Reservations about frivolous grounds of appeal

Inadequate preparation

I doubt if I am the only person who entertains reservations about inadequate preparation and presentation of the defence case as a ground of appeal against conviction. However, the fact is that appeals can and are being taken on this ground often, I dare say, frivolously. An accused, convicted while represented by firm A, goes off with his complaints to their rivals, firm B, with a tale of misfortune, which then appears in an appeal with the unfortunate judge asked for his opinion not only whether or not it was a goal but whether everyone involved had a fair kick at the ball. In some cases, of course, matters may be clearer and the alleged failure may be one the existence of which can be readily discerned and the importance of which can be easily assessed. This appears to have been the case in Garrow v HM Advocate 2000 GWD 26-974 where the critical question in the appeal following a trial on a charge of rape was the non-calling of a defence medical expert. While a report had been obtained from an expert dealing with the question of penile penetration, digital perpetration, something admitted to by the appellant after the report was received, was not considered. In the view of the appeal court a report considering the implications of the appellant’s revised account of what happened should have been obtained, especially in the light of the fact that an expert opinion subsequently obtained indicated that the account given by the appellant was at least consistent with the complainer’s injuries.

Breach of the peace....by e-mail

There is a Law, on the lines of Sod’s and Murphy’s, although I do not think that it has a name, which states that every innovation soon becomes a nuisance. In this spirit we greet the case of HMA v Cook 2000 GWD 21-829 which involves breach of the peace by e-mail. The disorderly manner being specified as “send two e-mail messages of an abusive and threatening nature to X... place the said X in a state of fear and alarm etc.” Those of us who write robust letters should take heed: those of us who are tardy about checking our mail may wonder when and where in cyberspace the crime takes place; all of us will wonder yet again about the general fairness aspects of the charge of breach of the peace. Considerations of fairness arise too in relation to Harvey v HMA 2000 GWD 20-799, an appeal which arises out of the fact that where someone is charged with driving while disqualified along with other road traffic offences, it is customary, out of fairness, to put the charge implying a previous conviction on a separate complaint. The downside of this, as Mr Harvey found out, is that this means consecutive sentences can be passed in respect of the complaints, thus achieving a total that is greater than would be allowed were all matters on the one complaint.

Defective search warrants

Many a criminal case has failed in court because evidence has been rendered inadmissible through some defect in the application for, or preparation of, a search warrant. For this reason it is advisable for defence agents not to take it for granted that all such warrants are always in order, in this connection we turn to the cases of Crowe v HMA 2000 GWD 19-737 and Birse v HM Advocate 2000 GWD 16-649. In the first, where suspension of a warrant was sought on the ground that there had been insufficient basis for seeking it in the first place, the case turned on its particular facts, but the court seems to have felt that procedurally it was undesirable, and perhaps incompetent, to raise such a bill in the middle of a trial. Thought, therefore, should be given as early as possible, and certainly before entering a plea, to such matters. In the second, suspension of a warrant was sought on the ground that the justice who granted it not having kept a record and thus being unable to comment on the particular case, the appellant was not able to consider whether the warrant had been properly granted. The appeal was refused, the court holding that the warrant was ex facie valid and that the justice’s report of his invariable practice coupled with the information given by the Crown was sufficient to entitle it to reach the conclusion that the justice had properly carried out his duty as an independent judicial figure. It is to be hoped that there will not be a spate of challenges to warrants which are ex facie valid in order to find out in what circumstances they were granted, but it does look as though anyone approached to sign a warrant might do well to keep a note of what was said in support of the application.

