A comeback for Jedart justice?

It is possible that when the Internet brings judgments to the waiting world within seconds of the court making up its mind, surveys like this will become redundant; it is also possible that in the face of a tidal-wave of judicial pronouncements it will be all the more important that some effort should be made to separate, if not the wheat from the chaff, at least the thick cream from the thin milk.

Looking back on 1998, it is tempting to offer an award for the most pointless appeal to get past the sifting stage.  One contender, certainly, along with Templeton (below), would have to be Kerr v Vannet 1998 GWD 39-2003 in which the appellant was at first charged with causing annoyance contrary to the Civic Government (Scotland) Act 1982 sec 54 (1) by playing a musical instrument.  It was argued that, inasmuch as this had been amended to be, by means of a cassette player, the character of the offence charged had been changed.  It had not.  Now, let us turn to road traffic.

Once there was a general belief that it was dangerous, not careless, driving that got you banned.  Further evidence of the general shake-up (now that there is a mandatory ban for 12 months for the former) is to be found in two cases of the latter, Herd v Lee 1998 GWD 37-1890 and McHarg v Hamilton 1998 GWD 37-1891.  In both cases, the appeal court upheld periods of 12 months disqualification, in each case on facts which might formerly have been charged as dangerous.  The moral would seem to be that regardless of what it is called, the court’s reaction will necessarily be to the actual manner of driving.  Should additional illustration of this be required, it may be found in Dawes v McLeod 1999 GWD 2-109, where a fine of £150 and six penalty points (a greater penalty than is imposed in many cases for careless driving,) was upheld for speeding at 60mph in a 30mph zone.

Still on disqualification, the appeal court in Anderson v Colley 1998 GWD 31-1626 agreed that the lower court was correct to impose a period of two years in circumstances where the person involved would be in custody, on another matter, for a year, it not being possible to impose a deferred disqualification.  Incidentally, as regards the crime of driving without insurance (something which often escapes disqualification), it is interesting in Robbins v O’Donnell 1998 GWD 32-1684 to see the court referring to one year as the normal length of ban for such an offence.  Further, in Morris v Lees 1999 GWD 4-224 the appeal court upheld a sheriff’s decision in a case involving driving while disqualified and without insurance, to order forfeiture of the vehicle in question.  Another case in which the fate of the car involved was a prominent issue was that of Wright v Vannet 1998 GWD 37-1942 in which support was given to the proposition that where a driver is disqualified for a long time, his car will thus become available to be sold to help pay a fine.

A road traffic case which perhaps has a wider general implication is Templeton v Crowe 1999 GWD 1-62, which deals with the question of corroboration of the identity of a driver who had been seen to get out after an accident, look at the damage and then drive away.  The appellant later admitted to being the driver but appealed against conviction on the ground that there was no corroboration of this admission.  The appeal was not successful, the court emphasising yet again that where there is an unequivocal admission, little else is required and there was enough here in the surrounding facts and circumstances.

Finally, the totting-up procedure, something of a blunt instrument, was considered in the case of Edwards v Wheelan GWD 37-1940, where what appears to be considerable hardship was judged not to come up to the required standard of exceptional.

Those of us who remember such forensic fiestas as the Cullen mobbing and rioting trial of the early seventies will greet the re-emergence of that venerable crime with mixed feelings, the strongest of which is that it should have little, if any, place in modem criminal jurisprudence.  Some of the difficulties associated with its use are illustrated by the case Coleman v HMA 1998 GWD 35-1782, in particular where the mob may not have started out as, but in the course of its existence may have become, a murderous one.  In particular, one notes that Lords Coulsfield and Abernethy suggested that mobbing and rioting was best charged when the purpose of the mob was clear at the outset and not where it developed as things happened.  Essentially what the Crown had to prove in such a case was that the accused knowingly continued to support the mob after its purpose had become a murderous one.  There would seem to be difficulties inherent in this requirement, except in cases where the purpose of the mob was clearly overt.

It is sometimes difficult to think of anyone who did as much for Crown Office as another old friend, Moorov, who turned up again in the case of Thomson v HMA 1998 GWD 36-1856.  Here there was a successful appeal (although the Crown was allowed to bring a new prosecution, presumably on the basis that it was not its mistake) because of the misdirection by the sheriff.  While the jury had been told about the various points of similarity necessary for the doctrine to come into play, they had not been told that they also had to be satisfied that these similarities pointed to an underlying course of criminal conduct.  While it has been argued in the past that, strictly speaking, the doctrine should be confined to questions of identification of the perpetrator, with the fact that the crimes were committed at all still having to be proved by corroborative evidence, the accepted understanding is clearly that this is not the case.

