Hay v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 17 May 1968 |
| Docket Number | No. 8. |
| Date | 17 May 1968 |
| Court | High Court of Justiciary |
HIGH COURT.
Full Bench. Lord Justice-General. Lord Guthrie. Lord Migdale. Lord Cameron. Lord Johnston.
Procedure—Warrant for dental examination of suspected person before apprehension or charge—Competency.
Evidence—Competency—Evidence improperly obtained—Dental impressions and other evidence obtained under warrant.
During investigation of a murder suspicion fell on a youth partly because the impression of his bite appeared to correspond with the mark of a bite on the deceased. On the application of the procurator-fiscal the Sheriff-substitute granted a warrant to the police to convey the youth to a dental hospital and to two dental surgeons to make a further dental examination of him. He had not been charged or apprehended. The evidence thus obtained was admitted at his trial.
Held by a Full Bench that the warrant was competent and therefore that the evidence obtained under it was admissible.
Observed that such a warrant should be granted only in special circumstances.
Observed further that even if the warrant had been incompetent, the evidence would have been admissible in view of the danger of its being lost.
Gordon Hay was charged on an indictment which set forth, that "you did, on 6th August 1967, at St Mary's Cemetery, Carwood Road, Biggar, Lanarkshire, assault Linda Karen Peacock, aged 15 years, … and did strike her on the head with an instrument, bite her breast, tie a ligature round her wrist, tie a ligature round her neck and strangle her, and you did murder her."
The accused pled not guilty and was tried in the High Court at Edinburgh by the Lord Justice-Clerk and a jury on 26th February 1968 and following days.
In the course of the trial counsel for the panel objected to the admission of a Crown production, a warrant granted by a Sheriff-substitute of Lanarkshire. The Lord Justice-Clerk thus described the circumstances and significance of the objection:—"The accused was indicted on a charge of murdering Linda Peacock on 6th August 1967. When the dead girl's body was found, there were on the right breast the marks of a human bite which had been inflicted at or about the time of death. The question thereupon arose as to whether these marks could assist in the identification of the murderer, andper contra the elimination of the innocent. With this in mind, the police obtained from twenty-nine persons, with their consent, impressions of their teeth. These persons were, in the main, inmates (including the accused) and members of the staff of Loaningdale Approved School, which is situated not far from the scene of the crime. Casts were made from these impressions and twenty-four were eliminated as having no connection with the bite. Further impressions were then taken, with their consent, from the remaining five. Four of these were eliminated, the remaining one being that of the accused. The Crown's experts then asked that a further impression be taken of the accused's teeth, on the basis that this might confirm certain views which they had formed.
"This request placed the Crown in a situation of some difficulty. The accused was by this time under grave suspicion. Accordingly, even if a further impression had been taken on the same basis as the previous two (and it was by no means certain that he would agree to this), it was very doubtful whether any evidence relating thereto and based thereon would have been admissible. On the other hand, although the evidence then existing might have justified the accused's arrest, the Crown were understandably reluctant (looking at the matter from the accused's point of view as well as their own) to take that step in so serious a case, when they did not know what confirmation (or possibly the reverse) the further impression might yield. They accordingly presented a petition to the Sheriff-substitute at Lanark narrating briefly the facts above mentioned and stating that it appeared possible that marks on the body were made by the teeth of the accused and that it was necessary in the interests of justice and for the furtherance of the investigation into the murder that further impressions, photographs and measurements of his teeth be taken. The petition then asked the Sheriff-substitute “to grant warrant to the officers of Lanarkshire Constabulary to proceed to Rossie Farm Approved School, Montrose, and to convey said Gordon Hay from said Rossie Farm Approved School to the Glasgow Dental Hospital, and to grant warrant to Dr Warren Harvey, M.R.C.S., L.R.C.P., F.D.S., consultant at Glasgow Dental Hospital, and to Mr W. R. E. Laird, B.D.S., H.D.D., F.U.S., senior lecturer at Glasgow Dental Hospital, to take such further dental impressions...
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