Smith v H. M. Advocate
| Jurisdiction | Scotland |
| Judgment Date | 25 March 1952 |
| Date | 25 March 1952 |
| Docket Number | No. 14. |
| Court | High Court of Justiciary |
High Court
Lord Justice-Clerk. Lord Mackay. Lord Patrick.
Procedure—Preparation for trial—Obligation on Crown to disclose existence of evidence to defence—Extent of obligation—Miscarriage of justice—Criminal Appeal (Scotland) Act, 1926 (16 and 17 Geo. V, cap. 15), sec. 2 (1).
A man was charged on indictment with assault and murder. At the locus the police found, in addition to the dagger with which the accused was alleged to have committed the crimes and which was included in the list of productions, a sheath-knife, whose existence was not known to the Procurator-fiscal until after the pleading diet. Three days before the trial the Crown were informed that in relation to the charge of murder a special defence of self-defence was to be tendered at the trial. By that time the accused's advisers knew of the existence of the sheath-knife. The special defence was lodged without objection; and on the second day of the trial, after all the evidence of fact had been led on behalf of the Crown, the officer in charge of the police investigation, in answer to a question put by the Advocate-depute, disclosed that the sheath-knife had been found at the locus. The, Advocate-depute then observed to the presiding Judge, in the presence of the jury, "that it was only after the special defence had been lodged that this came to the notice of the Crown, and none of the witnesses apparently attached any importance to it." The accused was convicted on both charges. In an appeal, he contended, inter alia, that he had been gravely prejudiced by the Crown's failure to disclose the existence of the sheath-knife before the trial, and by the circumstances in which its existence had been disclosed at the trial.
Held (1) that there had been no obligation on the Crown to inform the defence of the existence of the sheath-knife before the special defence of self-defence was intimated; and (2) that, in the whole circumstances of the trial, no substantial miscarriage of justice had occurred; and appeal dismissed.
Observations as to the principles on which the Crown's obligation to furnish information to the defence rests, and the circumstances under which it arises.
Opinion reserved on the question whether an appeal under sec. 2 of the Criminal Appeal (Scotland) Act, 1926, is the proper method of dealing with a matter of alleged administrative irregularity in the preparation of a case.
James Smith was charged on an indictment at the instance of His Majesty's Advocate which set forth "that you did on 16th November 1951, in the Ancient Order of Hibernians Hall at 108 Royston Road, Glasgow, (1) assault William Mullen Loudon, 20 Moodiesburn Street, Glasgow, and did cut or stab him on the chest with a dagger or other similar instrument to his severe injury; and (2) assault Martin Joseph Malone, 18 Acrehill Street, Glasgow, and did cut or stab him on the face and chest with a dagger or other similar instrument and you did murder him."
The trial took place in the High Court of Justiciary, Glasgow, before the Lord Justice-General and a jury, on 26th and 27th February 1952. On 27th February 1952 the jury convicted the accused on both charges, and he was sentenced to death.
He then applied, under the Criminal Appeal (Scotland) Act, 1926,1 for leave to appeal against his conviction on the second charge. The reasons of appeal with which this report is concerned were:—"(2) That a dagger found by the police at the scene of the alleged crime and most material to the question of the accused's guilt or innocence was not produced by the Crown. (3) That the name of the person who found the dagger was not placed on the Crown list of witnesses. (4) That all knowledge of this weapon was withheld from the Judge and jury until the second day of the trial, when there were no remaining witnesses to fact for the Crown, it being first referred to during the examination of a police inspector who had merely received the dagger from another officer and had not been present when it was discovered. (5) That during the evidence of this inspector the Advocate-depute stated to the Court in the presence of the jury that none of the witnesses apparently attached any importance to the dagger and that this observation was to the grave prejudice of the appellant. (6) That the presiding Judge failed adequately to direct the jury as to how they should approach the charge of murder in the light of the evidence relating to the discovery of the said dagger and in particular as regards its bearing upon the special defence of self-defence."
The facts are summarised in the rubric and are fully narrated in the opinion delivered by the Court when dismissing the appeal.
The case was heard before the High Court of Justiciary on 19th, 20th, 21st and 24th March 1952, when leave to appeal was granted and the appeal was fully argued.
