cases for evidence Flashcards
(20 cards)
Lawrie v Muir 1950 JC 19
Improperly obtained evidence
2 inspectors who were employees of a company acting in association with the Milk Marketing Board who had obtained evidence by a search of the accused shop. The accused’s assent to the search has been obtained by a positive misrepresentation made to her - evidence was inadmissible.
Cadder v H.M. Advocate 2011 SC (UKSC) SLT 1125
(Improperly obtained evidence)
(Confessions)
Accused had had no access to legal advice prior to police questioning. It was held in this case that under ECHR all accused persons must have the option of a lawyer before police questioning.
H.M. Advocate v Chalmers 1954 JC 66
Confessions
The accused was under suspicion of murder, after interrogation by the police led to a field where the murdered man’s purse was. High Court quashed his conviction and held that the visit to the field was all part and parcel of the interrogation and the evidence was inadmissible.
Davie v Edinburgh Magistrates 1953 SC 34
(Evidence, Opinion Evidence, ‘Expert Evidence’
Only one side had called an expert witness. Held that the trial judge was not bound to accept the conclusions of the witnesses, having considered evidence in the case as a whole. but could not rely on the passages in a publication which an expert witness had used as evidence. Experts role is to provide information on matters outwit normal experience.
Sweet v Parsley [1970] AC 132
Strict Liability - Defences
The defendant, the tenant of a farm, sub-let rooms there for short periods; there was a common right to use the kitchen. At the time of the alleged offence the defendant lived elsewhere. She retained a room at the farm for her own use but she visited the farm only occasionally to collect rent, letters, etc. On rare occasions she stayed overnight. Part of the premises was used by a sub-tenant, without the defendant’s knowledge, for smoking cannabis resin. She was convicted under s.5(b) of the 1965 Act, and the Divisional Court upheld the conviction on the ground that her lack of mens rea was irrelevant, the offence being absolute. Held, that the defendant’s appeal be allowed, since (1) the offence under s.5(b) was not absolute, and (2) the defendant had no mens rea
H.M. Advocate v. Gallacher 1951 JC 38
Error - Defences
Appeal against conviction on indictment, Power of High Court to hear additional evidence, Conditions on which new evidence admissible - error to if he took part in the lethal beatings
Stewart v Nisbet 2013 SCL 209
Error - Defences
A former police officer appealed against conviction for assaulting a social care assistant by wrapping sellotape around her head, causing her breathing to be restricted. He had done this as a prank rather than with the intention to assault this woman, and believed that she would have thought the prank would have been funny and so there was an error to consent.
Owens v H.M. Advocate 1946 JC 119; 1946 SLT 227
Error - Defences
Held that for the purpose of setting up self-defence it was sufficient for the panel to satisfy the jury that he believed on reasonable grounds that he was in imminent danger; that grounds for such belief might exist even although he was mistaken in thinking that the deceased was armed; and that, accordingly, the jury had been misdirected on the essential elements of self-defence, and the conviction must be quashed - error must be genuine and reasonable.
Brennan v H.M. Advocate 1977 JC 38
Voluntary Intoxication
A youth was charged with the murder of his father by stabbing him with a knife. To this charge a special defence of insanity was lodged. It was contended that the appellant was so intoxicated by the voluntary consumption of drink and the drug LSD (a hallucinogenic drug) that at the time of the alleged crime he was insane within the meaning of the law. It was contended that in any event the evidence of self-induced intoxication was such as to entitle the jury to hold that the quality of the crime should be reduced from murder to culpable homicide. The trial Judge in his charge to the jury withdrew the special defence from their consideration and directed them that the evidence of the appellant’s state of intoxication did not entitle them to return a verdict of culpable homicide. The appellant was convicted of murder, and appealed. Appealed was refused
Ross v. H.M. Advocate 1991 JC 210
Involuntary Intoxication and Automatism
HM Advocate v Ross was a 1991 Scots criminal law case decided by the High Court of Justiciary. The defendant had been charged with violently attacking others in a public house, but was allowed to go free on the premise that he was in a state of non-self-induced automatism. Others in the bar had slipped LSD and other drugs into his beer without him knowing, and there was only a small amount of alcohol he had been drinking so he was not responsible for his intoxication which led to the violent actions.
Thomson v. H.M. Advocate 1983 JC 69; 1983 SLT 682
Coercion
Accused of robbery and he was the getaway driver, but he argued a gun had been held and he had marks on his hand. He appealed and then the court noted the four requirements discovered by Hume on coercion:
- There must be an immediate danger of death or great bodily harm.
