McANEA v HM ADVOCATE
| Jurisdiction | Scotland |
| Judgment Date | 02 August 2000 |
| Docket Number | No 78 |
| Date | 02 August 2000 |
| Court | High Court of Justiciary |
JC
LJ-G Rodger, Lord Prosser and Lord Allanbridge
Procedure—Solemn procedure—Competency—Trial judge sustaining defence objection to line of evidence-Crown later permitted to seek reversal of ruling on ground not previously argued—Whether competent for trial judge to reverse earlier ruling
Four pannels were tried on indictment for various offences of forging and counterfeiting bank notes and other documents. When the first Crown witness, a scenes of crime officer, was called in order to speak to having gone to an address in Glasgow to take photographs, objection was taken to the line of evidence on the basis that the taking of photographs at that address followed an illegal search warrant. Counsel explained that his objection applied to 14 other warrants, all of which purported to be granted under a non-existent statute. After hearing counsel and the Advocate-depute, who concluded his submissions by arguing that the irregularity in the warrant was limited and could be excused and that the officers did have authority under the relevant statute to search the premises, the trial judge (Lord Cameron of Lochbroom) sustained the objection. The decision was minuted accordingly. The following morning, the Crown having obtained an adjournment overnight to consider their position, the Advocate-depute invited the trial judge to entertain the submission that notwithstanding the invalidity of the search warrants, the evidence should be admitted on the ground that the irregularity in the warrants should be excused in exercise of the court's discretion. The pannels objected that the Advocate-depute's motion was incompetent. The trial judge ruled that the motion was competent because no further evidence had been given on the basis of his earlier ruling, and admitted the evidence previously excluded by his decision. On being convicted, the pannels appealed to the High Court of Justiciary.
Held (1) that it was incompetent for the trial judge to give effect to the Advocate-depute's supplementary submissions and to reverse his decision to uphold the defence objection to the line of evidence (p 647B); and (2) that while the procedure of recording the first ruling in a signed minute was sufficient to show that that decision was irrevocable, the preparation and signing of the minute were not necessary to make it so (p 647G–H); and appeals allowed.
Observed that the fact that the Crown had no right of appeal where the point was wrongly decided against them and the pannel was acquitted formed no basis for questioning the approach which gave finality to such a decision: if the Crown could not put matters right, this was simply one aspect of the general scheme of our present system of solemn criminal procedure under which the Crown had no right of appeal against acquittal (pp 646I–647A).
Thomas McAnea, Raymond Dean, John Joseph McGregor andDennis McGinnis were charged on an indictment at the instance of the Right Honourable The Lord Hardie, QC, Her Majesty's Advocate, the libel of which set forth various charges of forging and counterfeiting bank notes and other documents.
The cause came to trial before Lord Cameron of Lochbroom and a jury in the High Court of Justiciary at Edinburgh.
On being convicted, the pannels appealed to the High Court of Justiciary. The facts of the appeal and the arguments of counsel are sufficiently set forth in the opinion of the court.
Cases referred to:
Burns v Williamson (1897) 2 Adam 308
Frasers v HM Advocate (1852) 1 Irv 1
Lawrie v MuirSC 1950 JC 19
Lowson v HM ADvocateSC 1943 JC 141
R v CrossUNK (1973) 57 Cr App R 660
Thompson v CroweSC 2000 JC 173
The cause called before the High Court of Justiciary comprising the Lord Justice-General (Rodger), Lord Prosser and Lord Allanbridge for a hearing.
At advising, on 2 August 2000, the opinion of the court was delivered by the Lord Justice-General (Rodger).
Opinion of the Court—[1] The appellants are Thomas McAnea, Raymond Dean, John Joseph McGregor and Dennis McGinnis, who were all convicted at the High Court at Edinburgh of various charges of forging and counterfeiting bank notes and other documents, the details of which are not of importance for present purposes. The appellants have appealed against their conviction. Despite an initial and singularly unwise attempt by senior counsel to present the appeal for McAnea on a different basis, in truth all the appeals raise the same short but important point.
[2] At the trial on 27 January 1998 the Advocate-depute [who was not the Advocate-depute who appeared before the Appeal Court] called the first witness for the Crown, Brian McKinven, a scenes of crime officer, who gave evidence of having gone to an address in Beith Street in Glasgow for the purpose of taking photographs. At that point counsel for McAnea objected to the line of evidence, the basis of his objection being that “the taking of photographs in Beith Street followed an illegal warrant and that all action in respect of Beith Street [was] in fact invalid, including the taking of any photographs there”. Counsel went on to explain that the objection did not simply apply to the search warrant for the Beith Street premises but to 14 other warrants. All of the warrants were on a pre-printed form correctly headed “Search Warrant under the Forgery and Counterfeiting Act 1981” but the crave was for a warrant “in terms of the Forgery and Counterfeiting Act 1989, Section 24(1)”. The Justice of the Peace “granted warrant as craved”. There is in fact no Forgery and Counterfeiting Act...
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Wright v HM Advocate
...them to custody in respect of extradition proceedings. Cases referred to: Farinha (Re)TLR The Times, 13 Nov 1991 McAnea v HM AdvocateSCUNK 2000 JC 641; 2001 SLT 12; 2000 SCCR 779 Singh v HM AdvocateSCUNK 2001 JC 186; 2001 SLT 812; 2001 SCCR 348 Triplis, PetrUNK 1998 SLT 186; 1997 SCCR 398 T......
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Moral Legitimacy and Disclosure Appeals
...might go some way to explaining the present position (see, in this regard, the confusing situation which arose in McAnea v HM Advocate 2000 JC 641). The appeal court is sensitive, however, to the fact that each case will depend on its own circumstances. It does not, therefore, always admit ......