Scottish Court of Session Decisions

This was a petition presented on 5th February 1902 by Sir Kenneth Mackenzie, Baronet, King's and Lord Treasurer's Remembrancer, on behalf of and as representing the Lords Commissioners of His Majesty's Treasury.

Page: 391↓

The petitioner stated—“That in a prosecution at the instance of the Crown against Francis Marley for the crime of bigamy, which is set down for trial at the next Sessions of the Central Criminal Court in London commencing on 10th February 1902, it is necessary for the ends of justice that the original marriage certificate or Schedule C 661, 1875, for the Gorbals district of Glasgow, containing the signatures of Francis Marley and Rose Docherty, the contracting parties to a marriage solemnised on the 27th December 1875, should be produced in Court at such trial in order to prove the signature thereto of the said Francis Marley. That the said principal marriage certificate or schedule is in the custody at Edinburgh of the Registrar-General for Scotland. The present application is therefore made to your Lordships for authority to have the volume of Marriage Schedules for Gorbals Registration District for 1875 containing the said certificate or schedule exhibited before the said Central Criminal Court in London under the custody of an officer to be selected by the Registrar-General, and by whom the said volume shall be restored to the custody of the Registrar-General. That due notice in writing of the intention to make this application to your Lordships has been made for the requisite period to the Registrar-General, who is quite ready to comply with the orders of Court.”

The petitioner prayed the Court “to grant warrant to and authorise the said Registrar-General or any officer duly authorised by him to convey the said volume containing the said principal marriage certificate or schedule to London, and there to exhibit the same in the said Central Criminal Court at the said trial.”

The following letter, dated 6th February 1902, from the Assistant Director of Public Prosecutions to Mr Thomas Carmichael, S.S.C., Edinburgh, was read to the Court—“Dear Sir,—I am in receipt of your telegram of to-day, and in reply I wired you as follows—‘ Rex v. Marley. Am sending by post letter from Clerk of Central Criminal Court and my own assurance that officer will be allowed to retain and take away after the trial the volume containing Marriage Schedule.’ With reference to your telegram I beg to point out that counsel for the Crown cannot give any more binding undertaking than I can give, and I accordingly undertake that, so far as it rests with me, the officer appointed to produce the volume containing the marriage schedule will be allowed to retain custody of the volume and to bring it back with him at the conclusion of the trial. It is not known what Judge will try the defendant, but I enclose a letter from Mr Avory, the Clerk of the Central Criminal Court, who is able to state that it is not the practice of the Court to retain documents, and that there will be no difficulty in allowing the officer to retain custody of the volume and to take it away with him at the conclusion of the trial. I trust the Court of Session will understand that all that can possibly be done to ensure the safe return of the Record will be done. Yours faithfully, Angus Lewis, Assistant Director of Public Prosecutions.”

Mr Avory's letter to the Solicitor to the Treasury was in these terms—“Dear Sir,—Referring to my interview with Mr Rowe on the subject of the prosecution of Francis Marley for bigamy, I beg to say that it is not the practice of this Court to retain documents which are produced in evidence in the cases which come before it, and there will be no difficulty in allowing the officer to retain custody of the volume containing the marriage schedule signed by Marley, and to take it away with him at the conclusion of the trial.—I am, dear Sir, Yours faithfully, (Sgd.) H. K. Avory, Clerk of the Court.”

Counsel, in moving that the prayer of the petition should be granted, stated that there appeared to be a variation in the practice of the two Divisions of the Court in a matter of this kind— Kennedy, July 13, 1880, 7 R. 1129, 17 S.L.R. 760; Earl of Euston, December 5, 1883, 11 R. 235, 21 S.L.R. 170. With regard to private deeds the practice up to 1860 appeared to have been to grant the application, but in that year a deed which had been produced had been temporarily impounded by the English Courts—[ Shedden (decided November 7, 1860), July 19, 1862, 24 D. 1446]—and since then the practice had varied— Dunlop, November 30, 1861, 24 D. 107; Bayley, May 31, 1862, 24 D. 1024. The Treasury gave the assurance contained in the letters that had been read to the Court.

In answer to the Court counsel stated that although he had no specific authority to give any undertaking, he was prepared to say that in the event of its being found that the Register could not be used at the trial without risk of its being impounded by the Court the Treasury would decline to produce it.

At advising—