion, per Lord Sorn, that it depended on the particular circumstances of each case whether or not expositions by witnesses without any technical qualifications should be allowed, and that, in the circumstances, the evidence of the stenographer had been correctly admitted.
Observed, per the Lord Justice-General and Lord Sorn, that it was impracticable to play a tape recording repeatedly to a jury in the course of a trial, and that the difficulty could be obviated by leading the evidence of a witness skilled in the interpretation of tape recordings.
Observed, per the Lord Justice-General, that it was incompetent for a jury to play a tape recording to themselves after they had retired to consider their verdict.
John Mackenzie Hopes And Victor Lavery were charged at the instance of Her Majesty's Advocate on an indictment which set forth,inter alia, that "(2) you John Mackenzie Hopes and Victor Lavery, did, on various occasions between 4th and 7th November 1959, both dates inclusive, in Argyle Street, Hope Street, and in the Central Railway Station, Gordon Street, all in Glasgow, threaten said A. B. that unless he paid money to you, you would inform his employers that he had served a term of imprisonment for dishonesty, and that he was addicted to homosexual conduct, and you did put him in such a state of alarm and apprehension that he paid to you various sums of money amounting in cumulo to £8, and you did extort said sums of money from him."
They were tried before the High Court at Glasgow on 22nd, 23rd and 24th February 1960 before the Lord Justice-Clerk (Thomson) and a jury.
The following narrative of the material facts is taken from the opinion of the Lord Justice-General:—"These two appellants were convicted in the High Court in Glasgow of extorting money by threats from a third party, whom I shall refer to as the victim. They have each applied for leave to appeal upon two grounds. One ground relates to the competency and admissibility of the evidence of a Police Inspector, Alexander George; the other ground relates to the competency and admissibility of the the evidence of a Miss Patricia M'Intyre, a police stenographer. As the presiding Judge had allowed the evidence of both witnesses, and as the matter could not be decided by us without a consideration of the evidence, we granted leave and heard a full argument on the appeals in each of these two matters.
"The victim went into the witness-box and spoke to the meetings he had with the two appellants, at which blackmailing demands for money were made on him, and at which payments were extorted from him. His health deteriorated—and this was confirmed by other witnesses, and he finally in desperation went to the police. They supplied him with four marked £1 notes and also with a small microphone to fix in the lapel of his coat, along with a lead to batteries to be placed in his pocket. Conversations between him and another person could thus be transmitted by the microphone, and picked up on a receiving set. The victim met Lavery, one of the appellants, in the Central Station in Glasgow, and the police had installed in a room in the Central Station, set aside for this purpose, a receiving set, loud speaker and tape recorder. The conversation which took place between him and Lavery was picked up by the receiver, and transmitted to the loud speaker and the tape recorder. There was evidence from police witnesses, who were in the station at the time, and who spoke to seeing the victim and Lavery conversing together at the time when the tape was recording a conversation. Lavery was arrested shortly afterwards, and the marked notes which were given to him by the victim in the station were found on him.
"The object of this evidence regarding the conversation in the Central Station was to obtain corroboration of the victim's account of his being blackmailed. The main evidence was of course that of the victim himself. At the trial the tape recording was played back to the jury, who heard the conversation as recorded on the tape. No objection is now taken to the competency of this evidence, which, indeed, was represented to us on the appellants' behalf as the best evidence of the conversation. It appears to me to be in the circumstances quite as competent evidence as, for instance, the shorthand notes of some one who was able to overhear the conversation...
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Note Of Appeal Against Conviction By Justinas Gubinas And Nerijus Radavicius Against Her Majesty's Advocate
...and the identity of persons or things shown on the recording”. He placed reliance on the view expressed in Hopes and Lavery v HM Advocate 1960 JC 104 (LJG (Clyde) at 111) about the undesirability of repeated replays in the court or jury room. Hopes and Lavery concerned a tape recorded (bugg......
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R. v. Sherratt (C.P.), (1998) 66 O.T.C. 122 (GD)
...43]. R. v. Mohan (1994), 166 N.R. 245; 71 O.A.C. 241; 89 C.C.C.(3d) 402 (S.C.C.), refd to. [para. 43]. Hopes et al. v. H.M. Advocate, [1960] S.L.T. 264 (H.C.), refd to. [para. R. v. LeSarge (1975), 25 C.C.C.(2d) 388 (Ont. C.A.), refd to. [para. 45]. R. v. Playford (1984), 17 C.C.C.(3d) 454 ......