Lowson v H. M. Advocate
| Jurisdiction | Scotland |
| Judgment Date | 08 June 1943 |
| Date | 08 June 1943 |
| Docket Number | No. 19. |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-General. Lord Fleming. Lord. Moncrieff.
Evidence—Witnesses adduced by defence—Admissibility—Want of written notice—Sheriff and jury—Power of procurator-fiscal to waive objection—Power of sheriff to adjourn trial after jury sworn—Review—Power of High Court to examine witnesses excluded at trial—Criminal Procedure (Scotland) Act, 1887 (50 and 51 Vict. cap. 35), sec. 36—Criminal Appeal (Scotland) Act, 1926 (16 and 17 Geo. V, cap. 15), sec. 6 (b).
The Criminal Procedure (Scotland) Act, 1887, sec. 36, enacts that in the case, of a Sheriff Court trial it shall not be competent for the accused to examine any witnesses not in the Crown list, unless three days' notice in writing of their names and designations has been given to the Procurator-fiscal, or unless the accused shows before the jury is sworn that he was unable to give this notice. A copy of the notice must be lodged with the Sheriff-clerk.
A defending solicitor took such a notice and a copy to the Sheriff Court where the trial was to be held five days later. On finding that the Procurator-fiscal's office was in another town, he left both in the Sheriff-clerk's office on the understanding that the notice would be passed to the Procurator-fiscal. At the trial, when he proposed to examine his witnesses, the Procurator-fiscal objected on the ground that he had received no notice of the witnesses, and it was then revealed for the first time that the notice had not been passed to him. The Procurator-fiscal having stated that he had no power to waive his objection, the Sheriff took the view that he had no option but to exclude the evidence, and the accused was thus deprived of the evidence of eight witnesses. In an appeal against conviction,—
Held (1) that the Sheriff should have instructed the Procurator-fiscal that he was entitled to waive the objection, or, alternatively, should have adjourned the trial to enable the Procurator-fiscal to obtain instructions from the Crown Office, and (2) that, in the circumstances, the proper course for the Court now to follow was, not to quash the conviction, but to exercise the power conferred on the Court by sec. 6 (b) of the Criminal Appeal (Scotland) Act, 1926, and to order the witnesses whose evidence had been excluded to attend before the Court for examination.
Held thereafter (diss. Lord Moncrieff) that the additional evidence was not such as to satisfy the Court that the jury's verdict had been pronounced in the absence of matter material and relevant to lead to a contrary result; and appeal dismissed.
Slater v. H. M. Advocate, 1928 J. C. 94,applied.
William Strachan Lowson was charged on an indictment at the instance of His Majesty's Advocate with using lewd, indecent and libidinous practices and behaviour towards a number of boys at a school where he was headmaster. He was tried in the Sheriff Court at Stranraer on 10th, 11th and 12th March 1943 before the Sheriff (Milne, K.C.) and a jury.
At the close of the evidence for the prosecution, when the accused's solicitor proposed to examine the first of the defence witnesses, the Procurator-fiscal objected on the ground that he had not received the written notice prescribed by section 36 of the Criminal Procedure (Scotland) Act, 1887.1 The Sheriff sustained the objection. Thereafter he sustained the same objection in the case of seven other witnesses. As the result, the accused himself alone gave evidence for the defence, and he was convicted and sentenced to twelve months' imprisonment.
He appealed under the Criminal Appeal (Scotland) Act, 1926,2 on the ground, inter alia, that there had been a miscarriage of justice.
The following narrative of the relevant facts is taken from the opinion of the Lord Justice-General: "The solicitor for the accused practises in Glasgow. The two diets took place in Stranraer. The Procurator-fiscal for the district has his office and his place of business at Wigtown. The solicitor for the accused attended the first diet, and on that occasion he saw the Procurator-fiscal in Stranraer in a room within the Sheriff Court building to which he had been directed by someone whom he had asked to direct him to the Procurator-fiscal. On 5th March 1943, which was five days before the second diet, the solicitor went from Glasgow to Stranraer again. He had with him a notice for the Procurator-fiscal in terms of section 36, and a copy for the Sheriff-clerk. He went first to the room in which he had seen the Procurator-fiscal on the day of the first diet, and, finding that locked, he then went to the office of the Sheriff-clerk, where he handed over both the original notice and the copy for the Sheriff-clerk on the understanding that the original notice, although left with the Sheriff-clerk, would be given to the Procurator-fiscal in time to satisfy the requirements of section 36. He was told before he left the office of the Sheriff-clerk that the Procurator-fiscal's office was not in Stranraer but in Wigtown.
At that time, if he had realised that it was necessary for him to take further action in order to supply the Procurator-fiscal with the notice, he might have posted the notice to the Procurator-fiscal in Wigtown, and in all probability it would have been delivered within the time prescribed by the section. He left, however, under the impression, mistaken as it turned out, that he had completely and effectively discharged his duty under the section. When the trial began on 10th March 1943, neither the solicitor for the defence nor the Procurator-fiscal had any inkling that any irregularity had taken place. But, in fact, at that date both the original notice and the copy still remained in the hands of the...To continue reading
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