Safeguarding fair trial

Custody for causing death

There are two recent cases about causing death by dangerous driving which may be read as complimentary. In the first, HMA v Galloway 2006 GWD 16-323, the sentencing judge set out the proposition that in all such cases a sentence of imprisonment was appropriate; the salient facts were that the bad driving involved speeding and that the person who died was a passenger in the car. The sentence that would have been imposed but for an early plea was said to have been one of four years’ imprisonment, which was reduced because of the timing of the pleas to three years. As the case does not seem to involve some of the more culpable elements, such as taking drink or drugs or leaving the scene of the accident, it can probably be taken as an indication of what the minimum sentence should be. In the second case, HMA v Singh 2006 GWD 17-359, because the accused’s current medical condition – as a result of the incident – made an immediate sentence of imprisonment inappropriate the case was continued for six months for the court later to fix an appropriate period. It was acknowledged that this was an unusual way of proceeding but the court made it abundantly clear that a custodial sentence for this crime was unavoidable and would be imposed.

Sentencing powers and options

Crane, Petr 2006 GWD 19-400 is an appeal against the imposition of a community service order in respect of a failure to perform a supervised attendance order, which was in turn imposed following a failure to pay a fine. The appeal was by way of petition to the nobile officium. It was held that this was the wrong way to proceed, but the court agreed to treat the appeal as if it had been a bill of suspension, which let it get at the meat of the matter. The sentencing sheriff had, as it happened, already taken advantage of an opportunity to comment on the appeal, so that the situation was to all intents and purposes the same as if the correct procedure had been followed. It was held that in these circumstances there was no power to impose a community service order, the powers of the court being set out in para 4(2) of schedule 7 to the Criminal Procedure (Scotland) Act 1995, which allowed the court either to revoke the order and impose imprisonment or to vary the number of the hours. The sheriff’s reliance on the terms of s 238(1) of the Act was held to involve a misconstruction of that section.

As observers, we can only guess whether this state of affairs came about as a result of mis-legislation or whether it was because the legislature thought for some reason community service was inappropriate where someone had failed on the easier option. On the whole, one might have thought that this was another argument in support of the school of thought which says that any penalty should be available for anything. That would involve a degree of trust in sentencers which accused people probably have but which, paradoxically, legislatures (and Sentencing Commissions?) do not. For practical purposes it seems that those representing clients in such circumstances should be prepared to argue a good plea in mitigation for more hours. The fact that the appeal court was prepared to allow the appeal to proceed should not inhibit those acting for appellants to make sure that there is really no other remedy available before resorting to the nobile officium.

Specification and the ECHR

Another “technical” appeal, although not a successful one, was taken in Aitken v Spencer 2006 GWD 19-401. This involved a charge of speeding and the appellant lodged a devolution minute alleging that there had not been adequacy of specification and thus there had occurred a breach of the appellant’s article 6(3) right. It was argued that the appellant had been deprived of information about the nature and cause of the accusation against him. If there had been anything in this it might have led to a far-reaching reconsideration of what has to go in a summary complaint. The appeal court, however, does not seem to have had too much trouble in pointing out that the complaint did actually specify what the appellant was said to have done, and when, and where, as well as how this was in breach of the statutory provisions narrated in the charge.

Pointing out the accused

Another appeal which, to put it charitably, might not have been expected to succeed, is Herrity v HMA 2006 GWD 20-431. It appears that at the start of a jury trial, with a witness in the witness box, the sheriff, after identifying the procurator fiscal as representing the Crown, had identified the appellant’s solicitor as representing him, while allegedly gesturing toward the appellant in the dock. It was argued that as identification was the only issue in the case, the sheriff’s actions gave rise to the possibility of a miscarriage of justice. The court pointed out, however, that there was a distinction between the fact that the appellant was the person in the dock and that he was the person who committed the crime. As this is pretty much the basis on which all of our trials proceed, the distinction, perhaps, should not have come as too much of a surprise to anyone. It was observed, however, that the practice of swearing the first witness (and thus commencing the trial) before describing the “cast of characters” was diminishing, and that such introductions might be better made before a witness entered the witness box.

Crown must be prepared

Of perhaps rather more substance, and of importance because reliance on full disclosure seems to be the way ahead in criminal matters, is the appeal in McClymont v HMA 2006 GWD 21-450. This was an appeal in which the Crown did not support the conviction appealed. The appellant had been convicted of the assault and robbery of a taxi driver who had driven the appellant’s girlfriend, a prostitute, to her home. On leaving there he had been assaulted and robbed. In the taxi driver’s original statement he had said that he had not known the girlfriend before, but in a later statement given the same evening he had altered this considerably. The changed statement was not shown to the appellant until after the taxi driver had given his evidence, the depute fiscal in question explaining that she had been given the papers for the trial shortly before it commenced and so had not initially aware of the statement. The sheriff was moved to desert pro loco et tempore but declined to do so.

It was argued that the sheriff had erred in law in refusing the motion to desert as the appellant had been denied the chance of cross-examining the taxi driver to show that he had lied to the police. It was also argued that the Crown should have exercised its powers under s 263 of the 1995 Act to allow the taxi driver to be recalled, and finally that the Crown, in inviting the jury to convict having failed to disclose the statement at the proper time, had acted in a way that was incompatible with article 6(1) of the European Convention. The appeal was allowed on the basis that the Crown’s failure to disclose the existence of the statement had the result that the appellant was not able properly to prepare and conduct his defence and thus did not have a fair trial. It was observed that every effort should be made to ensure that prosecutors have adequate time to prepare cases prior to trial and that in this case the prosecutor had not had the opportunity to acquaint herself thoroughly with the contents of the papers. One thing that the report signals is, of course, the absolute necessity of the prosecutor considering not only the strength of the Crown case but also any possible weaknesses, which should be drawn to the accused’s attention.

Evidence wrongly allowed

One difficulty which sometimes crops up in jury trials seems to have been faced head on by the appeal court in M v HMA 2006 GWD 21-452. The problem, which occurs most often I think in “Moorov” cases is, what is to happen when some evidence is wrongly admitted but there is other evidence which would justify a conviction without the tainted bits being used. The case involved a number of charges of lewd, indecent and libidinous practices towards three females and one of rape. The trial judge had directed the jury to the effect that the evidence of one complainer could be corroborated by that of her mother, to whose room the complainer had gone in a state of distress saying that the accused had hurt her. It was accepted by the Crown that this was a misdirection, in that it regarded this statement as part of the res gestae when in fact it did not amount to more than a de recenti statement. The Crown, however, did argue that no miscarriage of justice had taken place, since the complainer’s sister had been an eyewitness and her evidence corroborated the complainer’s.

In allowing the appeal and granting the Crown authority to bring a new prosecution, the appeal court confirmed the position as regards the statement, namely that it was a de recenti one, but added that there had been a miscarriage of justice since it could not be affirmed that the jury had not used the de recenti statement as corroboration, as the trial judge told them that they could. Accordingly, until such time as the jury has to give reasons for its decision (The Twelfth of Never, maybe?) it looks as though any material piece of evidence being wrongly allowed to go to a jury will result in it being held that a miscarriage of justice cannot be ruled out.