Report and Recommendations - Scottish Government

7.4.4 The concerns about using exculpatory or partially exculpatory statements as asubstitute for testimony reached their zenith in Hendry 6 , following theattempted re-birth of judicial examination. The accused had not givenevidence in support of his plea of self defence. However, the Crown hadalready led evidence of his judicial examination, at which he had admittedstriking the relevant blow but had explained that he had done so in selfdefence. The court reached the somewhat peculiar decision, at least to amodern reader, that the trial judge had been correct to direct the members ofthe jury that they could use the incriminatory elements of the judicialexamination as proof of fact against the accused but could not do the samewith the exculpatory parts as proof in his favour. Following precedentsrelative to the use of judicial declarations in the days when an accused was nota competent witness, the court said that matters may have been different ifthere had been testimony in support of the self defence. The background tothe case was the court’s perception that there was an increasing tendency forthe defence to use the new judicial examination procedure as a method ofputting an exculpatory version of events before the jury without the accusedhaving to testify 7 .7.4.5 Not surprisingly, the matter had to be revisited soon afterwards. The FullBench 8 decision in Morrison 9 did not concern judicial examination butstatements made by a suspect to the police in an interview about an allegationof rape. The suspect had admitted intercourse but maintained that it had been6 Hendry v HM Advocate 1985 JC 1057 LJ-C (Wheatley) at 109 considered that this should be “stamped out”8 seven judges9 Morrison v HM Advocate 1990 JC 299303