Crown counsel slated over conduct of abduction and rape trial
Only careful jury directions by the trial judge saved an accused charged with abduction and rape of a 15 year old girl from an unfairly prejudicial trial due to comments by the prosecuting advocate depute, the Criminal Appeal Court has ruled.
In refusing the appeal against conviction by KP, the court also expressed its unease at the Crown's principal submission in the appeal that, whether regarded individually or cumulatively, none of the advocate's questions and none of the comments in his speech to the jury were prejudicial to the fairness of the proceedings – which, the court stated, suggested that "there is a broader question as to the ethos and culture in the prosecuting authority".
KP and the complainer were among a group of young people socialising on a beach. KP was alleged to have put his hands down the complainer's trousers and then taken her out of sight of the group to a place where intercourse took place. The complainer had tried to phone a friend, whose voicemail recorded her saying "You are raping me" and "Get off me". KP did not have a detailed recollection but maintained intercourse was with consent, and that the recorded conversation did not take place.
KP gave evidence and in cross-examination he was asked: “Do you often have sex with people and just forget about it completely later?... I mean will you go out tonight and have sex with somebody?” The question was withdrawn following objection. After consideration the trial judge refused a motion for desertion, holding that various inappropriate questions could be dealt with by instructing the jury to exclude them from their consideration.
In his speech to the jury the advocate depute then stated that "as a matter of law" there was enough evidence to convict, and that the charge had been "proved by the evidence beyond reasonable doubt, as I’ll go on to show”. In other passages he made his view plain that the complainer’s evidence was in accordance with the facts: it was “the truth”; an answer by KP was “breathtaking, the arrogance of it, he is simply panicking”; the essential elements of the case “have all been proved beyond reasonable doubt”.
The trial judge directed the jury to ignore certain questions and comments by the advocate depute and exclude them from their consideration, likewise assertions in his speech as to what was and what was not true, and to what might have been perceived as his personal opinion. It was stressed that it was for them to decide what had or had not been established by the evidence, and "if you understood there to be any positive assertions that, as a matter of fact, certain things which actually are disputed in this case, actually happened, or were true, then that should be completely ignored, as should any personal opinions expressed”.
For KP it was argued that irremediable prejudice had arisen from the conduct of the advocate depute. It went beyond the acceptable bounds of a prosecutor acting in the public interest and seeking to lay before the jury evidence in a fair manner.
Breach of principle
Delivering the opinion of the court, Lord Malcolm, who sat with the Lord Justice Clerk Lady Dorrian, and Lord Glennie, said it was a "fundamental principle" that "A prosecutor must not convey an impression that he has a personal opinion that the accused is guilty, nor that the investigations made by the Crown lead to that conclusion. (Counsel for the defence is under a similar obligation; indeed no forensic pleader should forfeit their professional independence by expressing a personal view on the justice of their client’s case.)"
After considering other cases he added: "There must always be a place for putting to a witness that he is being untruthful – but that should only be done on a demonstrably justifiable basis arising from the evidence, or absence of evidence; not from an a priori assumption that others are correct and he is a liar, and certainly not because that is the personal opinion of the examiner. This is all the more so in the context of a criminal trial where, in the High Court, the advocate depute represents the Lord Advocate who represents the Crown, and the liberty of the accused, who is presumed to be innocent until convicted, is at stake."
On the main ground of appeal Lord Malcolm commented: "It is clear that a substantial and prejudicial departure from good and proper practice occurred at this trial. That it should happen at all is concerning in itself. However, the matter does not stop there. This appeal was based upon criticism of the conduct of one of the Lord Advocate’s deputes in a rape trial conducted in the High Court. The presumably carefully considered position of the Crown in response to this appeal was presented by another of the Lord Advocate’s deputes... If they were the carefully considered position of the Crown, the failure to acknowledge that something had gone seriously amiss requiring, at the very least, clear and direct action by the trial judge, would suggest that there is a broader question as to the ethos and culture in the prosecuting authority."
Concluding with a case in which although counsel’s departure from good practice had been regarded as “very reprehensible”, the trial was not condemned as being unfair, he ruled: "We adopt a similar line in thinking with regard to the present appeal. While the court wishes to express its disapproval as to what happened in the present case, it has concluded that the fairness of the proceedings was saved by the judge’s careful directions. In these circumstances the first ground of appeal falls to be rejected. It would have been a different matter if the judge had not been alert to the problems, or had failed to convey the appropriate instructions to the jury."
In light of this ruling, the judge had not erred in refusing to desert the diet.