A newer friend, and one with which we may become increasingly familiar if the present policies of control, rather than care, in the community continue, is the non-harassment order.  In Robertson v Vannet 1998 GWD 36-1865, it was held that the Crown could competently apply for an order even although the individual to be protected already had a civil interdict, that the victim’s father (who had not himself been a party to an offensive telephone call) might still, as a person caused fear and alarm thereby, be a victim in terms of sec 234 (1) of the Criminal Procedure (Scotland) 1965 and that the sheriff was perfectly entitled to select a five year period as necessary for the protection of the people affected and to enable the appellant to get over his fixation.  It is clear that preventative control is going to be the next big thing and it seems probable that we will see the whole law relating to harassment thought about again and, dare one say, more thoroughly.

Cases on criminal injuries compensation are not all that common, but Gray v CICB 1998 GWD 37-1982 deals with a reclaiming motion from the Lord Ordinary’s refusal of a petition for judicial review of a decision to refuse criminal injuries compensation.  It had been argued that the crime of which the woman in question had been victim, procuring sexual intercourse through false pretences, was analogous to indecent assault.  Holding that what the Board had to consider was whether there had been a crime of violence, the appeal court, not surprisingly, refused the reclaiming motion.

Another somewhat unusual case is Beattie v Hingston 1998 GWD 37-1895, which involves a successful bill of advocation against a sheriff’s decision to refuse an accused person’s petition that an order for an identification parade should be made in terms of sec 290 of the Criminal Procedure (Scotland) Act 1995.  The ground of refusal was that the sheriff considered no ground for granting the prayer of the petition had been put forward, but the Appeal Court held that the petitioner had represented that the main point at the trial would be identification and some of the witnesses on precognition were apparently not sure that they could recognise the petitioner.  Accordingly it seemed that the presiding sheriff had not recognised these grounds and had not applied his mind to them.  In passing the bill, the Court did not, however, grant the petition but remitted it for consideration by a different sheriff.

Staying for the moment with criminal procedure, Barr v HMA 1999 GWD 3-132 is another case on the question of the operation of sec 103 of the Criminal Procedure (Scotland) Act 1995 relating to fresh evidence.  In that case the court held that the explanation offered as to why the evidence had not been heard was insufficient.  The important point for our present purposes is the court’s observation that it was highly desirable that information be given to the appeal court as to what an appellant’s solicitors at the time did or did not know about witnesses and their reasons for thinking at that stage why no further enquiries were called for.  It has been recognised for a long time that offensive weapons fall into three categories.  Every so often an explanation is put forward that a particular item like a sword or baton, designed as a weapon, falls outwith that category because it was bought as a holiday souvenir.  The point came up recently in Latham v HMA 1999 GWD 5-239 and was disposed of basically on a “if it walks like a duck” analysis, namely that the souvenir of Greece in question was a baton of solid construction capable of inflicting substantial injury.  If the court had held otherwise we would no doubt have started hearing that the white powder in question was no more than a souvenir of a holiday in Colombia.  Another favourite excuse, that the “weapon” was connected with the appellant’s job, came up for scrutiny in MacKenzie v Vannet 1999 GWD 1-16, a prosecution under the Criminal Law (Consolidation) (Scotland) Act 1995 sec 49.  In this case an axe was found in a car being driven by the appellant and was claimed to be for use in connection with his gardening job.  It was held that the sheriff was correct in deciding that the appellant had not discharged the onus of proving a good reason for possession, having regard to the fact that the axe was placed within easy reach of the driver.  This evidential point is of significance, for it is often the case that what is claimed as an innocent item is to be found in such a position and while this would never be a conclusive consideration, it must now be regarded as a very persuasive one.

And finally there is Matthew v HMA 1999 GWD 2-88, which is about that potentially confusing matter (for juries, anyway, and it is suspected for practitioners) the so-called “mixed statement” made by an accused and referred to in evidence.  While the matter was thoroughly ventilated in the case of Morrison v HMA 1991 SLT 570, the appeal court here had to deal with the question again, Matthew having not given evidence at the trial and the Crown having relied on the incriminating parts of a statement made by him to police officers.  It was said by the appeal court that while it might have been preferable for the judge in his charge to have referred to the evidential value of the statement specifically, there was no need to follow any set formula and it was acceptable for the evidence simply to be considered by the jury, whether for purposes of incrimination or exculpation.

At the time of writing, we are again facing agitation in favour of proposals that people accused of certain crimes should be denied the right to defend themselves.  This follows a proposal from a senior police officer that people charged with certain road traffic offences should have their licences suspended until their trial has taken place.  At this rate, how much longer will the presumption of innocence last?  Will we really be looking to Europe to save us from the deficiencies of our own legal system?  Is Jedart Justice (for the uninitiated, execution first, trial later) making a come-back.