Time for fundamental review of children’s evidence

I take this from “The Herald”of 17 October: “The judge said that he had checked this (an item of evidence) on Mr Allason’s own website directly after the trial ended last Friday…” 

If true, this is an interesting development in the law of evidence and reminds one of the east coast baillie who was supposed to have prefaced his finding of guilt on an assault charge with the words “As it happens I was passing on a bus and saw the whole thing myself.” But the judge in question was sitting in England; it is perhaps now more profitable that we should turn our attention to what has been happening in Scotland.

ECHR Cases

ECHR has been invoked in some pretty odd circumstances so far. Two recent cases demonstrate that its provisions have, not surprisingly, not been of much assistance in attacking the concept of breach of the peace and of the duty of a judge to deal summarily with contempt in his or her court. Common sense might dictate that the existence of a general public order offence and of the power of a judge to enforce proper compliance with decent behaviour in court were essential in any developed society: happily that appeal court has affirmed that that is indeed the case. Smith v Donnelly 2001GWD 26-1011, which involved a protester lying on the road, held that it was neither possible nor desirable to provide a comprehensive definition of the crime, that what was required was conduct that was genuinely alarming or disturbing, taken in context, to a reasonable person and that while there would inevitably be borderline cases this was not unusual with all common law offences. It was observed by the court that the fact that police officers do not at any stage charge someone with an offence does not mean that the offence has not been committed. The case of Little (Cheryl) 2001 GWD 30-1179 confirms that in making a finding of contempt on the ground of prevarication by a witness, the sheriff is not acting as prosecutor and judge (by implication in a separate case) but merely carrying out a normal judicial role in assessing the evidence before the court.

One of the most frequent invocations of the Convention has been in connection with the question of delay. Another such case is that of HMA v Dodwell 2001 GWD 32- 1274, which was a successful Crown appeal against a sheriff’s decision dismissing an indictment on the grounds of a breach of the accused’s right to a hearing within a reasonable time. Nineteen months had passed between the police interview and the indictment, but the court held that this was not, prima facie, unreasonable given the type of case (drug offences). Another case worth a look is Mills v HMA (no2) to be found at 2001 GWD 31-1228, which lays considerable stress on the fact that the completion of proceedings for ECHR purposes includes the appeal part, even although at this later stage the Lord Advocate is no longer master of the instance.

A more radical look at the whole matter, however, is to be found in the judgment of Lord Reed in the case of HMA v R 2001 GWD 32-1275, which discusses the question of what the proper remedy may be where a trial is not brought within a reasonable time. Starting with the proposition that in every case it is necessary to examine the exact nature of the violation in order to ascertain its legal consequences and thus to find an appropriate remedy, his Lordship goes on to hold that domestic courts can provide a remedy for delay in a number of ways, including discontinuing proceedings, reducing a sentence, (something mentioned in Mills, supra,) acknowledging the delay and awarding monetary compensation. Adopting this approach, it becomes clear that a plea in bar of trail will only be sustained in exceptional circumstances. If this approach is to be followed, it would appear that the widespread belief that the only remedy for delay is bar of trial will no longer have any force. It should be noted that his Lordship specifically observed that there is no reason why the civil courts should not grant a remedy under s 8 in cases where appropriate redress cannot be obtained from the criminal court. Something of a spoke among the pigeons, as the mother of one of my friends used to say, and so far as reading is concerned, an essential judgment.

Corroboration

I do not suppose I am the only person to put on a philosophical frown whenever the word corroboration is mentioned although I daresay the whole thing is my own fault for having dark thoughts about its effect on credibility as opposed to sufficiency. The topic turns up again in Mackie v HMA 2001GWD 26-1009 and Anderson v HMA 2001 GWD 27-1090. The first case is about corroboration in a rape case, where it was argued, unsuccessfully, that the medical report founded on for corroboration of the complainer’s evidence that the act, agreed to have occurred by the appellant but said by him to have been consensual, was in fact against her will. I am bound to say that the idea of corroborative evidence fitting in with the account given by the complainer, rather than inclining to favour it over any competing explanation, is one with which I continue to have some difficulty. In the second case the court was once more dealing with the question of corroboration by means of distress, in circumstances where there were two charges, abduction and lewd conduct, and only one episode, if one can so put it, of distress.

