McHugh v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 20 October 1977 |
| Date | 20 October 1977 |
| Docket Number | No. 3. |
| Court | High Court of Justiciary |
JC
L. J.-G. Emslie, Lords Cameron, Avonside.
Review—Comment by prosecutor upon failure of accused to give evidence—Prejudice to accused—Criminal Procedure (Scotland) Act 1975 (cap. 21), sec. 141 (B).1
Review—Misdirection—Evidence of fruits of search admitted by trial Judge—Circumstances in which admissible.
Review—Misdirection—Indictment for robbery—Failure of trial Judge to direct jury that verdict of guilty of reset open to them—Criminal Procedure (Scotland) Act 1975 (cap. 21) sec. 60 (1).2
An accused was charged on indictment, along with a co-accused, with assaulting certain employees in a shop and of robbing them of a sum of money. At his trial, evidence was led by the Crown that shortly after the crime the police became suspicious of the accused and ascertained that certain numbered bank-notes, part of the proceeds of the robbery, had been handed over shortly thereafter in a public house by two men believed to be the accused and co-accused. The police went to the house of the co-accused and arrested him and the accused who was also in the house. After the arrest the police searched the house and the person of the accused. The police gave evidence that this search was with the accused's consent and after he had been charged. They found on the person of the accused certain of the numbered bank-notes and many coins. Despite objection that there was no satisfactory evidence that the search was lawful, the trial Judge admitted this evidence and allowed it to be led before the jury. The accused did not give evidence.
During the course of his speech to the jury the Advocate-Depute, in spite of the terms of sec. 141 (b) of the 1975 Act, commented on five separate occasions on the accused's failure to give evidence on his own behalf. In his directions to the jury, the trial Judge did not direct the jury that they were entitled to return a verdict of guilty of reset in place of the crime indicted. The accused was convicted.
Held that (1) in the circumstances the comments of the Advocate-Depute were not materially to the prejudice of the appellant to such an extent that the conviction should be quashed; (2) in the circumstances the evidence supported the view that the search was lawful, and in any event it was essential as a matter of urgency; and (3) there was no requirement on a trial Judge to give a direction upon an alternative verdict ex proprio motu, and in any event in the circumstances it would have been to the prejudice of the appellant; and appeal dismissed.
Ross v. Boyd (1903) 4 Adam 184, (1903) 5 F. (J.) 64,applied.
Francis M'Hugh went to trial along with Archibald Fletcher upon an indictment which contained six charges. Charge 6 was in these terms:—"you Francis M'Hugh and Archibald Fletcher did on 24th July 1976, while acting along with another person, enter the premises occupied by R. S. M'Coll at 49 Red Road Court, Glasgow, and did there assault Andrea Ingram or Leitch and Margaret Carrigan, employees there and did present a knife and a hatchet or other similar instruments at them, demand money from them and did seize said Margaret Carrigan by the arm, push her towards the rear of said premises, place a knife or other similar instrument against her body and you did rob her of £350.46 of money." The jury returned verdicts of guilty against both accused on charge 6.
The accused presented an application for leave to appeal, in the following terms: "(1) In his charge to the Jury the Advocate Depute...
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...Justiciary by way of note of appeal against conviction. Cases referred to: Clark v HM Advocate (1977) SCCR Supp 162 McHugh v HM AdvocateSC 1978 JC 12 Ross v Boyd (1903) 5 F(J) 64 Upton v HM AdvocateSC 1986 JC 65 Walker v HM AdvocateSC 1985 JC 53 In his report for their Lordships' considerat......
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Moral Legitimacy and Disclosure Appeals
...thus destroying vital evidence that he had been handling copper (which he was suspected of stealing). See, further: McHugh v HM Advocate 1978 JC 12; below at E. Cases such as Bell v Hogg suggest that a search can be rendered legal by urgency. Nevertheless, there has still been a failure to ......