A good time to walk away?

If there are indeed too many lawyers in Scotland, some thinking of early retirement may find their minds made up by a reading of any of the recent guides to the Human Rights Act 1998.  The sort of argument with which one feels (fears?) we will become very familiar cropped up in Matts v Cumming 1999 GWD 10-454 where, broadly, it was argued that it was oppressive that a complaint instituted at the instance of the local authority should be dealt with in a district court for which the same authority was a responsible and in which the clerk of court was their employee.  This was said to deny the appellant her right to a fair and impartial hearing as guaranteed by sec 6 of the European Convention on Human Rights.  In refusing the appeal, the Court took the view that as the clerk would always be an employee of the local authority, parliament must have thought that this was all right and it was not for the Court to take a contrary view.

Intellectually bracing as such cases are it may be more useful for the present that we should turn to bread-and-butter matters such as road traffic.  Wilson v Lees 1999 GWD 9-456 sees the appeal court confirming a sentence of three months’ imprisonment for driving three times over the limit where there was a previous analogous conviction.  So far as disqualification is concerned, the case of Manelly v Scott 1999 GWD 9-441 draws to one’s attention what may not be generally known, namely that by virtue of s 26(12) of the Road Traffic Offenders Act 1988, an interim disqualification is treated, administratively, as reducing a mandatory ban.  It is surprising, perhaps, that we do not have more cases in which the accused is ordered to forfeit the car used in the commission of the offence.  One such is Cairns v Howdle 1999 GWR 10-478, in which such an order was made in a case of dangerous driving.  In the circumstances (the car had been provided for the appellant by his father who had taken a loan to pay for it) this was held to be excessive and the matter was resolved, rather curiously, on an undertaking that the father would be given the car or the proceeds of sale thereof by the appellant.  Stewart v Brown 1999 GWD 15-723 is a case about the breath test and in particular whether the police were exceeding their powers in terms of s163 (1) of the Road Traffic Act 1988 in carrying out a campaign in which all drivers were stopped and invited to take a breath test.  A driver who refused would be allowed to go on his way, unless alcohol was smelled on his breath.  The court, in refusing the appeal, held that there was a distinction between random stopping and random requirements to take a test.  Another recent case about police powers, incidentally, is Skirving v Russell 1999 GWD 15-701, in which it was held that the powers of search conferred by 14(7) of the Criminal Procedure (Scotland) Act 1995 include the power to search the handbag of the detainee.  The situation as regards a similar requirement made by a lay person was considered in McIntosh v Scott 1999 GWD 13-597 where someone told to turn out their pockets by the doorman of a nightclub was found to have a number of Ecstasy tablets.  It was argued, unsuccessfully, that this was unlawful search and that the appellant should have been warned about the possible consequences of handing over the drugs, the Court holding that there had been no physical search and that the rules about police officers did not apply to lay people.

So far as drugs are concerned, there have been cases which may seem to send out inconsistent signals.  In Moohan v HMA 1999 GWD 7-336 (being concerned in the supply) and Wright v HMA 1999 GWD 7-337 (possession with intent to supply)) sentences respectively of four months for a first offender and one year for someone who had been out of trouble for six years were held to be appropriate.  However, in the case of Robertson v Higson 1999 GWD 14-640, a sentence of fifteen months detention on a sixteen year old first offender for being concerned in the supply of heroin worth £2000 (and more inside) into prisons quashed and community service substituted.

Two cases about admissibility of evidence in rather special circumstances are worth noting.  Jack v HMA 1999 GWD 13-590 deals with what may have been said during an adjournment by an accused to a dock duty officer.  Evidence of what had happened was allowed at the trial, but the appeal was successful on the basis that the accused was at the time under the protection of the court against police officers obtaining further evidence from him and that what the officer had said to him, considered objectively, had been liable to provoke a response.  In Macdonald v HMA 1999 GWD 6-291 there was a successful appeal against conviction on the ground that s 259 of the Criminal Procedure (Scotland) Act 1995 had been misapplied.  Three child witnesses had refused to speak about the matters in question and the Crown had successfully moved the court to allow their statements to the police to be put in evidence.  The High Court held, however, that this was wrong, in as much as the children had not been directed to answer that question and this particular section was aimed at refusal rather than inability or difficulty.

