Scottish Court of Session Decisions

Lord President—This is a petition at the instance of the Lord Advocate, in which he asks for an authority which has admittedly never been granted hitherto, and the point is therefore one of novelty and interest. The petition sets forth that an indictment has been served at the instance of the petitioner upon Francis Lamond Lowson, now a prisoner in the prison of Edinburgh, charging him with the crime of uttering a forged document, and the trial is soon to take place. The document which is alleged to be forged purports to be the last will and testament of a certain Jessie Stewart Skeen. The document was registered in the Books of Council and Session on 17th September 1908, and is there now. The document appears in the indictment as No. 2 of the Crown List of Productions, and the Lord Advocate prays that your Lordships may be pleased to grant a warrant to authorise the Keeper of the Records, or other officer in charge of the said document, to deliver the said document to the Clerk of Justiciary before the 17th June 1910, for the purpose of being used in the said criminal proceedings.

Now it is the case that we have never granted a warrant in these terms hitherto. The documents in the custody of the Registrar as being in the Books of Council and Session have often had occasion to be produced in civil causes, and the regular proceeding is that an order is pronounced upon the Registrar to send an officer—who does not part with the document—to produce it in process. It is said—and I think said with justice—that that course would not be a safe course here, because unless the document is lodged with the Clerk of Justiciary it is difficult to see how it can be a production, and if it is not a production it cannot be produced at the trial in the usual way. Now the reasons against giving up a document in the ordinary case are obvious. It is, as I say, refused even to our own Court for the purpose of being put into process, and there seems to be a good reason for that, because the position of the Clerk of Court in a civil case is not at all analogous to the position of the Clerk of Justiciary. Although the document is put into the custody of the Clerk of Court, it is in the power of the parties to the case to borrow the process—in other words, there are occasions in which the document may lawfully leave the custody of the Clerk. It is quite otherwise in the case of the Clerk of Justiciary. The other case in which production has been refused has been the case where it is proposed to take the document out of the jurisdiction, in which case also this Court has always been in use to make the custody of the document safe by leaving it in the custody of one of its own officers.

Further than that, it seems to me we as the Court of Session are judicially entitled to have cognisance of the other Supreme Court, the Court of Justiciary, of which as a matter of fact we are all members. That being so, and we being judicially aware of the safe custody in which the document would be if it is lodged with the Clerk of Justiciary, I think we ought to further the ends of justice by making the order craved. Therefore I am of opinion that we should grant the petition.

Lord Johnston—I concur.

Lord President — Lord Kinnear and Lord Salvesen also concur, and I have consulted the Lord Justice-Clerk, who takes the same view.