Fairness – apparent and otherwise

Sheriff Andrew Lothian examines issues including special knowledge confessions, search without a warrant and health and safety at work in his ongoing series updating key cases from the criminal courts

“Whereof we may not speak, thereof we must remain silent” said Ludwig Wittgenstein and in that spirit I propose to pass over the case of Reynolds v Dyer 2002 GWD 7-226, pausing only to remark that it is a melancholy fact that so many could be so wrong for so long.

Wittgenstein maintained too that all problems in the end are aesthetic ones (I think) and as a matter of aesthetics one is inclined to keep an eye on the difference between style and content. I mention this because of the high value that the appeal court now attaches to the appearance of what is happening in court. In Murray v Watt 2002 GWD 2-64, for example, the test of whether or not a bill of suspension taken, broadly, on the ground of the conduct of the presiding sheriff, should be passed was that there would be in the mind of a reasonable observer at least the suspicion that the sheriff had made up his mind before all the evidence was led. It is good that this should be made clear. I wonder how long it will be before matters like dock identification, often mentioned as affronting the conscience of reasonable observers, come under challenge. Fairness again crops up in the case of Beacon v HMA 2002 GWD 2-65, an unusual case but worthy of study. What happened was that in a jury trial the Crown played over a taped interview with one accused in which, inter alia he implicated a co-accused. No one objection could be taken to this, but when the Crown case concluded, that accused was dropped out, something that had been decided was to happen before the tape was played. The trial judge directed the jury to disregard anything incriminatory of the appellant from the tape (one remembers here the late Lionel Daiches talking about people being told to hold a skunk but to disregard the smell) but the appeal court took the view that too much damage had been done.

Trial within a trial

Trials within trials were again considered in the case of Crooks v Russell 2002 GWD 4-129. The appeal court took the view that in a summary trial there was no reason in principle for the evidence given, once held as admissible, simply being treated as evidence in the case.  It was suggested, however, that when this happened it might be prudent for the trial judge to give parties the opportunity if they wished of putting further questions to prosecution witnesses. The question of the accused’s evidence is more problematical; normally that would be restricted to questions of admissibility and could not be founded on in relation to the substantive issue, although what happens in the case of a discrepancy emerging is not entirely clear (to me at least.)   Roll on the Trial within Trial Abolition Act (Scotland) say I.  

Special knowledge confession

Another old friend is the special knowledge confession, revisited in McLaughlin v Clark 2002 GWD 7- 218, which in passing reaffirms what was said in the leading case of Wilson v HMA 1987 SCCR 217.   The court emphasised that the question of sufficiency, being a matter of law, was one for the Appeal Court.   In sustaining the conviction, the court held that although there were discrepancies between what was contained in the admission and the facts of the crime as agreed by the parties, there was sufficient when the statement was looked at as a whole to justify a conclusion that the maker of the statement must have been the perpetrator of the crime. A submission that details of the offence having been reported in the press before the appellant was interviewed by police officers, so that it could not be said that the only reasonable explanation for the statement was that the accused was the perpetrator was rejected.

Delay

We have discussed delay cases here more than once: perhaps some breathing space will be available in the light of the fact that the Privy Council has now considered matters in the case of Dyer v Watson 2002 GWD 5-153. It was there confirmed that the convention right to a trial within a reasonable time was a free-standing one, quite independent of the common law right not to be prejudiced by delay. The purpose of the Convention right was to protect accused persons from long procedural delays and to avoid delays, which would prejudice the proper administration of justice. Normally only cases which ex facie gave rise to concern would be looked at further. Thereafter the important considerations were the complexity of the case, the conduct of the accused and the actions of the prosecuting authorities. However, the question does remain open, for the moment, as to whether or not a breach of the reasonable time requirement should necessarily, or even ordinarily, result in the dismissal of proceedings. The court in its judgment was at pains to observe that even in cases of delay there were others with interests which had to be taken into account as well.   

