Criminal court: Misdirection?

In these articles I endeavour to highlight points which have arisen before me on the bench, as well as providing commentary on recent appeal decisions which may be of interest or practical benefit.

Football banning orders

I recently had to decide whether it was competent to impose a football banning order where a pyrotechnic item was found on an accused at a regulated football match.

This led me to consider McFarlane v Nisbet 2013 SCCR 388 which, from submissions made to me, did not appear to be widely known or referred to.

The appellant was charged with committing a breach of the peace by throwing a paper cup containing a soft drink onto the pitch and having with him an offensive weapon, a knuckleduster found in his pocket during a search by police officers after they had decided to eject him following the throwing of the cup. His plea of not guilty to breach of the peace was accepted and he pled guilty to the offensive weapon charge. The sheriff imposed a football banning order and the appellant successfully appealed to the High Court on the ground that imposition was incompetent, since the terms of s 51(4) of the Police, Public Order and Criminal Justice (Scotland) Act 2006 did not apply to simply possessing a weapon. The Crown made no submissions in the appeal.

Section 51(1) of the 2006 Act provides for the imposition of a football banning order on a person convicted of an offence at a regulated football match if, in terms of s 51(4), the offence involved the person who committed it engaging in violence or disorder. “Disorder” is defined as including threatening behaviour or displaying any writing or other thing which is threatening (s 56(3)).

While acknowledging at para 10 of the opinion that a knuckleduster is an offensive weapon, the court said: “in our opinion, having an offensive weapon on one’s person, at least if that offensive weapon is at all times concealed, does not have the result that the person having the weapon is ‘engaging in… disorder’”.

The court went on to say: “we have had little difficulty in concluding that what must be taken to have been intended by the Parliament by ‘disorder’… is an active ‘disturbance’ or ‘breach of public order’. That is the primary meaning of ‘disorder’, at least where it relates to criminal conduct… The expression ‘engaging in violence or disorder’ is clearly indicative of activity constituting a criminal offence. Section 56(3) does not provide a comprehensive definition of ‘disorder’ but it does list certain behaviours which are included within the concept of ‘disorder’. Again, each of the examples is of an activity: ‘stirring up’, ‘using’, ‘displaying’. Here, what the appellant was convicted of required no activity on his part beyond having a prohibited item in his pocket”.

Thus simple possession of the knuckleduster concealed in a pocket was held not to amount to engaging in “violence” or “disorder”.

The court also took the opportunity to comment on a principle of interpretation that where a statute provides for interference with liberty, whether by a new offence or new penalty, “the proper construction will generally be one which curtails rather than extends the scope or application of the new provision” (para 11).

Jury directions

A recent discussion with a colleague about DNA evidence, a circumstantial case and jury directions led me to consider Ritchie v HM Advocate [2020] HCJAC 7, an unsuccessful appeal based on alleged misdirection by the trial sheriff. In addition to DNA evidence, the opinion emphasises that a judge’s charge has to be read as a whole. Attempts by an appellant to focus on particular passages in isolation in support of a miscarriage of justice may well fail, especially where there is strong evidence of guilt as there was here.

The appellant was found guilty of a charge which libelled that on 11 or 12 May 2018, he broke into a dwellinghouse and stole a quantity of jewellery, medals, coins and a box while on bail. The house had been checked on 11 May, when it was found to be in order. By the following day it had been ransacked, with jewellery, war and constabulary medals, coins and a box stolen. One of the windows had been forced. A small black torch, which did not belong in the house, was found on the floor inside the front door. It was not disputed that this torch had belonged to the appellant. It was also not disputed that his DNA was found on it. The appellant incriminated his brother.

Expert evidence about the deposit of DNA was led by both the Crown and the defence. There were various scenarios put to the experts about how DNA can be deposited, how long it could remain, how it could be transferred and whether it was primary or secondary. The sheriff described all of this evidence as essentially common sense.

There was, however, a disagreement between the experts in relation to four peaks, which had been identified from the DNA printout on testing. The Crown expert considered that these were simply artefacts of the procedure. The defence expert considered that these were part of the DNA profile of an unknown person or persons.

In his police interview, the appellant admitted being in the vicinity of the house, having been visiting someone about 150 metres away. He was asked about how a black torch with his DNA on it came to be in the house, and explained that it was possible that he had given his brother a torch. He had given him torches, not that recently, but about a month previously. He said that the torch had been a black rubber torch, although he also had “heaps of wee silver torches”. If the torch had been his, his DNA would have been on it.