So how is the jury to know where the corroboration lies? In this case they were directed that they could not look to distress in respect of the corroboration of the second charge, which seems to have met the appellant’s point that in addition to directing the jury that they had to be satisfied that the distress was attributable to the abduction and detention, it should have been emphasised that they should be satisfied it was not attributable to the alleged indecent conduct. Ford v HMA 2001 GWD 34-1325 deals with corroboration in a case of attempted rape. First the court held as unsound the appellant’s argument that it was necessary for the crown to prove an actual attempt at penetration, the requirement being rather an intention to have intercourse forcibly and against the complainer’s will together with conduct that took matters beyond preparation to perpetration. Then it was held that both evidence of distress and of the condition of the complainer’s clothing might be capable of corroborating her own account of what happened. It was held that not every detail of the complainer’s account had to be corroborated, the court following the decision in Fox v HMA 1998 SLT 335 in this respect.

Expert witnesses

Another interesting case about evidence is HMA v Grimmond 2001 GWD 27-1083 which deals with an attempt by the Crown to lead the evidence of an expert witness, who had had no contact with the complainers (boys aged eight and seven at the material time) particularly on the topic of two-stage revelations. (The children had originally reported acts of indecency and it was at a later stage that the allegation of sodomy was made.) It was argued on behalf of the Crown that it was reasonable to lead evidence as to how common two-stage revelations were in the specialised area of child sexual abuse, the end result being it was intended, to strengthen the credibility of the child witnesses. The Court refused the motion on the basis that the assessment of evidence was a matter for the jury who would bring to the task their experience of life and human nature. This seems to be the law as it stands; whether it should be is another question. To leave matters as complicated as this unexplored by expert evidence, which may illuminate areas where some lay people would not even realise that there is a problem, seems verging on the perverse: common-sense after all is only an inability to understand how complicated the problem really is.

It may be that there is once more a ground swell of dissatisfaction about how we approach the evidence of children, both as victims and as general witnesses. It may be too that the matter is of greater urgency than some of the issues of pest control that have occupied legislative time recently. If there is to be a reconsideration of matters, it is to be hoped than it will involve something a bit more fundamental than the removal of wigs and the erecting of screens. In particular there may be much to be said for one video interview only by a trained questioner prepared to elicit not only the child’s story but also the particular matters requested by prosecution and defence.

Sentencing

Now a couple of matters relating to sentencing to be found at 2001 GHWD 1158 and 1159. In the latter, HMA v Mason, a post-Galbraith case, a plea of guilty to culpable homicide on the grounds of diminished responsibility was accepted where the accused was found to have an abnormality of mind which impaired his ability to control his actions and in particular his inability to see the connection between his grabbing his wife by the throat and the risk of his killing her. On a less serious level, in Angiolini v Duguid an accused who had pleaded guilty to throwing a snowball which hit a police officer was invited to make a payment to a charity of his choice and having done so was accorded an absolute discharge. Years ago I remember being less than impressed when the then sheriff at Dingwall made it a condition of a probation order that my client should pay a large sum to a police dependants’ fund. An opinion about the certainty of a successful visit to the appeal court was immediately rejected by a client only too glad that the stranger to local ways representing him had not mitigated him into a custodial sentence.

Contempt

A couple of contempt cases are reported in 2001 GWD 34. 1327 HMA v Beggs (no2) was an application on behalf of the latter that the “publishers” of certain matter to be found on websites be ordained to appear before the court. In refusing the application the court held that there had been publication in terms of s 2 of the Contempt of Court Act 1981, that “the time of publication” meant all of the time that the material was available and that there was no risk in the circumstances that the course of justice would be prejudiced thereby. 1327- Beggs (no1) involves an unsuccessful motion that an order should be made under s 4 of the act prohibiting any reporting of the trial until its conclusion, the defence, who made the motion having to make the fatal concession that they could not be prejudiced by fair and accurate reporting.