Report and Recommendations - Scottish Government

considered that his statements were exculpatory, since they made noadmissions at all concerning the causes of the death. However, at appeal, theHigh Court quashed the conviction on the basis that the statements were“mixed”. Thus a murder conviction was jeopardised by directions on theclassification of whether a statement contained something which might beregarded as incriminatory 40 . Curiously, a similar problem arose in Canada butthis time the trial judge had directed the jury that the statements in questionwere mixed and the appellate court held that they were exculpatory. By givingthe jury a mixed statement direction, the trial judge had erroneously suggestedthat part of the statements amounted to admissions 41 .7.4.13 Despite the dicta in McCutcheon, which is understandable to a criminal lawyerin terms of the development of existing common law principles, the positionremains that, at least so far as proof of fact is concerned, a mixed statement isadmissible at the instance of the Crown but not the defence. That is a veryodd, perhaps unique, position relative to the admission of evidence. On oneview, and certainly if the courts were to adopt an approach focused more onrelevancy than on the need for corroboration, the evidence is either relevant,and thus admissible, as demonstrating the likelihood or otherwise of theaccused committing the crime, or it is not. It is certainly doubtful whether ajury can be expected to understand and to apply the distinction between usinga statement to test credibility and reliability on the one hand and as proof of40 e.g. even mere presence at the scene, see McIntosh v HM Advocate 2003 SCCR 13741 R v Illes [2008] SCC 57309