Variations on a theme

Appeal following guilty plea

As previously highlighted in this column (Journal, February 2013, 26, 27), it is by no means straightforward to convince the appeal court to withdraw a guilty plea in summary proceedings. The matter is far harder in a solemn case, where of course the accused “signs the book” by adhibiting his or her signature under the written terms of the plea.

In Kalyanjee v HM Advocate [2014] HCJAC 44 (23 May 2014), the appeal court considered the proper test to be applied in such cases within the statutory context of miscarriage of justice. The case had been referred by the Scottish Criminal Cases Review Commission; the appellant had pled guilty to the murders of his two young sons in 2008. The case had been continued on two occasions to ascertain the appellant’s mental state. At the time the plea was tendered, the appellant had received legal advice and had given his authority. He contended that both the Crown and defence psychiatrists instructed prior to the plea had failed to diagnose his paranoid personality disorder (PPD) which would have precluded a conviction for murder, and culpable homicide would require to be considered.

In such appeals the question is whether a miscarriage has resulted due to the appellant’s decision to plead guilty. The court noted that the appellant had changed representation on a number of occasions, but had the benefit of senior counsel’s involvement at the time the plea was tendered. While there was evidence from one psychiatrist that he would have diagnosed PPD at the time, there was also evidence that the crimes had been committed against a background of alcohol abuse. Accordingly the court concluded that the fresh evidence of PPD and possible diminished responsibility would not have had a material bearing and therefore no miscarriage of justice had occurred.

Sex offenders and the internet

In Connal v PF Stirling [2014] HCJAC 57 and 77 (4 July 2014), on a referral from SCCRC the appeal court considered the proportionality of restricting sex offenders from the internet. The court agreed that blanket prohibitions on internet access were impermissible and imposed conditions whereby the offender was restricted from owning more than one computer etc, and requiring police access. Internet access would be allowed in connection with approved purposes and would carry monitoring software; any device would be made available to the police on request.

Dock identification

This topic has been addressed previously and continues to arise.

In Docherty v HM Advocate [2014] HCJAC 71 (13 June 2014), the complainer had identified the accused from an emulator sheet containing photographs of 12 people. He failed to identify his assailant at a VIPER parade. The witness described his attacker at trial and identified the accused in the dock. The complainer explained that his emulator board identification was likely to be the most reliable. The incident had been captured on CCTV, although the culprit’s face was obscured. The appeal court considered that the sheriff’s directions to the jury to take care over identification evidence were sufficient in the circumstances and the appeal was refused.

In Robson v HM Advocate [2014] HCJAC 53 (4 June 2014), the appellant was convicted of two sexual offences on women in the course of the same night a short distance apart. The complainers were shown emulator sheets which did not contain a photograph of the appellant, and both women selected stand-ins. Around nine months later, one complainer saw the appellant at a pub and contacted the police. She identified him at a VIPER parade and in court. The other subsequently was shown a further book of photographs including the appellant but failed to make an identification. At a subsequent VIPER parade the witness picked out three photographs (including the appellant) as having similar features to her attacker.

The witness explained how she had found the photographs and images hard to consider but had no difficulty picking her attacker out in court. Her description to police matched the appellant and the sheriff’s directions had emphasised the dangers of identification evidence. The sheriff’s decision to allow the second complainer the opportunity to make a dock identification was upheld by the appeal court.

It is important in such cases, where a witness has not previously made an identification, that preliminary questions are put to set up the basis of asking such a question. Defence agents may need to consider seeking an identification parade if none has taken place, and may be able to take steps in court, such as asking for the accused to move position in the dock in multiple accused cases to ensure a fair trial.

Extensions of time

Akhtar v HM Advocate [2014] HCJAC 80 (16 April 2014), involved four bills of advocation. The accused had appeared on petition in October 2012. Their trial was postponed initially to allow disclosure to take place and the defence to be prepared. Extensions were granted to 20 December 2013, then 7 March 2014. The Crown informed the court that it intended to start the trial on 4 March, which would result in the case “spilling” beyond the sitting. The sheriff and sheriff clerk were concerned about court accommodation. Parties had been prepared to start the trial on 4 March, but the sheriff ex proprio motu adjourned the case to a sitting in May and extended the time bar further.

While the appeal court accepted that the sheriff had acted in good faith, the accused were keen to proceed with the case and the trial involved elderly witnesses. The Crown had been responsible for inexcusable delay and had not been in a position to start the case earlier in the sitting due to oversights on their part. The court concluded that the sheriff should not have granted the extension, and since some of the accused had suffered prejudice, refused the extensions and passed the bills of advocation.

Victims and Witnesses (Scotland) Act 2014

Certain important provisions of this legislation came into force on 13 August 2014. The Act was passed to ensure compliance with Directive 2012/29/EU of the European Parliament and Council to establish minimum standards on the rights, support and protection of victims of crime.

Section 8 places a duty on police officers (working for Police Scotland), in certain cases, to afford victims and those who appear to be victims, the opportunity to specify the gender of the police officer who is to interview them. This measure is intended to help minimise the distress to victims of sexual violence, domestic abuse, human trafficking and stalking.

Section 23 makes various changes and additions to the victim statement scheme. Such statements can be placed before the court at any time during the sentencing process. Statements can be lodged on behalf of a child and can be submitted by children in their own right from age 12.

Section 27 increases a victim’s rights to receive information about release of the offender in all cases where a sentence of 18 months’ detention or imprisonment has been imposed. Under s 16 of the Criminal Justice (Scotland) Act 2003, victims of certain prescribed offences can receive information about the release of a prisoner, if the prisoner has been sentenced to 18 months or more and the victim has intimated that they wish to be given the information. The information mainly relates to the circumstances in which a prisoner leaves prison. This may be due to temporary release, an escape, transfer to a place outwith Scotland, release on licence or parole, death of the prisoner or end of sentence. Such information is supplied in practice through the Victim Notification Scheme.

Section 27 amends s 16 to remove the reference to prescribed offences. As a result, victims of any offence will be able to receive information, where the person convicted of that offence has been sentenced to at least 18 months.

Section 28 gives victims the right to make oral representations before release on licence of life sentence prisoners, and s 29 gives a similar right to make written representations about the licence conditions that may be imposed when a prisoner first becomes eligible to be considered for temporary release from prison.