Health and safety at work

Although they fall clearly within the ambit of the criminal law, health and safety at work prosecutions can present problems as regards sentencing, particularly when one is dealing with a large organisation whose failure has had serious consequences.   In this connection it is worth looking at a couple of cases reported in 2002. GWD 5-.160 is HMA v BP Oil Grangemouth Refining Ltd where fines of £250,000 and £750,000 were imposed. The conduct complained of involved the discharge of highly inflammable liquid or vapour, which ignited and resulted in a fire.161 Napier v Caledonian Community Leisure Ltd is a case involving the death by drowning of a boy aged four years in a water feature at a leisure centre. The breach involved inadequate supervision both as to who was able to gain access to the said feature and the observation thereafter of users who might get into trouble. The fine imposed was of £10,000.

Post-conviction social enquiry report

Hunnam v Reith 2002 GWD 5-162 is a somewhat unusual case in that it was a bill of suspension taken in respect that a post-conviction social enquiry report was said to contain material prejudicial to the appellant.   In that particular case the appeal court did not so find, but the interest of the case lies in the fact that this door seems to have been well and truly closed now. The appeal court agreed that there was force in the Crown’s observation that social enquiry reports often contained material which did not come out in the course of a trial and it could be assumed that judges would ignore any material not properly before them.

Substantive offences

So far as substantive offences go, Borwick v Urquhart 2002 GWD 8- 251 is somewhat unusual in that it involves conduct which, though stigmatised as reprehensible, does not, applying the considerations set out in Smith v Donnelly 2001 SLT 1007, amount to breach of the peace. The appellant had filmed on video a girl of 13 while she was drunk, the girl being upset and angry when she found out what had happened. However, a conviction for wilfully supplying alcohol to the girl knowing that its consumption could be dangerous to her life and health and causing and procuring the consumption of alcohol by her was sustained, the court following the case of Khaliq v HMA 1984 SLT 137, itself regarded as something of an innovation in its time.

Search without warrant

The question of the propriety of a search without warrant comes up every so often; one recent example is Forrester v HMA 2002 GWD 8-253. It was again confirmed that each case depends on its own facts: what had happened here was that two police officers who had previously seen the appellant acting suspiciously at a car noticed that the boot was ajar and looked in it and found a quantity of cannabis resin. The court held that in all the circumstances an immediate investigation was reasonably required. The validity of a warrant granted by a temporary sheriff was considered in McFarlane v Gilchrist 2002 GWD 7-230, it being argued in effect that if a temporary sheriff could not conduct a trial. The warrant, however, predated the implementation of the European Convention and the argument that in common law the temporary sheriff was not an impartial, independent figure fell, in the absence of any suggestion of partiality, on very stony ground. HMA v Foulis 2002 GWD 11-336 was an appeal against a sheriff’s decision sustaining an accused’s objection to the validity of a search warrant on the basis that it was invalid through being inadequately dated, all that appeared being “November 2002”. The appeal court held, perhaps not surprisingly, that since there is no statutory time limit on the prosecutor’s right to seek or the sheriff’s power to grant a common law warrant, the warrant was not ex facie invalid and the date was sufficient for the purpose, even though a full date would have been preferable.

ECHR
Another interesting procedural case is that of  Connor v HMA 2002 11- 330, which is an ECHR case. The appeal was against a sheriff’s dismissal at trial of a devolution minute objecting to the admissibility of the evidence of a police officer on the grounds that it had been obtained in a manner which violated the appellant’s rights under art 8(1). The principal basis for this suggestion was that the entrance to the appellant’s building had been under surveillance for 71/2 hours during which time people entering and leaving were observed.  The charge, you will not be surprised to know, involved the supply of diamorphine. This conduct, it was argued, meant that the Lord Advocate did not have the right to prosecute when relying on evidence obtained by breaching the appellant’s rights. It was also argued that this conduct by the police was akin to telephone tapping and interfered with the appellant’s right to have his private life respected.   The appeal was refused on the basis that there had been no violation of the appellant’s convention rights, which cannot have come as much of a surprise to the disinterested observer. However, the court did point out that the matter did not end there, for had the sheriff been wrong, the appellant would still have had to persuade the appeal court that the crown was absolutely barred from seeking to lead evidence obtained in breach of article 8 rights by virtue of s 57(20 of the Scotland Act 1998. As this point had not been fully developed in argument before them the court offered no concluded view on this point.