Lambie v H. M. Advocate
| Jurisdiction | Scotland |
| Judgment Date | 23 July 1973 |
| Docket Number | No. 9. |
| Date | 23 July 1973 |
| Court | High Court of Justiciary |
JC
L. J.-G. Emslie, L. J.-C. Wheatley, Lords Cameron, Milligan, Kissen.
Procedure—Trial—Special defence—Onus of proof—Effect of evidence in support of special defence other than insanity.
Evidence—Special defence other than insanity—Onus of proof.
Held that the only purpose of such a special defence is to give fair notice to the Crown. When such notice has been given the only issue for the jury is to decide upon the whole evidence before them whether the Crown has established the accused's guilt beyond reasonable doubt. Where such a defence is pleaded all that requires to be said of it by way of charge to the jury is that if the evidence given in support of the defence is believed or creates reasonable doubt as to the guilt of the accused he should be acquitted.
References in Lennie v. H. M. Advocate, 1946 J.C. 79and in Owens v. H. M. Advocate, 1946 J.C. 119 to there being an onus upon the accused to establish a special defencedisapproved.
John Lambie was charged with theft on an indictment at the instance of Her Majesty's Advocate.
The panel pleaded not guilty and lodged a special defence in which he incriminated certain other named persons.
After trial before a Sheriff and jury on 10th and 11th January 1973 he was found guilty by a majority. During the course of his charge to the jury the Sheriff directed the jury as follows:—"Reverting now, ladies and gentlemen, to the accused Lambie, and the charge upon which he faces you, he has given evidence himself. Now, if you believe what he says and if what he says is consistent with innocence, then of course you will acquit him. He has put forward a special defence of impeachment—this means that he is saying it was not he who committed the crime, but that it was some others. In order that he may succeed in this he must produce evidence and corroborated evidence. Now, it seems to me that he certainly has not done the second thing, and it is doubtful if he has done the first thing. There is no corroborated evidence which would entitle you to come to a decision on the special defence of impeachment put in by the first accused. Therefore you will not consider that special defence. Now, in saying that I am not in any way saying that you have not to consider the allegations—because that is really what his evidence amounted to—with regard to other people being involved. All I am saying is that there is insufficient evidence to entitle you to find the accused not guilty on the basis that he has made out a special defence of impeachment. The other evidence, and the inference which Mr McSherry invited you to draw from the evidence relating to some other people having been involved, is still before you, and if that evidence produced in your minds a reasonable doubt then, of course, you will acquit the accused because, as I say, it is for the Crown to prove beyond reasonable doubt that the accused person is guilty."
The accused presented an application for leave to appeal against his conviction on the ground, inter alia, that the Sheriff misdirected the jury with regard to the special defence of incrimination.
The application was heard before the High Court of Justiciary (consisting of the Lord Justice-Clerk, Lord Milligan and Lord Kissen) on 23rd March 1973. The Court granted leave to appeal on another ground, and since the ground of appeal relating to the special defence involved consideration of the recent practice in charging juries the application was remitted to a court of five judges.
On 29th June 1973 the application was heard before the Lord Justice-General, the Lord Justice-Clerk, Lord Cameron, Lord Milligan and Lord Kissen.
At advising on 23rd July 1973, the opinion of the Court was delivered by the Lord Justice-General,—
LORD JUSTICE-GENERAL (Emslie).—John Lambie was charged on indictment with theft. To this charge he pled not guilty and lodged a special defence of incrimination, naming certain persons as the perpetrators of the crime. In due course he was tried before a Sheriff and jury. By a majority the jury found him guilty as libelled, and he was sentenced to two years' detention in a Young Offenders' Institution.
[Having referred to a matter with which this report is not concerned, his lordship continued—]
After conviction Lambie presented an application for leave to appeal against conviction. The application in its final form was based upon two alleged misdirections in the Sheriff's charge to the jury. [The Lord Justice-General narrated the first ground of appeal with which this report is not concerned.] The second ground of attack was that the Sheriff, it was said, misdirected the jury upon the special defence of incrimination. At the hearing of the application the Court of three judges granted leave to appeal upon the...
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Richard Joseph Coubrough's Executrix V. Her Majesty's Advocate
...of appeal, paragraph 1.1.(i) was not pressed. The appellant drew attention to the proximity of the trial to that in Lambie v HM Advocate 1973 JC 53; the appeal in which had corrected an erroneous statement of the law in relation to onus of proof. That statement had stemmed from Lennie v HM ......
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R v Lambert
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Note Of Reasons Given By Lord Brodie In Application For Leave To Appeal To The United Kingdom Court By Michael Stuart Against Her Majesty's Advocate
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Ross v HM Advocate
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