Balanced view

Charging on the evidence

One of the many differences between Scottish and English criminal procedure is that in Scotland the judge charging the jury gives directions in law but does not sum up the evidence, as occurs in England.

In two recent cases the nature and extent to which the judge discussed the evidence in the charge to the jury was considered by the appeal court.

In Younas v HM Advocate [2014] HCJAC 114 (25 September 2014) the court considered the extent to which a judge requires to summarise evidence and to do so in a balanced manner. The case involved the death of an infant when in the care of the accused, and the medical evidence relating to the cause of death. The case had been referred by the Scottish Criminal Cases Review Commission in light of the decisions in Liehne v HM Advocate 2011 SCCR 419 and Hainey v HM Advocate 2013 SCCR 309, following the refusal of an earlier appeal: [2011] HCJAC 48.

The court dismissed the ground that the judge had misdirected the jury by failing to provide a balanced view of the central factual matters for the jury’s determination and of the evidence at the trial. Referring to Snowden v HM Advocate [2014] HCJAC 100 (see below), the essence of such a complaint would involve the judge failing fairly to put the defence case to the jury. Such a criticism must be a substantial one of imbalance going to the tenor or purport of the charge, demonstrably favouring the Crown on a contentious issue of fact raised during the trial.

The court reiterated that there is no requirement for the judge to summarise the evidence: D’Arcy v HM Advocate [2013] HCJAC 173.

In Younas the death of the child could have been due to an assault by shaking, natural causes due to the inhalation of food or vomit, or some form of disease that could have produced the same result. The judge had put these possibilities to the jury, who were able to consider these alternatives along with the evidence pointing to assault. In Liehne and Hainey the causes of death had been thought to have been due to sudden infant death syndrome, or unascertained initially, and had required a more detailed reference to the evidence and the issues which the jury had to consider. Accordingly the court was satisfied in Younas that the jury had been properly directed on the evidence; their verdict demonstrated they were satisfied the death was due to an assault by the accused causing injury which resulted in a neurogenic pulmonary oedema, following which the child fitted, causing her airway to become blocked.

Similarly, in Snowden and Jennings v HM Advocate [2014] HCJAC 100 (25 August 2014) the judge’s charge came in for criticism by the appellants following a lengthy murder trial where the indictment contained 22 charges, the last involving the deaths of a father and his two children and the severe injury of his wife after their house was set on fire. The charges were extremely serious ones involving escalating gangster type activity in which Snowden was the main protagonist and Jennings the gofer.

Much of the evidence came from former associates of the accused and there was a short piece of CCTV footage around the time of the final fireraising, which was said to depict the accused. Defence expert evidence of this topic was held to be inadmissible in terms of Gage v HM Advocate 2012 SCCR 161 and this was upheld on appeal. Criticisms that the judge had not summarised all of the evidence were rejected and the court highlighted how the judge had warned the jury regarding identification evidence, statements made outwith the presence of an accused, inconsistencies in evidence and defence criticisms of evidence. The appeal was refused.

Senior counsel or solicitor advocate?

Allegations that an appellant had been defectively represented at trial by solicitor advocates were quickly dismissed by the appeal court in Addison v HM Advocate [2014] HCJAC 110 (3 July 2014), as there was no objective support for the complaints made and the test set out in Grant v HM Advocate 2006 JC 205 could not be satisfied. Indeed the Lord Justice General was of the view that the solicitor advocates and instructing solicitor had needlessly required to deal with a futile appeal and defend themselves against unsupported allegations.

The appeal concentrated on certain wider issues regarding the representation of an accused in a murder trial. The accused has a right to senior counsel at such a trial. While rule B8.4.1(b) of the Law Society of Scotland Practice Rules 2011 provides in such cases that the solicitor must advise the client they have the choice of a solicitor advocate or counsel, the court considered that to make such a decision the client should be advised of their options and given advice so that an informed decision can be taken. The rule was silent on this aspect. The court was concerned at the conflict that would arise if the instructed solicitor was a solicitor advocate or worked at a firm where a colleague was so qualified and offered to act for the client.