- There must be inability to resist violence.
- The accused must play a backward and an inferior part in the perpetration of the crime and
- The accused must make disclosure of the facts and restitution of the spoils (giving the money back) on the first safe and convenient occasion.
R v. Dudley and Stephens (1884) 14 QBD 273
Necessity
Some men were asked to take a yacht from England to Australia – in 1884 so would be a hazardous and dangerous activity, the yacht was not in great condition and sank on the travel to Australia. 4 men ended up on a small life boat and for 20 days they survived off a tin of turnip. Then 2 men killed one of the boys (17-year-old – Richard Parker) who was very ill and ate him. Survived on his flesh for a few more days and then spotted a ship and were rescued. They were very open about killing him and everyone had been very forgiving about this circumstance. Held that it was not necessarily to take this boy’s life, you cannot commit murder on the grounds that is necessary to do so.
Moss v. Howdle 1997 SCCR 215
Necessity
First case where the Scottish courts recognised the charge of necessity. Mr Moss was charged with speeding on a motorway at 100mph, said it was necessarily for him to speed as his passenger was in pain and drove at great speed to get to the next service station, and accused the passenger of having a heart attack when he was having a foot cramp. Court stated that he could have pulled over- not a good example of necessity as there has to be a lesser of two evils.
H.M. Advocate v Anderson (2006, unreported)
Necessity
Mr Anderson was charged with murder by running someone over with his car, there had been a fight with youths and thought if him and his son didn’t drive away, they would be killed by these youths. The only way to escape was to run someone over but the person was a third party. Mr Anderson was acquitted.
H.M. Advocate v. Doherty 1954 JC 169
Self Defence
Where the accused had killed the deceased with a bayonet when being attacked by him with a hammer, the High Court of Justiciary directed the jury as to the defence of self-defence. Must be no alternative, reasonable force only.
Fenning v. H.M. Advocate 1985 JC 76
Self Defence
An accused was charged with murder, to which he lodged a special defence of self-defence. The presiding judge directed the jury shortly after beginning his charge that for that defence to be established there had to have been “no cruel excess of violence on the accused’s part”. His Lordship stated towards the end of his charge that provocation might reduce the charge of murder to one of culpable homicide if the jury were satisfied that the deceased’s conduct had been so violent and threatening as to have caused the appellant temporarily to have lost his self-control. Held that a very clear distinction required to be drawn between self-defence and provocation; if the former failed the only proper verdict was one of murder unless the jury, on renewed consideration of the evidence, concluded that the degree of provocation should reduce the verdict to one of culpable homicide.
Thomson v H.M. Advocate 1986 SLT 281
Provocation
Held, that whether looked at individually or together the evidence of the business dealings and of the minor assault was not sufficient to entitle the jury to consider provocation. In this case there was no element of immediate retaliation to provocative acts and no relation between the minor force used against the accused and the violence used in by him. In these circumstances the trial judge had correctly withdrawn the issue of provocation from the jury; and appeal refused.
Drury v. H.M. Advocate 2001 SCCR 583
Provocation
D appealed against his conviction for the murder of a woman with whom he had been in a relationship, on the ground of misdirection. At the trial he had given evidence that the fatal assault, namely an attack with a hammer, followed his discovery that the deceased was having intercourse with another man, and had pleaded provocation. The trial judge directed the jury as to the standard definition of murder, namely that culpable homicide occurred where there was no intention to kill and the circumstances fell short of the required degree of wicked recklessness for murder and that for provocation to succeed the violence used should not be disproportionate to the provocation offered.
Gillon v H.M. Advocate 2007 JC 24
Provocation
G was found guilty of murder. He appealed against conviction arguing that the trial judge misdirected the jury in that he should have directed them that evidence relating to provocation, and proportionality between provocation and retaliation in particular, were simply factors which they should have taken into account in performing their general task of determining whether the accused had a wicked intent to kill or was wickedly reckless as to the consequences at the time he killed the victim.
Donnelly v H.M. Advocate [2017] HCJAC 78
Provocation
The appellant was convicted of murdering Jamie Johnstone by repeatedly striking him with a knife. At trial he had lodged a notice of self-defence of another, Cameron Ferguson, on the basis that he had acted under “reasonable apprehension that the deceased was about to attack Cameron Ferguson with a bottle”. This self-defence was not presented to explain the actual use of the knife, merely to explain the reason for its presentation. It was not therefore a special defence of self-defence at all, in relation to the charge facing the accused.