At advising on 25th March 1952, the opinion of the Court was read by—
LORD JUSTICE-CLERK (Thomson).—The charges against the appellant were that he did on 16th November 1951, in the Ancient Order of Hibernians Hall at 108 Royston Road, Glasgow, (1) assault William Loudon and did cut or stab him on the chest with a dagger or other similar instrument to his severe injury; and (2) assault Martin Malone and did cut or stab him on the face and chest with a dagger or other similar instrument and did murder him. On the first charge a plea of guilty was tendered but the Crown refused to accept it. On the Saturday afternoon or evening before the Tuesday on which the trial opened, a special defence of self-defence on the second charge was intimated by telephone to the Advocate-depute, and the special defence was lodged without objection on the Tuesday morning at the commencement of the proceedings. The jury unanimously found the appellant guilty on both charges. The present appeal is confined to the second charge.
Twelve grounds of appeal were advanced. Counsel for the appellant departed from the first ground, which was "that the verdict is unreasonable and cannot be supported having regard to the evidence." Of the remaining grounds, Nos. 7 to 11 inclusive are directed against the charge and raise the sort of matters which would ordinarily arise in a case of this kind. The other grounds 2 to 6 inclusive arise out of a specialty in this case, 2 and 3 being devoted to what happened before the trial, 4 and 5 being devoted to the Crown's conduct of the trial and 6 raising the question of the adequacy of the charge in regard to the special situation which arose.
The specialty in the case is that on the second day of the trial, after all the evidence of fact had been led on behalf of the Crown, and while
Inspector Beaton, the officer in charge of the police investigation, was in the box, he was asked a question which we quote along with what followed on it. "(Q.) Was anything else found in the hall in the course of your investigation that you have not told us about and is not a production? (A.) There was. There was a small sheath-knife. (Q.) Why was that not produced? (A.) It was shown to the witnesses and they all identified…Mr Watt: I think I must object to this. We should have had notice about this, and I think it should have been produced so that the defence could have known something about it. This is the first we have heard about this. The Advocate-depute May I...To continue reading
Request your trial
-
Arthur Kearney V. Her Majesty's Advocate
...of a trial (H.M. Advocate v. Aldred 1922 S.L.T. 51, per Lord Salvesen at page 52 and Lord Ormidale at page 53 and Smith v. H.M. Advocate 1952 J.C. 66). [26]It was recognised that there had to be a framework which secured judicial independence and was recognised in law, but it was not necess......
-
Indulis Lukstins V. Her Majesty's Advocate
...with authorities dealing with the general responsibilities of the police in relation to the investigation of crime (eg Smith v HM Advocate 1952 JC 66, Lord Justice Clerk Thomson at p 71), and would be at odds with authorities before and after Wade dealing with police investigations after ch......
-
Fraser v HM Advocate
...been understood since Slater v HM Advocate 1928 JC 94; see also Downie v HM Advocate 1952 JC 37, p 40 per Lord Justice General Cooper; Smith v HM Advocate 1952 JC 66, p 72 per Lord Justice Clerk Thomson. As Lord Rodger said in McLeod at p 79F-G, our system of criminal procedure proceeds on......
-
Stuart Drury V. Her Majesty's Advocate
...27 February 1952, unreported. Smith was convicted of murder and appealed unsuccessfully, the appeal being reported on another point (1952 J.C. 66). The Appeal Court did not comment on this aspect of the Lord Justice General's direction on provocation. Since the passage in the charge has som......
-
Disclosure of Records and Privacy Rights in Rape Cases
...prosecutions is one of the cornerstones of adversarial procedural justice and a long-standing principle in Scots law.11Smith v HM Advocate 1952 JC 66. It is a fundamental component of a fair trial, in particular the principle of equality of arms whereby the greater resources of the state to......
-
Police Accountability in Scotland: [2] ‘New’ Accountabilities
...the results of the investigationThe Police Journal, Volume 75 (2002) 63 justify prosecution' (Lord Justice Clerk Thomson Smith v HMA (1952)JC66 at 71-2). Indeed, it is possible as a matter of law for investigationand prosecution decisions to be undertaken by the Crown with minimalor even no......
-
Investigators and Prosecutors or, Desperately Seeking Scotland: Re‐formulation of the ‘Philips Principle’
...are precognosced by the Crown. For a recent, critical,description of the precognition process,see the Campbell Report, ch 7.14 SmithvHMA 1952 JC 66,per Lord Justice Clerk Thomson, 71(emphasis added).15 There are few accounts of currentprosecution arrangements i n England andWales as such, s......