McGovern v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 24 January 1950 |
| Docket Number | No. 6. |
| Date | 24 January 1950 |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-General. Lord Carmont. Lord Russell.
Evidence—Competency—Evidence improperly obtained—Scrapings from finger nails of person suspected of housebreaking and safeblowing—Scrapings taken by police without consent before apprehension—Evidence derived from scrapings led at subsequent trial—Police Force.
The owner of a bicycle, which had been found by the police near the locus of a crime, stated to them that it had been stolen and agreed to visit the police station for the purpose of identifying it. While at the police station he came under suspicion of being concerned in the crime, viz., breaking into an office and blowing open a safe with explosives, and a warrant was obtained to search his house. As a further precaution the police, without asking his consent, took scrapings from his finger nails. Later he was charged and apprehended. At his subsequent trial evidence was led that the contents of his nails showed traces of an explosive similar to that which had been used for blowing open the safe, and he was convicted.
Held on appeal that, as the evidence, in question formed a material link in a chain of circumstantial evidence and was highly prejudicial to the accused, it was impossible to excuse the admittedly irregular procedure of the police when obtaining it; and convictionquashed.
John M'Govern was charged in the Sheriff Court at Airdrie on an indictment at the instance of His Majesty's Advocate which set forth that "you did on 25th or 26th August 1949 break into the office at Westrigg Colliery … and in said office did by means of explosives force open a lockfast safe and steal therefrom £29, 17s. 6d. of money. …"
On 9th November 1949 he was tried before the Sheriff-substitute (Stevenson) and a jury, and was convicted of "breaking into the office as libelled and by means of explosives forcing open a lockfast safe with intent to steal therefrom."
Thereafter he presented a note of application for leave to appeal against his conviction, and stated, as a supplementary reason of appeal, the following reason:—"That there was a miscarriage of justice in respect that evidence relative to the contents of the applicant's finger nails was admitted against him at the trial, such contents having been removed from the applicant's body by the police without his specific consent and without warning that such consent could be withheld."
The following narrative of the circumstances is taken from...
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Bell v Hogg
...that there had been no unfairness to the accused; and that the evidence objected to was therefore admissible. M'Govern v. H. M. Advocate, 1950 J. C. 33,distinguished. Observations by Lord Wheatley in Miln v. Cullen, supra, p. (J.) 21 on the necessity of balancing fairness to accused persons......
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(first) Kb And (second) Jg
...than a trivial irregularity such as had been excused in Lawrie v Muir. The case was closer to, for example, that of M’Govern v HM Advocate 1950 JC 33 where the Lord Justice General observed (at 37) that “unless the principles under which police investigations are carried out are adhered to ......
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Lieuwe Hoekstra And Jan Van Rijs And Ronny Van Rijs And Hendrik Van Rijs V. Her Majesty's Advocate
...order to ascertain whether the evidence might be fairly admitted. In addition to Lawrie v. Muir, reference was made to H.M.A. v. McGovern 1950 J.C. 33. It was also submitted, and conceded by the Crown, that the Isolda and those on board her fell within the scope of Article 8. Reference was ......
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Indulis Lukstins V. Her Majesty's Advocate
...1933 JC 72, LJG (Clyde) at 78, Lord Morison at 89). Thus, fingerprinting (Adair (supra)), taking of nail scrapings (McGovern v HM Advocate 1950 JC 33), examining wounds (Forrester v HM Advocate 1952 JC 28) and taking body rubbings (Bell v Hogg 1967 JC 49) could all be carried out after char......
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‘If a Picture Paints a Thousand Words’: The Development of Human Identification Techniques in Forensic Anthropology and Their Implications for Human Rights in the Criminal Process
...and Criminal Evidence Act 1984 (PACE), ss. 1–2.18 Brown vGlen 1998 JC 4 at 8, per Lord Sutherland, distinguishing McGovern vHM Advocate 1950 JC 33and overruling Normand vCox 1997 SCCR 24.19 Devlin vNormand 1992 SCCR 875. See also Urquhart vHigson 1998 GWD 18-889 (HCJ Appeal).20 Scottish Law......
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Subject Index
...89McDaniel v State, 16 Miss 401, 1847WL 1763 (Miss. Err. & App. 1847) .... 24McGovern v HMA 1950 JC 33 ........... 80,82–83, 84, 85, 90, 91, 93McNeill and Others v HMA 1986 SCCR280............................................... 87, 89Miln v Cullen 1967 JC 21 ................... 93Montgomery......
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Irregularly Obtained Real Evidence: The Scottish Solution?
...adhered to with reasonable strictness, the anchor of the entiresystem for the protection of the public will very soon begin to drag.3129 1950 JC 33 at 135.30 I have commented elsewhere, above n. 12, on the tendency of the Scottish judiciary to merge thewords ‘prejudicial’ or ‘unfair’ and ‘i......