When to take the stand

Anderson appeals

An appeal against conviction on the grounds of inadequate representation seems, generally, to involve an assertion that things were left undone which ought to have been done, rather than that things were done which ought not to have been done. To the cynical, it might even look as though what was being said is “Well, that defence didn’t work: what about a shot at a different one?” This makes such an appeal look rather like a definite last resort, which brings us to the case of Lindsay v HMA [2008] HCJAC 19; 2008 GWD 13-237.

The charge was one of murder and the alleged failure in representation involved the appellant not being advised that he should give evidence. The court, in dismissing the appeal, observed that it could not be regarded as a general rule that when the case against an accused person seemed strong, that person should give evidence. Further, given that his counsel had strongly attacked certain witnesses in cross examination, it was reasonable for counsel to take the view that any advantage gained thereby might be lost by a poor performance in the witness box by the appellant.

As regards a subsidiary point, to the effect that by attacking the honesty and credibility of certain prosecution witnesses, the appellant’s counsel had effectively exposed his client to an attack on his own character if he gave evidence, it was noted that such an attack had been specifically instructed by the appellant and it was up to counsel to decide how to do this.

Moorov on the facts

Moorov reappears in Hughes v HMA [2008] HCJAC 20; 2008 GWD 13-236, in which it was argued on appeal, without success, that the doctrine should not apply. The case is perhaps most valuable for the court’s explanation that the fact that the nomen juris of the crimes is different does not mean that the doctrine cannot be invoked. Here one of the crimes was charged as assault, rather than lewd etc practices, but it was plain from the alleged facts that the crime fell to be considered as an indecent assault.

Separation of charges

Martin v HMA [2007] HCJAC 60; 2008 GWD 13-238 is an appeal from the decision of a judge of first instance refusing a motion for separation of charges. Historically, courts have been slow to grant such motions, as the question of the manner of a charge is very much one for the Lord Advocate acting in the public interest. In this case, the appellant faced 10 charges, including one of assaulting G at his home and another of assaulting a fellow inmate, C, while in custody. It was pointed out that the first five charges related to conduct while the appellant was at liberty, whereas the rest related to when he was in custody, and that the circumstances, and the defences, were quite distinct. It was argued that the judge in refusing the motion had placed too much evidence on an alleged evidential link, namely an alleged statement in the presence of police officers that “that’s two murders in 14 weeks”, and also that any such link paled into insignificance compared with the possible prejudice to the appellant of the charges being heard on one indictment.

The appeal court held that the judge was correct in proceeding on the basis that there would be a question about the credibility and reliability of police evidence which she was not in a position to resolve, and that if separation of charges, in particular charges 3 and 7, was ordered, the Crown would face serious difficulties in attempting to lead such evidence. The judge had recognised that there might be potential prejudice but considered that it could be dealt with by directions from the trial judge. In the court’s view the decision to refuse was not one that no reasonable judge could have reached.

Discounting an inadequate maximum

The question of discounts in respect of pleas to charges of driving while disqualified was considered in Horribine v Thomson [2008] HCJAC 21; 2008 GWD 13-249. This was an appeal against a sentence of six months’ imprisonment, the maximum available as proceedings had been on complaint. The primary submission for the appellant that the sheriff had erred in declining to allow a discount because he considered that proceedings should have been brought on indictment. It was held that it was illegitimate for a sentencer, when a discount was available, to refuse one on the basis that the maximum was considered inadequate. The court went on to say that the appellant’s serious record of analogous offences was a ground for modifying the amount of discount that might otherwise have been appropriate, applying Coyle v HMA 2007 SCCR 479. The court also observed that guidance as to the position regarding a discount when a plea of guilty was “practically inevitable” was to be found in Du Plooy v HMA 2003 SLT 1237.

Jury directions: on the evidence

The case of Mackay v HMA [2008] HCJAC 16; 2008 GWD 10-182 is of some value in respect of the guidance given about the scope of a charge to a jury. It was argued, inter alia, that the trial judge should have discussed the question of culpable homicide in a case in which the charge was one of murder. The court pointed out, however, that any obligation on a trial judge to charge a jury was fenced by the way in which the case was presented to the jury by both or all parties and it was not for a trial judge to embark on discussions about possible verdicts that had not been canvassed in evidence or formed part of submissions to the jury.

PII and the Lord Advocate

How constitutional law changes, in a country without a codified constitution, may be a bit of a mystery at times. It seems clear that the role of the Lord Advocate has changed a lot recently, and we also have to cope now with a relatively new figure, the Advocate General. These musings are prompted by the latest development in Al Megrahi v HMA [2008] HCJAC 15; 2008 GWD 10-184. The Scottish Criminal Cases Review Commission having referred the case on the basis that there might have been a miscarriage of justice where the Crown had decided not to disclose one of two protectively marked documents in its possession, the appellant, not surprisingly, petitioned for the recovery of both documents.

Both the Advocate General and the Lord Advocate lodged answers. The Advocate General averred public interest immunity on the basis that the documents had been provided on a confidential basis by a foreign authority and disclosure could cause real harm both to relations with foreign states and to national security. The Lord Advocate’s position was that there had not been disclosure because the document would not have helped in the appellant’s defence. It was accepted however for the purposes of the appeal that there should be disclosure subject to the Advocate General’s plea of public interest immunity. On behalf of the appellant, it was argued inter alia that the Lord Advocate having decided against claiming public interest immunity, the Advocate General’s intervention was an illegitimate attempt, on behalf of the UK Government, to interfere with the Lord Advocate’s role in Scotland.

The appeal court however took the view that whatever concession was made by the Lord Advocate had to be read subject to the Advocate General’s plea. Further, it held that the Lord Advocate had discharged her duty properly in laying the matter for decision about public interest immunity before the court, which would here seem to mean withholding full consent until such time as the Advocate General’s point had been dealt with. The court reserved its opinion as to whether it was the Lord Advocate’s duty to place before the court for decision every case in which the question of public interest immunity arose. Accordingly, it is not at present clear whether the Lord Advocate or the Advocate General or the court will be deciding about matters of public interest immunity. The case has been put out by order for further procedure. We await developments, wondering the while, which would today find favour: the decision of the majority of the House of Lords in Liversidge v Anderson [1942] AC 206 or Lord Atkin’s splendid dissent.

Recommending deportation

Finally, Alili v HMA [2008] HCJ 3; 2008 GWD 11-209 is a bit unusual, being an appeal against a sheriff’s recommendation for deportation. The appellant, an Algerian national, had been convicted of possession of a false identity card. An initial sentence of 32 months had already been reduced on appeal to 12 months, discounted from 18 for an early plea. The court said that while deterrence was an important consideration, the prison sentence itself did contain a significant deterrent element and, following Willms v Smith 1982 SLT 163, a recommendation for deportation was not necessary. 

Literary pick: Guy Mannering

It is possible that the most admirable lawyer in fiction is Mr Pleydell, from Scott’s Guy Mannering:

“…surrounded with books, the best editions of the best authors, and, in particular, an admirable collection of classics.

“‘These’, said Pleydell, are my tools of trade. A lawyer without history or literature is a mechanic, a mere working mason. If he possess some knowledge of these, he may venture to call himself an architect.”