The appellant submitted that the sheriff had misdirected the jury on the various scenarios and had in effect reversed the onus of proof. The defence scenario had been that the torch found at the scene might have been given by the appellant to his brother and used in the commission of the offence. The sheriff had suggested that the jury had to have evidence that the incriminee had touched the torch fleetingly and that it had been that torch which had been found at the scene. This would, it was argued, suggest that the same onus applied to both the Crown and the defence.

It was accepted that the charge had to be read as a whole, under reference to Black v HM Advocate 2011 SCCR 87. The appellant then argued that the sheriff had said to the jury that hypothetical situations given in speeches were not evidence. This suggested that the defence position was hypothetical. This too was incorrect. The appellant had stated that this brother had borrowed the torch or torches from him. The defence expert had suggested that the DNA of an unidentified person was on the torch. When all these matters were taken together, the jury had been encouraged to the view that there was an onus on the appellant.

This had been compounded by a remark by the procurator fiscal depute (“PFD”) about the appellant’s answers at police interview. The sheriff had failed to correct what was an error of law on the part of the PFD. It had been misleading and apt to confuse the jury.

The Crown responded that all that the sheriff had done was to encourage the jury to scrutinise the evidence with care and be satisfied that there was an evidential basis for the submissions made to them. She had given sufficient directions on the burden of proof, when the charge was read as a whole. The PFD’s comment had not been intended as a statement of the law, but a submission about what the jury should do with the appellant’s interview. The sheriff had been in the best place to consider the appropriate response to that remark. She had correctly determined that the standard directions would suffice.

At para 10 of the opinion the court described the evidence of the appellant’s DNA on the black metal torch as “highly incriminatory”. The appellant did not testify and did not identify the torch produced at trial as one given to his brother. At interview he had referred to torches given to his brother in the past, including a black rubber torch around a month prior to the incident. The torch recovered at the locus was neither rubber, nor silver.

Refusing the appeal, the court said at para 11: “the sheriff made it clear that the onus was on the Crown to prove the case against the appellant beyond reasonable doubt and that no such onus rested upon the appellant. She correctly explained to the jury that various hypothetical situations, which had been put by both parties to the experts and perhaps to the jury themselves, did not constitute evidence of fact in the absence of evidence to support them. The sheriff could have expressed herself with greater clarity in relation to the onus remaining on the defence when dealing specifically with the appellant’s version, as given in his interview, and when dealing with the torch and the defence expert’s view of the DNA coming partly from an unknown source. However, the directions must… be read as a whole. When that is done, it can be seen that the sheriff made it clear that the onus remained on the Crown and that there was no such onus on the defence. The sheriff’s reference to hypothetical situations was merited in the circumstances. Anything said by the PFD was adequately covered by the sheriff in her general directions on onus; the sheriff being in the best position to determine what was required in order to correct any misconception that the jury might have had from what the PFD had said”.

That sentiment is echoed in the more recent authority of IA v HM Advocate [2023] HCJAC 24 at paras 9 and 10. A judge’s charge, therefore, must be considered as a whole and in the context of the totality of the trial.

There is of course in reality nothing new in this, as can be seen from: Renton and Brown’s Criminal Procedure (6th ed), para 29:30; Muir v HM Advocate 1933 JC 46, at 49 per Lord Sands; McPhelim v HM Advocate 1960 JC 17, at 21 per the Lord Justice Clerk; Gemmill v HM Advocate 1980 JC 16; Deeney v HM Advocate 2014 SCCR 672 at para 22; and Douglas v HM Advocate [2013] HCJAC 56.

In terms of Sim v HM Advocate 2016 JC 174, at para 32: “words should not be scrutinised in isolation or as if they were part of a conveyancing document or a provision in a penal statute”.

Access to legal advice

Many cases start their life with a search. The unsuccessful appeal McLean v HM Advocate [2023] HCJAC 16, an indecent images case, answers the question of whether during the search of a house under warrant an occupier requires to be given access to legal advice before responding to a police request for a PIN or password for electronic devices found during the search.

At para 14 of the opinion the court states that in terms of s 44 of the Criminal Justice (Scotland) Act 2016 it is clear that the entitlement to legal advice arises when “in police custody”. In terms of s 64 this means after arrest. Prior to arrest, a person is free to access legal advice if they so wish.

The appellant in this case was not in police custody. Although he may have been a suspect in a general sense of being a person suspected of committing offences of this type, he could not have been charged until execution of the search and recovery of the images.

At para 17, the court said: “The police are entitled to make requests outwith the confines of the police office which are designed, not to elicit an incriminating reply to a charge, but to progress their inquiries. In the context of a search under warrant, that will include being able to ask persons to open lockfast places or to provide the necessary keys or combinations to do so or, as in this case, to provide PINs or passcodes to enable access to devices which fall within the scope of the search warrant.”