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Chalmers, J. (2007)
Languages: English
Types: Article
Subjects:
  • The results below are discovered through our pilot algorithms. Let us know how we are doing!

    • 1 A D Gibb, “Fair play for the criminal” 1954 JR 199. No doubt the title of Gibb's article is unfortunate given the presumption of innocence (hence the title of this note), but Gibb did not seem particularly enamoured with that rule either: see the same article, at 199-200.
    • 2 1926 JC 1.
    • 3 Gibb (n 1) at 219.
    • 4 Gibb (n 1) at 199.
    • 5 Welsh v HM Advocate (1974) 38 J Crim L 151; HM Advocate v O'Donnell 1975 SLT (Sh Ct) 22; Jamieson v Annan 1988 JC 62.
    • 6 See generally A G Walker and N M L Walker, The Law of Evidence in Scotland, 2nd edn, by M L Ross with J Chalmers (2000) paras 9.11-9.21.
    • 7 [2006] HCJ 5, 2006 SLT 946, 2006 SCCR 305.
    • 8 Higgins at para 5 per Lord Macphail.
    • 9 The three accused were then acquitted of all charges after the Crown decided not to proceed on certain charges and Lord Macphail sustained a submission of no case to answer in respect of the remaining charge. See para 30.
    • 10 Covert Surveillance: Code of Practice, issued by Scottish Ministers under the Regulation of Investigatory Powers (Scotland) Act 2000 s 24(1) and brought into force by the Regulation of Investigatory Powers (Covert Surveillance - Code of Practice) (Scotland) Order 2003, SSI 2003/183. The text is available at http://www.scotland.gov.uk/Publications/2003/03/16695/19532.
    • 11 Para 23.
    • 12 Para 29.
    • 13 Para 24, citing Henderson v HM Advocate 2005 JC 301 at para 36 per Lord Hamilton. See also Gilchrist v HM Advocate 2005 JC 34.
    • 14 Para 29.
    • 15 1988 JC 62.
    • 16 1988 JC 62 at 64 per Lord Justice-Clerk Ross. Here, Lord Ross is simply approving the conclusion reached by Sheriff Macphail (as he then was) himself in HM Advocate v O'Donnell 1975 SLT (Sh Ct) 22.
    • 17 Higgins at para 21.
    • 18 Khan v United Kingdom (2001) 31 EHRR 45; Gilchrist v HM Advocate 2005 JC 34. Furthermore, it is now settled that s 57(2) of the Scotland Act 1998 does not act to prevent the Lord Advocate (or a procurator fiscal) from leading evidence obtained in breach of article 8: McGibbon v HM Advocate 2004 JC 60.
    • 19 Khan v United Kingdom (2001) 31 EHRR 45; Allan v United Kingdom (2003) 36 EHRR 12.
    • 20 (1993) 97 Cr App R 365.
    • 21 (1993) 97 Cr App R 365 at 374 per Simon Brown LJ.
    • 22 See Higgins at para 27.
    • 23 A J Ashworth, “Excluding evidence as protecting rights” [1977] Crim LR 723.
    • 24 Although it might not be thought that such expectations could be particularly strong, the relevant Code of Practice states that police cells are included within “residential premises” for the purposes of RIPSA: see Higgins at para 23. This interpretation of the statute is doubted by Sir Gerald Gordon in his commentary on the case (at 2006 SCCR 318). Cf A Ashworth, “Should the police be allowed to use deceptive practices?” (1998) 114 LQR 108 at 137.
    • 25 In addition to Higgins itself, some of the earliest relevant Scottish cases suggest that this distinction is of importance: Tait and Stevenson (1824) Alison, ii, 536 (but see John Johnston (1845) 2 Broun 401, where the accuracy of Alison's note of that case is doubted) and Miller (1837) Bell's Notes 244.
    • 26 Nor have the Scottish courts been prepared to accept at common law that exclusion of evidence is a necessary consequence of irregular activity by investigatory authorities: see Lawrie v Muir 1950 JC 19 at 26-27 per Lord Justice-General Cooper.
    • 27 Allan v United Kingdom (2003) 36 EHRR 12.
    • 28 R v Hebert [1990] 2 SCR 151; R v Broyles [1991] 3 SCR 595; R v Liew [1999] 3 SCR 227.
    • 29 R v Swaffield and Pavic [1998] HCA 1.
    • 30 R v Roberts [1997] 1 Cr App R 217, but see R v Jelen and Katz (1990) 90 Cr App R 456.
    • 31 Kuhlmann v Wilson (1986) 477 US 436.
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