In the Scottish Courts

Publication Date01 January 1969
Date01 January 1969
DOI10.1177/002201836903300107
SubjectArticle
In
the
Scottish
Courts
FRESH EVIDENCE ON
APPEAL-CONFESSIONS
Thompson
o. H.M.
Ad»,
THE first point in
Thompson
u. H.M. Adv. (1968, S.L.T. 338) arose
out
of a letter written by the accused's sister after his conviction
for the murder
of
their grandmother, in which she claimed
that
the
murder
had
been committed by her. She
had
been a witness for the
defence at the trial,
and
had
given evidence about the grandmother's
movements which,
if
true, would have made it impossible for the
accused to have been guilty
of
the murder.
Her
evidence was clearly
disbelieved by the jury.
It
was no
part
of
the defence case at the trial
that
the sister
had
committed the murder.
The
accused asked the
Criminal Appeal Court to allow him to lead evidence from his sister
in terms
of
s.6(b)
of
the Criminal Appeal (Scotland) Act 1926. This
sub-section empowers the court,
"if
they think fit", to order witnesses
to attend
and
be examined, "whether they were or were not called
at the trial".
In
refusing this application the court referred to a number of
factors, the most important
of
which was
that
hearing the sister's
evidence would in effect involve the retrial of the case, since it
would involve the court in considering the credibility
of
the witness,
which
had
already been determined by the trial jury. There was the
additional complication
that
if
the sister gave evidence for the
defence she would not be protected from subsequent prosecution,
and
any evidence she gave incriminating herself might be used
against her. Consequently, she would have to be warned before
giving evidence that she was not obliged to say anything which
might incriminate her. All these circumstances led the court to take
the view that it would be quite inappropriate to proceed under
s.6(b).
The
Crown
had
suggested in argument
that
the proper
course was for the accused to approach the Secretary of State with a
request
that
he should refer the
matter
to the court under section 16
of the 1926 Act.
It
is difficult, however, to see how this would avoid
the complications raised by the evidence which it was proposed to
lead.
The
other matters with which the appeal court were concerned
arose out
of
astatement alleged to have been made by the accused
51

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