Judicial minefield

To comment or not to comment?

For a trial judge or sheriff to comment to the jury on the failure of the accused to give evidence is always fraught with difficulty, for it is trite that the accused is entitled to the presumption of innocence and can always elect to put the Crown to the proof of his guilt, without going near the witness box himself.

The current case law on the point is clear, so far as it goes, but it has not gone very far. In Scott v Brown 1946 JC 90, the court observed that judicial comment should be made with restraint and only where there are special circumstances which require it; in Stewart v HM Advocate 1980 SLT 245, the court stressed the delicacy of the matter and the possible pitfalls; and in Paterson v HM Advocate 1999 SCCR 750, the appeal court held that the trial judge in a double rape case had misdirected the jury by telling them that if there was something in the Crown evidence which was crying out for an explanation and none was forthcoming, they might find it easier to draw a guilty inference from that piece of evidence; there was nothing special in the circumstances justifying the comment.

So what are the circumstances in which such comments may be permissible? It appears they have never been defined, but in Hogan v HM Advocate [2012] HCJAC 12 (24 January 2012; published 20 May 2012), the court considered the propriety of comment in cases of alleged sexual abuse. The appellant had been convicted of six charges involving children of various ages, but did not give evidence at his trial. One of the grounds of appeal was that the sheriff, like the trial judge in Paterson, had misdirected the jury in dealing with the presumption of innocence when he made a generalised comment relating to the absence of evidence from the accused about incriminating matters of which he must be aware.

The appeal court reviewed the authorities and held that a general direction such as this was likely to be confusing and risk the jury applying it in areas where it should not be applied. There might be some circumstances where comment would be permissible, but such comment would have to be specific in terms and linked to a particular event or events, which was not the position in the instant case. The appeal was therefore allowed on this ground.

Balance of probabilities

It was made clear in Glancy v HM Advocate 2012 SCCR 52 that if a person accused of possession of a knife in a public place without reasonable excuse or lawful authority, contrary to s 49(1) of the Criminal Law (Consolidation) (Scotland) Act 1995, wants to raise the defence of “reasonable excuse”, the onus of proof rests with him on a balance of probabilities. In that case, the court also held that there was no need for a trial judge to direct the jury on the meaning of “balance of probabilities”, since these were simple English words and it was difficult to see how their meaning could be improved on.

It might be thought that this was the end of the matter, but in Robertson v HM Advocate [2012] HCJAC 63 (3 April 2012), the question of defence onus came back before the court following the conviction of the accused. This time the issue was whether it is a misdirection to fail to tell the jury that proof on a balance of probabilities is a lower standard than the standard required by the Crown to prove guilt.

In dismissing the appeal, the Lord Justice Clerk confirmed that there was no need to define the phrase “balance of probabilities”, but observed that it is always open to a trial judge to tell the jury that the defence will have proved a fact if they conclude that it is “more probable than not” or “more likely than not”. However, if this is not said, the jury should be told that the standard of proof on a balance of probabilities is lower than the standard of proof beyond reasonable doubt, as is the practice in England. But the sheriff’s failure to do so in the instant case was held not to constitute a miscarriage of justice, since in the particular circumstances, the question of onus had not arisen at all. The appeal against conviction was refused.

Punishment part increased

The implications of Gemmell v HM Advocate 2012 SCCR 176 are now apparent in the daily practice of sentencing discounting. Just what is the utilitarian value of an early guilty plea in any particular case? But a more fundamental issue arose in HM Advocate v McNamara [2012] HCJAC 54 (4 May 2012), where the appeal court stressed the need to apply the exact wording of s 196 of the Criminal Procedure (Scotland) Act 1995 when the court is determining “what sentence to pass on… an offender who has pleaded guilty to an offence”. Only in those circumstances may the court take into account the stage in the proceedings for “the offence” at which the offender offered to plead guilty, and if “the offence” to which the plea is tendered is not “the offence” on which sentence is ultimately to be passed, s 196 has no application.

This point arose in the course of a Crown appeal against the length of the punishment part of a life sentence imposed after the respondent had been convicted of murder, the contention being that 13 years six months (discounted from 15 years) was unduly lenient. The respondent had offered to plead guilty to culpable homicide at a preliminary diet; this was refused, as was a similar plea tendered in the presence of the jury at the trial diet. He thereafter maintained his defence that he was not guilty of murder, a defence which was rejected by the jury.

In allowing the Crown appeal and increasing the punishment part to 16 years, the appeal court held that no discount should have been allowed by the trial judge since the accused had never tendered a plea of guilty to murder. Obiter dicta to the contrary effect in Balgowan v HM Advocate 2011 SCCR 143 were disapproved, and in any event, there had been no utilitarian value in the plea tendered and refused, which (since Gemmell) was the only relevant consideration.

More Cadder appeals

The run of appeals based on Cadder and its progeny are now taking up a considerable amount of the court’s time. The cases are almost all fact-specific, raising issues such as the status of the person concerned when he said something to the police; what he actually said and where he said it; whether what he said was in response to police questioning or was a voluntary utterance; what he was told by the police (if anything) about his right to legal advice; whether he waived that right; and indeed whether the rule in Salduz/Cadder was engaged at all. It is simply because of the nature of these appeals that few matters of principle can be discerned from the opinions pronounced. Two cases make this point: HM Advocate v DL [2012] HCJAC 4 (11 January 2012; published 8 May 2012), and JB v HM Advocate [2012] HCJAC 64 (18 May 2012).

The former concerned a police interview conducted near a police van parked in Front Street, Inveraray, after the police had searched a person who had been detained under s 23 of the Misuse of Drugs Act 1971 and cautioned at common law. Nothing was found on his person, but when the vehicle in which he had been travelling was searched, the police found a jacket in the boot. He told the police the jacket was his, whereupon they found two bars of brown resinous substance in a pocket. The caution was repeated and subsequent police questions then elicited answers to the effect that the substance was cannabis and that it belonged to the interviewee. But none of this was preceded by any opportunity being given to him to consult a solicitor, a matter which the appeal court regarded as fatal to the admissibility of the answers given.

The latter case was concerned with the events following a police interview conceded by the Crown as being struck at by Cadder: the admissibility of a comment, a subsequent voluntary statement and the issue of waiver. After being charged with indecent assault, the accused had asked the police what would happen to him thereafter, getting the reply that he would be kept in custody over the weekend pending his court appearance on the Monday. He then burst into tears and commented “I poked her”. He was asked if he wanted a solicitor informed of his arrest but, having given the police the name of a solicitor, he then elected to make a voluntary statement, telling the police he did not want to consult a solicitor before doing so. The statement contained a number of admissions.

Having considered the whole circumstances, the appeal court rejected an argument that the comment and the voluntary statement were not severable from the pre-charge objectionable interview, holding that Salduz was not engaged, and that in any case, the accused had validly waived his right to a solicitor in respect of the voluntary statement. The relative ground of appeal against conviction was refused.