In the Scottish Courts
| Published date | 01 July 1949 |
| DOI | 10.1177/002201834901300306 |
| Date | 01 July 1949 |
| Subject Matter | Article |
In the Scottish Courts
CONDUCT OF
DEFENCE
AS
GROUND
OF
APPEAL
McCarroll v.
H.M.
Advocate (1949
S.L.T.
74)
BEING convicted before a sheriff
and
jury
at
Airdrie of
two charges of
theft
by
housebreaking, George
McCarroll applied to
the
High
Court of
Justiciary
for leave
to appeal, averring (inter alia)
that
"there
was a miscarriage
of justice in respect
that
the
applicant did not receive a fair
trial
for
the
following reasons extraneous to
the
record,
viz.-(a)
the
Poor Persons' solicitor assigned to him
by
the
court was
not
instructed until two days before
the
trial
and
as a consequence
(1)
none of
the
applicant's witnesses were
precognosced, none of said witnesses were cited,
the
appli-
cant's
specified defence of alibi was
not
properly intimated
to
the
Crown,
the
Crown witnesses were not competently
cross-examined,
and
the
case for
the
defence was
not
com-
petently placed before
the
court
and
jury;
(2)
no objection
was
taken
to gross violations of
the
laws of evidence made
by
the
procurator-fiscal when leading evidence for
the
Crown;
(b)
the
said solicitor, having realised
that
it
was
impossible in
the
time allotted to him to prepare adefence
and
precognosce witnesses, failed to apply to
the
court for
an
adjournment
....
and
(c)
the
applicant, being apoor
person, receiving
the
services of a solicitor gratis, as a
privilege, was unable to
pay
for
the
services of another
solicitor
and
was
thus
compelled to retain
the
services of
said Poor Persons' solicitor who
had
to undertake
the
defence
at
48 hours notice resulting in
an
incomplete
presentation of
the
applicant's case to
the
jury".
At
the
hearing of
the
application, counsel pressed
the
court to
allow
the
applicant to lead additional evidence (Criminal
Appeal (Scotland) Act, 1926, section 6 (b)) or alternatively
to quash
the
conviction.
After remarking
that,
in effect,
the
challenge of
the
conviction was an
attack
on
the
diligence
and
competence
283
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