Bhowmick v HM Advocate

Solemn procedure – Admissibility of evidence – Objection to admissibility of evidence. High Court of Justiciary: Refusing an appeal by an appellant who was convicted of a drugs offence and who was granted leave to appeal on a ground challenging the admissibility of evidence concerning the recovery of his mobile phone, counsel having contended during the trial that as the appellant's detention was unlawful, recovery of his mobile phone during a later search was also unlawful, the trial judge having permitted that objection to be raised despite it not being raised as preliminary issue prior to the preliminary hearing and, despite concluding that the appellant's detention was unlawful, having admitted the evidence of the recovery of items during the subsequent search, the court held that s 79A(4) of the Criminal Procedure (Scotland) Act 1995 required the judge to refuse leave to raise the objection and she ought not to have entertained it; the judge gave the appellant an advantage she was not empowered to give and any complaint about the way in which she then disposed of the point argued before her was of no assistance to him.

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