Video: the best evidence?

Evidence and Procedure Review Report

This document, published in March, is the result of the deliberations of a small group chaired by the Lord Justice Clerk and including Lady Dorrian, Sheriff Principal Scott and Eric McQueen, CEO of the Scottish Court Service.

The review highlights that, notwithstanding the recent Victims and Witnesses (Scotland) Act 2014, Scotland lags behind other jurisdictions in having procedures to encapsulate the evidence
of children and vulnerable witnesses and still provide a proper and timely opportunity for cross examination.

The group was attracted to the Norwegian approach, where special child-friendly “Barnehus” are set up at convenient locations to conduct interviews with children within two weeks of allegations coming to light. That system is an inquisitorial one, and interviews are conducted, following an internationally established protocol, by specially trained police officers who may put questions suggested by the defence but are not obliged to do so.

It is recognised that establishing similar centres in Scotland would have significant cost implications, and it would be tricky to graft into an accusatorial system where cross-examination of witnesses is a fundamental part of trial process.

In England, a far-reaching report on the implications about the use of video evidence for child witnesses under HHJ Thomas Pigot QC was only half implemented, though it has been used in Western Australia. Belatedly, pilot projects have been taking place in England since last year. There is a judicial protocol under s 28 of the Youth Justice and Criminal Evidence Act 1999, and an “Advocate’s Gateway”, which provides guidance on the way to cross-examine children in an age and development-appropriate way: for the latest versions see www.theadvocatesgateway.org/toolkits

By contrast, in Scotland, while s 271M of the Criminal Procedure (Scotland) Act 1995 – which enables the prior statement of a child or vulnerable witness to be produced as evidence in chief without it requiring to be adopted by the witness – has been in force for 10 years, it has been little used until recently.

The review argues generally for the encapture of witnesses’ evidence by video or police body-worn cameras, and the abolition of the hearsay rule in relation to prior statements. There have been amendments to this rule over the years, and the review is concerned about “trial by statement”, which has developed.

It is clear that for most witnesses, the ability to recall details which may be significant falls away after about a year, and rules designed to refresh witnesses’ memories and have them adopt police statements which at best are an amalgam of a question and answer session may not cover all the witness could have said. Use of video for statements would provide an opportunity to assess the demeanour, credibility and reliability of the witness.

Once again, incorporating the use of video recordings into our system en masse would require investment, training and a huge culture change by all involved in the process. There are problems in trying to conflate an investigatory interview into a forensic one suitable at least for evidence in chief, and a way has to be found to provide a meaningful opportunity for cross examination which is timely for the witness and the fair administration of justice.

The review calls for modernisation of the trial process, and all criminal lawyers should examine this report for strong hints about the way forward. The opportunity should be taken by all sections of the profession to improve training to make best use of new techniques. Legislative change alone will not improve procedures and ensure fairness for all; it will be necessary for all of us to learn and adapt to the availability of new technology and utilise it in a way to update court procedures yet ensure the system provides a proper opportunity to test the prosecution case when required.

Stated cases

In two recent cases, the appeal court has emphasised that in a summary appeal by way of stated case, the case should contain all material necessary for the determination of the appeal, either at the sifting stage or by the appeal court itself. The questions posed by the sheriff or justice should cover all matters raised in the application, which is then redundant – see FB v Procurator Fiscal Aberdeen [2015] HCJAC 14 (21 February 2015), and Donnelly v Procurator Fiscal Edinburgh [2015] HCJAC 19 (13 February 2015). The position contrasts with that in solemn appeals, where the grounds of appeal remain an important document in the appellate process.

Parties should ensure that all matters raised in the note of appeal are properly incorporated into the stated case by the inclusion of specific questions. There is also the opportunity to add further appeal grounds once the draft case has been produced. The hearing on adjustments should be used to correct any errors or omissions thought to arise in the draft. There remains, however, a power in s 182(6) of the 1995 Act whereby the court may seek an additional report from the judge at first instance on a ground which is not the subject of a question. This was done by the appeal court in Jackson v Vannet 1997 GWD 23-1146 (4 June 1997), but in White v Allan 1985 SLT 396 the conviction was quashed due to an unsatisfactory stated case. It is best to ensure the stated case covers all matters of dispute.

