North of the Border
| Published date | 01 April 1968 |
| Date | 01 April 1968 |
| DOI | http://doi.org/10.1177/0032258X6804100408 |
| Subject Matter | North of the Border |
Edited by W. A. Ratcliffe
Assistant Chief Constable of Glasgow
The case of H.M. Advocate v. Mulholland recently reported in
the Scots Law Times is of interest because it appears to have re-
introduced a useful practice. At a sitting of the High Court of
Justiciary held on July 13, 1967, Mulholland was charged on
indictment:
"That
you did on December 24, 1966, in the house occupied by James
McNally at 131, Crownpoint Road, Glasgow, assault Alan Jackson
Loren Martin, residing
c/o
McIsaac at 18, Invercanny Drive, Drum-
chapel, Glasgow,
and
did cut him on the head
and
body with aknife
to his severe injury
and
to the danger of his life,
and
you being con-
scious of
your
guilt, did abscond
and
flee
from
justice
and
fail to
appear
for trial at the High
Court
of Justiciary in Glasgow commencing on
May
1,
1967."
At the first diet on June 23, 1967, objection was lodged on
behalf of the accused that the words after "life" on the fifth
last line were prejudicial, incompetent and irrelevant and should
be deleted from the indictment in the interests of justice.
At the second diet Lord Milligan heard argument and repelled
the objection.
It
was maintained for the defence that since the passing of
the Criminal Procedure (Scotland)Act, 1887, an indictment should
only contain reference to the crime charged, the time and place
where it was committed, the modus in which
it
was committed
and any relevant aggravations.
It
was not competent to include
astatement designed only to show how the Crown proposed to
prove the charge against the accused.
It
was not a criminal
offence to fail to appear for trial nor was
it
an aggravation of
the crime charged and the fact that a panel had previously
absconded did not give rise to any inference of guilt of the crime
charged. The inclusion of the statement was highly prejudicial
to the accused.
In reply the advocate depute quoted the 4th edition of Mac-
donald, The Criminal Law
of
Scotland, published in 1929 which,
on page 445, supported the form of the indictment.
Reference was made to a number of cases, none of which seems
to have been identical in that the failure to apoear was not in-
cluded in the indictment though in two of them it was introduced
in the course of evidence.
April
1968 171
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