In the Scottish Courts
| DOI | 10.1177/002201835101500405 |
| Date | 01 October 1951 |
| Published date | 01 October 1951 |
| Subject Matter | Article |
In the Scottish Courts
MUST
THE
CLERK OF COURT
BE
CONSULTED ?
Stevenson and another v. Heatly
Is
it
"part
of our criminal law
and
practice
that
a
lay
magistrate must of necessity consult a legal assessor on
any
point of law
that
may
arise in a case" ?Counsel's
contention
that
this was so
and
that
failure to follow this
rule was
"a
fundamental nullity" which
must
result in
the
quashing of
the
conviction was rejected
by
the
High Court
of Justiciary in
the
case now reported.
The point arose
out
of proceedings which took place in
the
Burgh Court of Edinburgh in which George Stevenson
and
another were charged
that,
being known thieves,
they
were, on a
date
specified in
the
complaint, found
in
apublic
house with
intent
to commit
the
crime of theft, in contra-
vention of a section of
the
Burgh Police (Scotland) Act,
1892, which has been adopted
and
applied to
the
City of
Edinburgh. While examining awitness
at
the
trial,
the
prosecutor asked
the
witness
"And
what
happened
next?
"
In
answer to this innocent question,
the
witness replied
"I
felt a
hand
in
the
right pocket of
my
trousers";
where-
upon
the
accused's agent objected to
the
admissibility of
what
he called
"that
line of evidence" on the ground
that
it
pointed to a charge (attempted theft)
not
libelled in
the
complaint. Such evidence, he argued, tended to prejudice
the
court against his clients
and
was therefore incompetent.
The magistrate, without calling upon
the
prosecutor to
reply
and
without consulting
the
Clerk of Court (who is, of
course, his legal assessor), repelled
the
objection. The
agent
then
(no doubt with a view to
an
ultimate appeal)
asked
that
the
objection
and
the
magistrate's decision be
noted in
the
Minutes of Proceedings. No further reference
was made
to
the
answer given
by
the
witness. The accused
178
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