Breach of the peace

Although as mentioned in earlier articles, the “fiscal’s friend”, breach of the peace, has to a large extent been supplanted by s 38(1) of the Criminal Proceedings and Licensing (Scotland) Act 2010, the common law charge is still in use, but is not always properly deployed.

In AM v Procurator Fiscal Kilmarnock [2015] HCJAC 7 (28 January 2015), a breach of the peace was said to have been caused by the accused, the mother of two primary schoolboys, following two classroom assistants after she had been involved in an altercation at a school book fair.

No charge arose from that incident; the classroom assistants had become alarmed after they saw the accused and considered her to be following them in her car. The findings in fact indicated the accused had hesitated at a junction near where the women were walking and drove slowly past them in a street which had speed bumps and other traffic calming measures.

The conviction was quashed as the appeal court held on these facts that the accused had neither been loitering nor following the women. She had been accompanied in the car by her children, had not got out of her vehicle, nor shouted, sworn or revved her engine or hooted her horn. The incident occurred over a relatively short period and did not meet the standard laid down in Smith v Donnelly 2001 SCCR 800.

By contrast, in Bartkus v Procurator Fiscal Glasgow [2015] HCJAC 25 (11 February 2015), the appeal court had no difficulty upholding a conviction for breach of the peace where the appellant had repeatedly entered a shop selling women’s underwear and asked the young female members of staff all sorts of embarrassing questions about the products, and made personal comments to them under the guise of ostensibly purchasing items for his own use. No such purchases were made. Since the charges involved four separate occasions over a period of less than a week and the appellant spoke to the employees over a significant period of time, asking them inappropriate questions, the appeal court was satisfied the conduct presented as genuinely alarming and disturbing in terms of Smith v Donnelly, albeit at the lower end of conduct amounting to a breach of the peace.

A similar outcome took place in EM v Procurator Fiscal Inverness [2015] HCJAC 8 (28 January 2015), where the accused was convicted under s 38(1). She had attended at primary school to uplift her son who was engaged in banter and play fighting with another pupil; they were throwing their schoolbags at each other. The accused seized the other boy by the collar and berated him about bullying her son. The other boy’s mother reported the incident, which was prosecuted in the justice of the peace court – without the need to call any child witnesses.

While the appeal court held the circumstances amounted to a crime, it regarded it as a trivial matter and substituted an absolute discharge for the admonition imposed by the justice. The court was concerned that, while the appellant should not have shouted aggressively at a six-year-old child, a criminal conviction seemed a harsh sanction for someone of previously good character who might wish to seek employment in nursing or voluntary work with children.

DNA evidence

DNA evidence is a powerful tool in the investigation and prosecution of crime. It has focused enquiry on individuals who were otherwise not on the police radar. However, like all kinds of evidence, it is not without its complications.

In Dunbar v HM Advocate [2015] HCJAC 22 (13 March 2015), the appellant was convicted with another man of supplying cocaine by sending it in a parcel to Saughton prison.

Staff at the prison found five books in a box which had been sent. Inspection of the spines revealed sealed envelopes. Inside four of these was a quantity of diamorphine; inside the other envelope was a quantity of cocaine.

DNA evidence relating to the appellant was found on one of the envelopes. It was said to have been extracted from cellular material and revealed an incomplete DNA profile of male origin which matched a mouth swab given by the appellant. The probability of finding this was said to be one in four million. It could not be said that the cellular material was saliva such as might occur when sticking down an envelope, and there was no other evidence linking the appellant to the crime. By comparison, his co-accused had been seen on CCTV posting the parcel. Since the probability meant there could be seven or eight unrelated males in the UK who could fit the profile, the appeal court quashed the conviction.

In a similar vein, in McGartland v HM Advocate [2015] HCJAC 23 (13 March 2015), the appellant had been convicted of supplying six controlled drugs to Bowhouse Prison. A clingfilm package which was found to contain TFMPP tablets revealed cellular material which provided a DNA match with the appellant. The material was recovered where a knot had been tied to secure the contents. This wrap had been hidden in a picture frame.

Other wraps found secreted in the same way contained different drugs, but none had any of the appellant’s DNA on them or their packaging. The jury had in fact acquitted the appellant of one of those other charges at trial. The appeal court quashed convictions in respect of five other charges and upheld the conviction in respect of the TFMPP tablets.