The decision has been discussed by the Society’s Criminal Law Committee, who will consider what changes require to be made to the rule or procedures.

Use of sentencing guidelines

With the recent announcement that a Sentencing Guidelines Council will be formed following the enactment of provisions in the Criminal Justice and Licensing (Scotland) Act 2010, the appeal court considered guidelines which were approved in Gill v PF Glasgow [2010] HCJAC 99 and Bradley v PF Falkirk [2010] HCJAC 136 in relation to benefit fraud cases, in Ryan v PF Aberdeen [2014] HCJAC 106 (29 August 2014).

The appellant pled guilty at a trial diet to obtaining £13,000 of benefit over a period of three years while working; the sheriff imposed five months’ imprisonment. Gill had been based on the English guidelines for fraud – statutory offences. While these indicated a prison sentence in cases involving £5,000 to £20,000, caution had been expressed at the availability of suspended and very short sentences in England. The amount involved in the present case was significant and the accused was not a first offender but had not previously served a prison sentence. He had been assessed as 50% disabled following an industrial accident and rented a specially adapted house which he risked losing, albeit the sheriff had tailored the sentence to avoid this.

The appellant had offered to repay the sum involved in whole, but was making repayments of £85 per month. In all the circumstances the court was of the view that a prison sentence was not necessary and substituted a community payback order of 12 months with a requirement to undertake 200 hours of unpaid work. The sheriff had doubted the appellant’s ability to undertake such work, but the appeal court decided he should be given the opportunity.

Identification evidence

This topic continues to be the subject of appeal court decisions, and Lord Bonomy’s review of possible safeguards in the wake of the abolition of corroboration has urged caution in this context by proposing the abolition of dock identifications.

In Brown v HM Advocate [2014] HCJAC 120 (22 October 2014), the appellant was charged with assault and robbery from a shop. The complainer gave a detailed description of her assailant, whom she recognised as a previous customer, and picked out the appellant’s photograph from a selection provided by the police. She also indicated that the incriminee was not the person involved. Corroboration was provided by a police officer who viewed CCTV recovered from near the locus. He identified the appellant as the individual seen in the video lingering outside the shop, entering it and running away shortly afterwards. The officer said the incriminee was not the person on this video. A further witness who had been passing the shop saw the would-be robber run past her. Like the shopkeeper, she described the man as wearing distinctive glasses. Quite properly in terms of police guidelines, she had not been shown the selection of photographs but had not been asked to attend a VIPER parade. When cited to court, she realised she knew the appellant and was adamant he was not the individual she had seen that day; she thought the incriminee was more like the person concerned. She described the man as wearing a hat and gesticulating at her, but this was contradicted by the CCTV evidence. A defence expert said the man in the CCTV images was unlikely to be the appellant and the incriminee resembled the man. The accused admitted being near the locus but denied being responsible; he had been wearing “Buddy Holly” type glasses and had wetted hair.

The appellant criticised the sheriff’s directions for suggesting that part of the passer-by’s evidence could be accepted to afford corroboration and her other evidence rejected. In fact there was sufficient evidence without her evidence, if accepted, from the shopkeeper and police officer. The usual direction had been given warning the jury to take care when considering identification evidence and the appeal was refused.

Courts Reform (Scotland) Act 2014

While this legislation, which received Royal Assent on 10 November 2014, is directed at civil court procedure and proceedings following Lord Gill’s review, it establishes a Sheriff Appeal Court to deal with both criminal and civil appeals, and creates summary sheriffs who will carry out most of the sheriff’s duties, taking over summary criminal casework as well as dealing with civil claims up to £5,000 and most family casework.

It is not clear when these provisions will come into force, but it appears that applications will be sought for summary sheriffs from next year to replace retiring sheriffs. It is likely over the next seven to 10 years that the present complement of 142 sheriffs will be reduced by about half. Sheriffs will then concentrate on solemn case work and higher value civil claims including civil jury trials. Sheriffs will tend to specialise in these areas of work and it is likely that jury trials will take place at a limited number of sheriff courts around the country.

Frank Crowe, Sheriff at Edinburgh