Road traffic

On the road traffic front, Davidson v Heywood 2000 GWD 19-769 which involved an unsuccessful appeal by a gentleman aged 80 convicted of careless driving being disqualified until he should resit and pass a test is a bit of a puzzle. The driving itself as described scarcely seemed bad enough to warrant disqualification, the appellant had a medical report confirming his fitness to drive and the sheriff did not refer to sec 36 of the Road Traffic Act 1988 which deals with the safety of other road users. Comparisons are odious of course, but one cannot help noticing that on the same day in the case of Robertson v MacNeill GWD 19-768 another careless driving case in which the appellant, using a mobile phone and reading documents while driving, was seen to weave slightly across the carriageway, a period of six months disqualification was reduced to 8 penalty points. So far as drink or drugs and requirements to provide specimen are concerned, Ritchie v Bainbridge and Peebles v Brown, both 2000 GWD 16, 672 and 673 respectively are worth a look. The first, a Crown appeal against an acquittal, explains some of the circumstances in which police officers are entitled to require a specimen of blood or urine. The person involved had told police officers that he was asthmatic and they were concerned about the possible effect of the machine on his health. The sheriff held that they should have been allowed to try to use the machine and only if that failed should a specimen have been required. The Appeal Court however held that the proper test was whether a layman in medical matters would consider that there were good medical reasons for adopting the course that they did. The Crown appeal accordingly succeeded: as the original trial had been before a temporary sheriff authority for a new prosecution was granted. In the latter case, the appellant had given a roadside test, which proved positive but thereafter failed to give a Camic specimen. He blamed a medical condition, but the Appeal Court held that the sheriff was entitled to prefer the evidence of the police officers who said that this had not been mentioned to them at the material time and also that they had never known of a case in which someone who provided a roadside sample was subsequently unable to provide a Camic sample.

McGuckin v O’Donnell 2000 GWD 26-1010 is an example of the fact that no matter how long a statute is in existence, new questions of interpretation are liable to arise. Here the appellant faced with a malfunctioning Camic machine, agreed to provide a specimen of urine. The first was duly given but he declared himself unable to provide a second. He did not do so or attempt to do so. On appeal it was argued under reference to McGregor v Jessop 1988 SLT 719 that where the prosecution evidence disclosed a question of reasonable excuse, it was for the Crown to lead evidence to prove its absence. The court however distinguished that case, on the basis that where there was no medical reason or physical incapacity to prevent the accused at least trying, the trial judge was entitled to conclude that there was a refusal.

Finally on the road traffic, there is Finegan v Heywood GWD 15-633, which raises the tricky topic of automatism. This was an appeal against conviction on a number of charges arising out of the driving of a vehicle. The appellant had, apparently, a history of sleepwalking, especially after drinking alcohol. It was held on appeal that the judge of first instance had been correct in rejecting a defence of non-insane automatism where the condition was the result of deliberate and self-induced intoxication. The moral would seem to be that anyone anxious to use this particular defence will have to establish that they have avoided any course of action known to them to be likely in the light of experience to bring the state on.

Sentencing

Turning to sentencing, Ross v Gallacher 2000 GWD 15 593 is unusual in that it is an appeal against the sheriff’s decision to impose the alternative of imprisonment at the time of imposing a fine, to take immediate effect in the event of non payment of the latter. The appeal was successful, the Court holding that the reasons given for this course of action were rather different from those discussed in Paterson v McGlennan 1991 SLT 832, not we suspect a terribly well known case. As the sentencing judge did not appear to have applied his mind to the question of the likelihood of non-payment and as the Appeal Court did not find anything to suggest that non compliance was likely, the alternative was quashed. Two cases in 2000 GDW 22 deal with the rather graver matter of computing the designated part of a life sentence. In Ferguson v HM Advocate (852) the Court took into account the appellant’s acceptance of responsibility in reducing the period prior to application for release on licence from 14 years to 12; in Mulvanny v HM Advocate (853), the appellant, aged only 17 but described as an extremely unstable and dangerous criminal, did not succeed in having the 14 year period reduced.

Trespassing on jury’s territory

Finally, one wonders if the decision in the case of Clark v HM Advocate is something that could have been reached before the advent of recording machines to take the place of shorthand writers. Stories were always told, of course, of judges whose charges looked fine on paper but involved an accompaniment of nodding, headshaking, raised eyebrows and lowered voices. I recollect a tale of a solicitor in Glasgow emboldened to ask “I wonder if your lordship’s sneer might be minuted?” Anyway we know now that the intonation of the judge is something that may be taken as trespassing on a jury’s territory in the way condemned in the case of Simpson v HM Advocate 1952 SLT 85. It is not thought however that the directorate of judicial studies is offering elocution lessons. Yet.