Visions of a reasonable observer

In his ongoing series rounding-up cases from the criminal courts, Sheriff Andrew Lothian examines issues including appeals on grounds of an improper defence and delay

For a long time it was thought that as far as appeals against conviction went, the ground that the defence case had not been put forward properly was a non-starter. That this is no longer the case can be seen from a couple of reports in 2002 GWD 13, namely E v HMA (407) and Gillespie v HMA (413).  In E it was successfully argued that a substantive line of defence, which might have led to the jury being in reasonable doubt, had not been sufficiently put forward. The case involved the alleged rape by the appellant of his two infant daughters. The appeal court was of the view that in as much as the case involved evidence from the children, the question as to whether or not they had been manipulated by their mother should have been more forcefully put. It was also considered that the defence should have presented evidence to show that the interview techniques used were flawed.  It cannot be said that the case makes comfortable reading and this is highlighted in the differing approaches of Lords Gill and McCluskey on the one hand from that of Lord Hamilton, who dissented on the question as to whether the verdict was one which no reasonable jury could have reached. In Gillespie the claim of inadequate representation, which was certainly far weaker, did not find favour with the appeal court.   In both cases, however, it is clear that the appeal court is willing to consider the conduct of the defence as one of the necessary elements in the securing of a fair trial, which is nothing  if not far reaching in its implications. I wonder what the duty of a presiding judge who considers that an accused person has been inadequately represented might be; anecdotally one hears that it happens all the time! One recalls to those old stagers who would never put an accused in the box on the grounds that all you were doing was chucking the crown an extra prosecution witness. Where would they stand today?

European jurisprudence

Among the chattering classes of the criminal world, a proposition that often has come in for comment is the assertion (unvouched) in Macdonald that all shamelessly indecent conduct is criminal.  If this means any more than that all criminal conduct is criminal, what exactly does it mean?  The saga continues with the big guns of European jurisprudence being brought to bear on, among other cases, Watt v Annan 1978 SLT 198.  The case, Webster v Dominick 2002 GWD 306 has been sent to a court of five judges, so watch this space. Perhaps one day a satisfactory answer will be given to the question heard by the present writer posed in the appeal court by the ever-subtle Lord Walker – “What if an actress came on stage with her breasts bare and everyone wanted to see them?”

Delay cases

Of the recent delay cases, two in 2002GWD are worth a look. In Dickson v Cunningham (362) the court expressed the view that while the delays under consideration were substantially longer than the court wished to see (in dealing with pre-trial issues)  they were not long enough to justify a plea in bar. The case is of interest in that the appeal court indicated that it might be necessary at some stage to consider whether it was appropriate in assessing delay to take into account any failure on the part of an appellant to expedite matters. Napier v McLean (363) is a successful crown appeal against the dismissal by a sheriff of a complaint involving charges of indecency. Once again the delay is categorised as being longer than one might wish but not so long as to demand an explanation. The court observed that it was important that the crown should have adequate information to put before the judge of the first instance and it was unfortunate that that had not been the case here. It would appear from this that the crown may be entitled to two bites at this particular cherry and that if a sheriff reaches a certain decision on the basis of information before him or her, the appeal court may reach a different conclusion on the basis of further and better particulars. No doubt the appeal procedure occasioned by all this adds to the general delay.

