Law v McNicol
| Jurisdiction | Scotland |
| Judgment Date | 10 June 1965 |
| Date | 10 June 1965 |
| Docket Number | No. 7. |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Strachan. Lord Wheatley. Lord Walker.
Evidence—Competency—Statement made by accused to police officers before having opportunity of seeing solicitor—Possibility that accused influenced by prospect of spending Christmas Day in custody—Fairness to accused.
A man was arrested on a charge of theft and taken to a police station about 8 A. M. on 24th December. At his request the police contacted his solicitor about 9 a.m., but the solicitor was engaged and said that he would come to the police station as soon as possible. At 9.30a.m., when the solicitor had still not arrived, a police officer had a conversation with the accused, in the course of which he mentioned that the court would not be sitting on Christmas Day and that, if the case was not disposed of that day, the accused might be in custody until 26th December. The accused then, having been cautioned and charged, made an incriminating statement.
Held that, in the circumstances, the Sheriff-substitute was entitled to exclude the evidence of the statement as inadmissible.
Francis William Fyfe Law was charged in the Sheriff Court at Aberdeen on a complaint at the instance of Alexander Stuart M'Nicol, Procurator-fiscal, Aberdeen, which set forth that "on 22nd December 1964 in the street outside the premises occupied by Claben Limited, fish merchants, at North Esplanade East, Aberdeen, you did, while acting along with Dennis Mathieson, motor lorry driver, 5 Wardhead Place, Aberdeen, steal 5 containers and 16½ stones of tusk-fish." The accused pled not guilty, but on 5th February 1965, after trial, the Sheriff-substitute (Aikman Smith) found him guilty as libelled and fined him £10. At the request of the accused he stated a case on appeal to the High Court of Justiciary.
The case set forth that the following facts were admitted or proved:—"(1) The appellant was in December 1964 in the employment of Claben Ltd., fish merchants, Aberdeen. He was acquainted with Dennis Mathieson, a motor lorry driver with the firm of Joe Little Ltd., Aberdeen, whose work was to drive loads of fish to the south. The appellant some years ago was in business on his own account and at that time had employed Mathieson on occasions to drive a van for him. (2) On Tuesday, 22nd December 1964, a large consignment of tusk-fish had arrived at the premises of Claben Ltd. The appellant's work that day was to move plastic containers which his co-employees had packed with tusk-fish in a 'fork-lift' truck, of which he was the driver, from one part of the premises to the kilns, which are in another building across the street. No precise check was kept by his employers on the quantity of tusk-fish which the appellant was handling or on the persons who had access to it. (3) At about 4 p.m. on that afternoon Mathieson called at Claben Ltd.'s premises in order to see a relative who was employed there. In the course of this call he had a conversation with the appellant. Later, at about 6 p.m., the appellant and Mathieson had a further conversation in a café in the harbour area. At neither meeting was the conversation concerned with stolen fish, but Mathieson made it known to the appellant that he was driving to North Shields that night. (4) Mathieson left Aberdeen on the night of 22nd December and drove a load of fish for Joe Little Ltd. to North Shields, and delivered this load to a firm of fish merchants there on 23rd December. He informed the managing director of this firm, a Mr Harpham, that he had 20 stones of tusk-fish for sale. Mr Harpham said that he had no use for this tusk-fish himself but that he could find another purchaser. As a result, Mathieson sold a quantity of tusk-fish to another firm in Claben's containers and received a price of £10, of which he paid £1 to Mr Harpham as commission. Mathieson thereafter set off on his return journey to Aberdeen. (5) The weight of the tusk-fish sold by Mathieson was 16½ stones. The fish were contained in 5 metal containers or pans marked with the name of Claben Ltd. These fish and containers were, as Mathieson knew, the property of Claben Ltd., and were taken from their premises in Aberdeen on 22nd December. (6) The purchasers of the tusk-fish had understood that the quantity was 20 stones. After they had taken delivery, they discovered that the quantity was only 16½ stones. They complained...
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