In the Scottish Courts
| Date | 01 October 1948 |
| DOI | 10.1177/002201834801200407 |
| Published date | 01 October 1948 |
| Subject Matter | Article |
In the Scottish Courts
PROCEDURE
(1)
The
Noting
of
Objections
SECTION 41 of
the
Summary
Jurisdiction (Scotland)
Act
1908 imposes upon acourt of
summary
jurisdiction
the
duty
of formally noting certain objections taken,
by
one or other of
the
parties to a prosecution, in course of a
hearing.
The
section is in
the
following
terms
:
" Proceedings under this Act shall be conducted summarily, viva
voce,
and, except where otherwise provided, no record need be
kept
of
the
proceedings other
than
the
complaint,
the
plea, a note of any
documentary evidence produced,
and
the
conviction and sentence
or other finding of
the
court;
but,
in
the
event of
any
objections being
stated
to
the
competency or relevancy of
the
complaint or proceedings,
or to
the
competency or admissibility of evidence, such objections
shall,
if
either
party
desires it, be noted in
the
record."
In
the
recent case of Frame v.
Fyfe
(in which Mrs.
Frame
appealed against conviction in
the
Peebles
Burgh
Court) counsel raised,
at
the
hearing of
the
appeal, anovel
point.
The
conviction, he suggested,
must
be quashed
because of
the
failure of
the
clerk of
the
court below
to
note objections
taken
to
the
admission of certain prose-
cution evidence although
(1)
the
objections
had
been
sustained
and
the
evidence excluded
and
(2)
the
prosecution
had
not
asked
that
they
should be noted. The
Lord
Justice Clerk, delivering
the
leading judgment of
the
High
Court, dismissed this contention
with
the
observation
that
he did
not
think
that
section 41 contemplated
the
noting
of successful objections
and
that,
even if
it
did, no prejudice
had
been suggested and
the
point was
"purely
formal".
Lord Mackay characterised
the
point
taken
as " one of
the
most
utter
technicality"
and expressed
the
opinion
that
section 41 provided not for
the
recording of all objections
but
for a selective recording on certain
conditions-one
of
which was
that
either
the
prosecution or
the
accused
had
asked for a recording. Admittedly, in
the
case now
under
894.
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