Stark and Smith v H. M. Advocate
| Jurisdiction | Scotland |
| Judgment Date | 12 July 1938 |
| Date | 12 July 1938 |
| Docket Number | No. 25. |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-General. Ld. Fleming. Ld. Moncrieff.
Evidence—Competency—Statement by accused—Statement by accused while under arrest made to police in reply to interrogation—Statement repeated by police to co-accused in presence of accused—Whether statement competent evidence against either accused.
Evidence—Productions—Productions not lodged with Sheriff-clerk but kept in hands of Procurator-fiscal till day of trial—Accused allowed access to productions while in hands of Procurator-fiscal.
Two accused were charged in the Sheriff Court with having stolen a quantity of skins while acting in concert. At the trial evidence was given for the prosecution that, after the accused had been arrested on a charge of having stolen a certain number of skins and had been committed for further inquiry, two police officers visited one of the accused in a cell at the police station. They informed him that certain consignment notes dealing with a larger quantity of skins had come into their possession, and asked him if he cared to give any explanation regarding them. In reply the accused made a statement admitting that he and the other accused had stolen the skins. Thereupon the officers brought the accused into the presence of the other accused, and there repeated the statement which had been made to them. The Sheriff at the trial directed the jury that this statement was competent evidence against both accused.
Held that the statement made by one of the accused to the police officers was inadmissible as evidence against either accused, in respect that it had been made while under arrest and in reply to interrogation regarding the offence with which he was charged; and that it was inadmissible against the second accused, to whom the police officers had repeated it, on the further ground that it was improper to confront an accused with a co-accused in order to repeat in his presence a statement which the co-accused had made; and convictions of both accused quashed.
In the appeal a further ground of objection to the conviction was stated, namely, that certain productions, consisting of barrels, had not been lodged with the Sheriff-clerk, but had been kept until the day of the trial in the hands of the Procurator-fiscal, where the accused were allowed to inspect them.
Observed, per the Lord Justice-General, that productions for the prosecution should be lodged with the Sheriff-clerk and not retained by the Procurator-fiscal. If, from their nature, it was impossible to lodge them with the Sheriff-clerk, they should be lodged in the hands of some suitable custodier representing him.
Daniel Stewart Lorimer Stark and Robert Smith were charged in the Sheriff Court at Edinburgh on an indictment which set forth that "you did, while acting in concert, between 1st January and 5th November 1937, from the premises occupied by St Cuthbert's Co-operative Association, Limited, at Gorgie Cattle Market, Newmarket Road, Edinburgh, steal 808 bunches of skins." The accused were tried before the Sheriff (C. H. Brown) and a jury, and were both convicted. They appealed to the High Court against their convictions, under the Criminal Appeal (Scotland) Act, 1926.
The grounds of appeal in each case were, inter alia:—"(1) That label productions for the prosecution Nos. 5, 6, 8, 9 and 10 were not lodged with the Sheriff-clerk but remained under the...
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