In the Scottish Courts
| DOI | 10.1177/002201837203600107 |
| Published date | 01 January 1972 |
| Date | 01 January 1972 |
| Subject Matter | Article |
In
the Scottish Courts
NOTICE
OF
SPECIAL
DEFENCE
IN SUMMARY
CASE-
APPEAL
ON
PROCEDURAL
IRREGULARITY-
EVIDENCE
OF
IDENTIFICATION
Adam v. MacNeill
The
accused in Adam v. MacNeill (1971 S.L. T. (Notes)
Nov. 1971) was convicted on a charge of careless driving. When
the trial opened the procurator fiscal depute informed the sheriff
(Downie-Campbell)
that
he
had
been told by the defence solicitor
that
the defence involved an allegation
that
the
car
was being
driven by someone else
at
the time of the incident. He then asked
the
sheriff to rule this was a special defence of impeachment
and
the sheriffdid so.
The
defence solicitor then intimated
that
it was
alleged
that
the
car
had
been driven by a
man
named Beaton.
Beaton was present in court.but was not called as a Crown witness
as the Crown wished to reserve their right to prosecute him if they
thought this necessary. No evidence was called for the defence.
The
first ground of appeal was
that
the sheriff
had
erred in
requiring the defence to give notice of their special defence.
The
Crown conceded
that
the sheriff
had
erred,
and
the case proceeded
on
that
concession, although the court seem to have
had
some
doubts on the matter.
There
is authority
that
the rules regarding
notice of special defence, like those regarding notice of witnesses,
do
not
apply in summary procedure (Howard v. Ross, 1891, 3
White 57)
and
this is confirmed by the existence of specific statu-
tory provision for notice of the defences of alibi (Summary
Jurisdiction (Scotland) Act 1954,
S.32)
and
insanity (Mental
Health (Scotland) Act 1960, s.63(8)).
In
view of the Crown's concession the first question for
the
court was whether the sheriff's error was sufficient in itself to
require the quashing of the conviction, or whether the appellant
had
to show
that
he
had
suffered prejudice. Section 73(2) of the
Summary
Jurisdiction (Scotland) Act 1954 provides
that
no
conviction shall be quashed except on the grounds of incom-
petence, corruption, malice, or oppression, or unless the
High
Court
is of opinion
that
the accused has been misled as to the true
55
To continue reading
Request your trial