McCarroll v H. M. Advocate
| Jurisdiction | Scotland |
| Judgment Date | 09 November 1948 |
| Docket Number | No. 2. |
| Date | 09 November 1948 |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-Clerk. Lord Mackay. Lord Keith.
Review—Solicitor and Client—Poor's Roll—Solicitors for the poor—Sheriff and jury—Accused person assigned services of solicitor for poor—Allegations of want of skill and diligence against solicitor—Miscarriage of justice—Criminal Appeal (Scotland) Act, 1926 (16 and 17 Geo. V, cap. 15), sec. 2 (1).
By sec. 2 (1) of the Criminal Appeal (Scotland) Act, 1926, the High Court of Justiciary may allow an appeal against conviction upon indictment if they think that on any ground there was a miscarriage of justice.
A person accused on indictment in the Sheriff Court was assigned the services of a solicitor for the poor. He was convicted and appealed to the High Court on the ground that there had been a miscarriage of justice in respect that his solicitor—a solicitor for the poor whom he could not change for another—had not been instructed until two days before the trial, that witnesses for the defence were neither precognosced nor cited, that a special defence of alibi was not intimated, that objection was not taken to violations of the laws of evidence, that the defence case was not competently presented, and that the solicitor had failed to apply for an adjournment to allow of proper preparation of the defence case.
Held that lack of skill or diligence in the preparation or conduct of the defence, whether the counsel or solicitor concerned is instructed in the usual way or assigned to the accused as a poor person, cannot be pleaded as constituting a miscarriage of justice; and appealdismissed.
George Paterson Mills Fleming M'Carroll was charged in the Sheriff Court, Airdrie, on an indictment at the instance of His Majesty's Advocate which set forth two charges of theft by housebreaking. He was assigned the services of a solicitor for the poor.
On 3rd September 1948 he was tried by the Sheriff-substitute (A. J. Stevenson) and a jury and was convicted on both charges.
He then applied to the High Court of Justiciary for leave to appeal against his conviction under the Criminal Appeal (Scotland) Act, 1926.1
The reasons of appeal, as amended by leave of the Court, were:—"(1) That quoad the first charge the evidence was insufficient in law to warrant a conviction. (2) That generally with regard to both charges, there was a miscarriage of justice in respect that the appellant did not receive a fair trial for the following reasons extraneous to the record, viz.:—(a) The poor person's solicitor assigned to him by the Court was not instructed until two days before the trial and that as a consequence:—(i) None of the appellant's witnesses were precognosced, none of said witnesses were cited, the appellant's special 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 competently placed before the Court and jury. (ii) 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 a defence and precognosce witnesses, failed to apply to the Court for an adjournment to permit of the appellant's case being properly prepared and presented. (c) The appellant, being a poor 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 person's solicitor who had to undertake the defence at 48 hours' notice resulting in an incomplete presentation of the appellant's case to the jury."The case was heard before the High Court of Justiciary, consisting of the Lord Justice-Clerk, Lord Mackay and Lord Keith, on 9th November 1948.
LORD JUSTICE-CLERK (Thomson).—The applicant was convicted before a Sheriff and jury of two charges of theft by housebreaking, one on 19th June 1948 in Uddingston, and the other between the 17th and 20th July in Bellshill. The applicant now comes to us with an application for leave to appeal. With regard to the first of the two charges, it was argued that the evidence was insufficient in law to support a conviction. Mr Daiches put before us very fairly the position in which the evidence stands with regard to that, and between him and the Solicitor-General there appears to be substantial agreement as to the relevant facts. Our function is simply to say whether there was sufficient evidence to permit a jury to reach the conclusion which it
reached. It seems to me that on a consideration of the account of the evidence we have been given there was sufficient for the jury to reach the conclusion that the applicant was guilty on the first charge.The second ground of application is somewhat unusual. It is said to apply to both charges, and broadly the point is that there was a miscarriage of justice in respect that the applicant did not receive a fair trial for certain reasons which are described as being extraneous to the record. These reasons, summarised by Mr Daiches at the end of his excellent address, are that his client was a poor person who had had a solicitor for the poor assigned to him, and who was not in a position to change that solicitor, that the solicitor had not been instructed till some 48 hours before the trial, that witnesses were not cited and that no proper defence was stated to the Court. Mr Daiches accordingly invites us under section 6 of the Act13 to take further evidence in regard to this defence that was not stated. In other words he now suggests that evidence should be taken in support of a defence of alibi...
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