There has been another case in which the knotty problem of corroboration by distress has been considered by the High Court.  This is Kennedy v HMA 1999 GWD 15-691.  The facts, of course, are peculiar to the case, but it is clear that distress, along with other circumstantial items of evidence, may corroborate the victim’s evidence of the use of force necessary to distinguish robbery from theft.  Still on the question of corroboration, Gray v Clark 1999 GWD 15-694 involves an interesting consideration by the appeal court of the problem of a “corroborative” statement which contains a significant amount of discrepancies.

So far as substantive crimes go, it may be that Paterson v Lees 1999 GWD 9-414 will not turn out to be of widespread importance but it does involve the unusual consideration of whether one can commit a crime by passive conduct.  The appellant had been present while young children, for whom he was babysitting, watched an obscene video which one of them had selected and played.  The charge in question was one of conducting himself in a shameless and indecent manner, an old warhorse that has competed successfully in some surprising cases, but here the appeal court drew the line and said that there had to be shown an intention to commit the offence and some conduct directed towards some person.  Accordingly the list of situations where failure to act may be criminal has not been extended.

So far as criminal procedure is concerned, Johnston v HMA 1999 GWD 7-323 is an appeal against the repelling of a plea in bar of trial by the sheriff.  The reason for the plea was that the Crown had destroyed the remains of the car in question and the appellant wished to have them inspected, the charge being one of a contravention of s 3A of the Road Traffic Act 1988.  In refusing the appeal, the court recognised that there might be some prejudice to the appellant, but not enough to say that a fair trial would be impossible, although the door was left open for the trial judge to take a different view having heard the evidence.  Poitter, Petr 1999 GWD 12-569 is another case, in this instance brought by way of petition to the nobile officium, about the correct procedure which the court must follow before withdrawing a legal aid certificate.  Here the petitioner had left the court during the lunch adjournment and had been arrested in connection with another matter by officers who would not let him return.  It was held that the court, not having been addressed on the reason for what had happened was not in a position to find reasonable cause for withdrawing the certificate in terms of rule 33.3 of the Act of Adjournal (Criminal Procedure Rules) 1996 (SI 1996/513).  The case may be compared with Brannigan, Petr. 1999 GWD 11-514, a case in which the appellant had pleaded guilty but failed to appear for sentence on three occasions, with his solicitor being unable to offer any explanation for this.  It was held that the petition fell to be granted since in terms of the aforementioned rule 33 the court had to hear the person in receipt of legal aid before directing the withdrawal of the certificate.  In Milton v McLeod 1999 GWD 6-295 the focus was again on the presiding judge.  Here a Bill of Suspension was brought on the basis that by virtue of certain things that the sheriff said during the evidence of the accused’s wife it appeared that he had already reached and expressed a concluded view about the evidence.  The bill was passed on the basis that such remarks as “Surely that went beyond a practical joke” and “Oh come on, live in the real world” were not questions to the witness and there was a risk that justice was not evidently seen to be being done.  Garrow v HMA 1999 GWD 11-497 is yet another case about prevention of delay, in which the sheriff had granted a four month extension of the twelve month period.  The problem arose largely by virtue of the fact that by the time citations were served one of the Crown witnesses had gone abroad and did not appear at the trial, the citation having been left at the witness’s home with one of his friends.  It was argued at appeal that the Crown should have served by post as permitted by s 66(3) of the Criminal Procedure (Scotland) Act 1995, which would have reached the witness before he left.

The appeal was refused, it being held that the Crown was not at fault, although a shorter extension of two months was allowed.