Fairness in the balance

Cross-examination

In Begg v HM Advocate [2015] HCJAC 69 (7 August 2015) Lord Carloway was critical of the manner in which a vulnerable complainer had been cross-examined in a historical sexual abuse case. Criticism was particularly directed at general remarks designed to destabilise the witness, and the fact that she had given evidence for almost three court days.

The indictment had contained 43 charges, featuring three principal complainers and offences involving children. The accused was acquitted of an offence against one complainer, who did not otherwise feature in the case, and ultimately 17 charges were considered by the jury involving a complainer VH, of which he was convicted of two rapes, an indecent assault and an assault. VH provided supporting evidence which led to convictions on three counts of lewd practices towards children and four other offences including two rapes of a separate complainer, SM.

On appeal it was argued that the jury’s verdicts were reasonable, standing their conviction of the appellant on only four charges involving VH while acquitting him on the other 13. VH was a crucial witness since the convictions involving SM proceeded on a Moorov basis. It was suggested that VH’s evidence was “wholly lacking in credibility”, and that the jury had “selected certain charges at random spoken to by VH purely to allow them to convict of the charges” involving SM.

The charges concerned events alleged to have occurred between 10 and 24 years previously. VH had struggled with the chronology of events, and the court was critical of the fact that cross-examination opened “with a direct salvo rather than a question, presumably designed to destabilise the witness”.

The court was of the view that there was no foundation for the allegation that the jury had selected charges at random purely to allow them to convict on charges involving the other complainer, and the appeal was refused.

It added that the manner and length of the examination and cross-examination gave cause for concern in relation to the treatment of a vulnerable or indeed any witness testifying in the criminal courts. From the outset the witness was subjected not just to in-depth questioning testing the veracity of her testimony, but to direct insults as to her general character. The cross-examination was lengthy, and “conducted in a manner apparently calculated to break the will of the witness, which at times it undoubtedly did”.

Concluding, the court stated that a trial judge may place a limit on the time which may be taken in examination and cross-examination: “If a proper balance cannot be achieved by the representatives of the Crown and defence, the court may have a duty to intervene.”

It is not clear to what extent objection was taken to questioning by one party or another, or to what extent the court intervened. It is, however, the duty of the court to ensure the trial is a fair one not just for the accused but for those giving evidence. Care has to be taken in opening cross-examination with sweeping remarks about a witness; the better course should be to lay the foundation with questioning on specific issues first. Where reference is to be made to the witness’s police statement, this should be shown or read to the witness and a copy made available to the judge before questions are put about what is or is not in the statement. These are areas the court will police carefully in light of this decision.

Community payback orders

Where a community payback order is being considered following conviction for a sexual offence, certain conduct requirements are suggested by social workers along the lines proposed by the appeal court in Connal v Dunn 2014 SCCR 513. These conditions are onerous and their effect was challenged in Ross v HM Advocate [2015] HCJAC 80 (30 July 2015).

In this case, the accused had been precluded from possessing an internet-capable device or using social media or other internet communication tools, without the prior approval of his supervising officer and making any such approved devices available for inspection by the officer and Police Scotland.

Once placed on the order, the appellant discovered that he would not be allowed access to the internet until at least his three-month review. He was then told he would not be able to possess an internet-capable device until at least the six-month review, and meantime could access the internet once a week at a library or similar setting where his use could be monitored and supervised. The appellant complained that these conditions were very stringent, similar to those on parole after release from sentence for a much more serious offence.

The appeal court thought the order was working well, but recognised the case raised an important point since it was not obvious to the sentencing sheriff how these conditions would be operated. It recognised that, in making such orders, supervising officers were given a large amount of discretion. If it was seen as a concern in an area how these orders were being operated, the court could lay down more specific conditions or, in exceptional cases, set a progress review to keep practical control and oversight. It would be open to the offender to seek a review of the order by the sentencing court rather than marking an appeal.

Non-harassment orders

As domestic abuse and stalking cases continue to make up a significant element of the caseload, the question raised if the matter proceeds to conviction is whether the Crown will seek a non-harassment order as part of the sentence. Such an order cannot be made ex proprio motu by the court; once made, the order made be revisited, in particular if proceedings are raised for a breach.

In SJS v HM Advocate [2015] HCJAC 64 (8 July 2015), the appellant was convicted of a contravention of s 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 in relation to repeated abusive conduct towards his estranged wife. A non-harassment order was sought by the Crown to protect the wife and her three children.

The appeal court held that the order should not have been made in respect of the children, and restricted the order to the wife only. The indictment had contained a separate charge which alleged conduct towards two of the children but this had been withdrawn by the Crown. The only charge which remained made no mention of the children and averred conduct directed towards the wife. Since the legislation was drafted to protect “victims”, the court considered the order should be restricted to those proved to fall into that category.

It distinguished the circumstances in Robertson v Vannet 1999 SLT 1081, where threatening conduct was directed towards the accused’s former girlfriend but threats were also made against her father, which he became aware of and was apprehensive about.

The Crown regularly seeks “stay away” bail conditions in respect of complainers and other who are not named in charges. When it comes to considering a non-harassment order, a more restrictive approach may need to be taken if certain individuals are not established to have been victims of the crime charged.

In Procurator Fiscal Ayr v Murphy [2015] HCJAC 78 (21 August 2015), the Crown appealed an acquittal by the sheriff following a prosecution for breach of a non-harassment order. The accused had been prohibited from approaching his ex-partner. He had been near their son’s school about 20 minutes after his ex-partner had arrived to collect the child. The boy had played up and delayed their departure. The sheriff accepted the complainer’s evidence that the accused appeared to be attempting to speak to the child; she had told him to leave them alone and walked off with the child. The accused followed quickly for a while in the same direction and closed the distance between them.

The appeal court considered that the sheriff had erred in confusing the accused’s motivation with the question of mens rea. He had approached the complainer to speak to his son, but he could not get round the prohibition on approaching his ex-partner simply because there was another person standing next to her that he wished to speak to. Such a situation would make a mockery of non-harassment orders and defeat their purpose entirely.

Deletions and amendments

Summary complaints are regularly subject to deletions or amendments during the trial or when guilty pleas are tendered. The appellant in Carmichael v Procurator Fiscal Airdrie [2015] HCJAC 81 (15 July 2015) had his conviction quashed as the appeal court considered the sheriff’s findings in fact could not support conviction of the charge libelled.

There were discrepancies in the terms of the charge contained in the sheriff’s report and the complaint. Reference was made to the fiscal having sought to amend the complaint, to which there was no objection, but it was not clear if this had been allowed. The minutes recording the conviction were not clear either. The appeal court was particularly concerned that amendments to the complaint had not been authenticated by the clerk’s initial in terms of s 159(3) of the Criminal Procedure (Scotland) Act 1995.

In a busy court, this may be overlooked. Normally, where the fiscal seeks to amend and this is agreed to, for example as the precursor to a guilty plea being tendered, the amendment is made by the fiscal, agreed by the defence agent and initialled by the fiscal. At other times where a plea or conviction involves deletions, these may be done at the hand of the court but should be authenticated by the court. It is always worthwhile checking the libel and minutes when a case is the subject of an appeal, to ensure they accurately reflect what took place at first instance.