Fairness

2002 GWD 10 includes a number of “fairness” cases.  Mudie v Wheelan (309) involves a successful bill of suspension. The justice in question had been seen by the accused to be having a conversation with two police officers, the only crown witnesses in the case.   While the appeal court stated that there was no reason to doubt the impartiality of the justice in question, it was held that the circumstances were such that there would be created in the mind of the reasonable observer a doubt as to impartiality. Well, obviously justice must be seen to be done and I do not want to turn this reasonable observer, to whom I have referred on other occasions, into a hobby-horse, if I may be permitted so inelegant a metaphor. But I wonder if the observer would know that the justice had taken a judicial oath and in the circumstances might well be discussing something else. The reasonable observer appears again in McDonald v Craigen (310) (I am beginning to visualise this individual; if female, a sort of mother of two with a part-time job in marketing, if male something along the lines of a senior librarian in a medium-sized Scottish burgh – I am driven to this because I am not sure of the qualities which this individual otherwise possesses although I understand that one judge in the past spoke of the sort of person who cuts the grass in his shirt sleeves at the weekend). In that case the presiding sheriff had made certain observations about the appellant’s evidence at the conclusion of his evidence in chief in such a manner as to suggest to a reasonable observer that he had reached a concluded view about the appellant’s guilt before all of the evidence for the defence, including his answers in cross examination, had been heard. Shevlin v HMA (311) is illustrative of the sort of problems that can crop up when there is more than one accused. In a murder trial, each accused blamed the other and in his speech to the jury, counsel for one made much, inter alia, of the fact that the co-accused had remained silent at judicial examination. It was argued that as there were restrictions on what a judge or prosecutor might say about an accused’s silence, the same should apply to counsel for a co-accused.  To state the argument is really to refute it: the court held that there is no such rule nor should there be. The position of the defence is quite different from that of the crown or the judge and in particular a defence lawyer has to be able to comment in full on the content and quality of any evidence led in support of the co-accused’s case. No doubt this is of particular importance when one accused blames another. Reference was made to the English case of R v Wickham (1971) 55 Cr App R 199 and the approach taken by the court in that case was described as consistent with Scots law and thus of application. It was emphasised, however, that it was important that if comment was made on silence, it should be acknowledged, if appropriate, that the person in question was entitled so to remain. Criticism was however made of counsel’s remarks on grounds of lack of care and precision but in the circumstances (the transcript referring to some words as inaudible) it was not possible to say that there had been impropriety. It was also observed that even if they had the matter had been addressed in the judge’s charge in respect of the right to remain silent in such a way as to avoid irremediable damage to the appellant’s defence. Hicks v HMA (312) also involves comment about silence at the judicial examination stage, on this occasion by the judge.   The appeal was in respect of a conviction for murder. It was argued that the judge had misdirected the jury by inviting them to disbelieve the appellant’s evidence that he had been advised by his solicitor not to say at judicial examination that he had acted in self defence or that the stabbing in question had been accidental. (A special defence of self-defence had been lodged subsequently.)  The situation is a difficult one, since if judicial examinations are to be of benefit to everyone (including the accused) they should be an occasion for candour but on the other hand the proper scope for comment is interfered with if  the defence agent  attempts to take the blame, or responsibility, for silence. This was recognised by the appeal court who refused the appeal,  essentially on the basis of the general fairness of the charge. Defence agents might do well to ponder the observation of the trial judge, not disapproved by the appeal court, that it would be“ more difficult to conclude that a special defence had been fabricated at a later date” if it had been stated at the judicial examination. Perhaps Parliament should give thought to forbidding special defences unless stated at least in outline at the earliest appropriate stage. Gardiner v HMA (313) is an unusual case in that the appeal court stated that in a trial by jury that although the sheriff had been wholly wrong in repelling an objection to hearsay evidence, nevertheless his failure to give the jury general or particular directions about hearsay was not one which no reasonable sheriff would have reached. It seems to have been of importance in the case that the evidence in question had been given a couple of days before and had not been referred to in the speeches to the jury.

Drugs Court
And, finally, since there is no therapeutic rose which does not have its thorns, one wonders just what novel points the new procedures involved in the Drugs Court, and Drugs Treatment and Testing Orders generally will produce. As a start, Tweedie v Higson 2002 GWD 10-314  is a successful appeal for various reasons from a decision of a magistrate revoking a DTTO and substituting imprisonment and involves recognition by the High Court that the purpose of such orders is to secure at least the reduction, if not elimination,  of drug dependency and use.