Friday miscellanea number 3

(a) Prejudicial publicity

Thanks to Scott Wortley for drawing my attention to Sinclair v HM Advocate [2007] HCJAC 27, which deals with a point raised prior to the abortive World’s End murder trial. Sinclair's counsel argued here that he could not receive a fair trial due to adverse pretrial publicity, in particular direct speculation about whether he was responsible for the World’s End murders, including material which continued to be available on the internet. (The opinion was issued some months ago, but for obvious reasons could not be published at the time.)

The decision – rejecting Mr Sinclair’s plea – reflects the invariably sceptical approach of the Scottish courts to pleas in bar of trial based on allegedly prejudicial publicity. This is accompanied with a strong faith in juries to discharge their functions properly and not be affected by such matters. This faith is, of course, near impossible to shake given that the courts are unwilling to allow more than the most rudimentary pretrial questioning of jurors and the Contempt of Court Act 1981 largely prohibits it post trial.

Pretrial publicity is also one ground being considered in the ongoing Luke Mitchell appeal (see Mitchell v HM Advocate [2006] HCJAC 84, where the appeal court overturned the decision of the single judge not to specify that ground as arguable). It seems unlikely to be the key issue there, but the point is an interesting one, particularly because Mr Mitchell’s counsel had argued at first instance that not the trial should be halted, but that it should be heard outside of Edinburgh. There is little case law on such motions and the relevant test is unclear: if a fair trial can be expected in the court to which the Crown has indicted the case, does the court nevertheless have a discretion to require it to be held elsewhere just to be on the safe side? Of course, even if the court does have such a discretion, a failure to exercise it cannot in itself be said at a later stage to be a miscarriage of justice.

(b) Sentencing and family life

Thanks to Alyson Evans for drawing my attention to this BBC report of a rather unusual deferred sentence passed by Sheriff Foulis in Perth on Wednesday. Richard Mullen, 15, and described as “responsible for a crimewave in Blairgowrie” has had sentence in respect of certain offences deferred until the end of January on the condition that he does not approach or contact his father or brothers. According to the BBC, Sheriff Foulis said (the “quote” runs together comments made both to and about Mullen):

"If there is any prospect of success in respect of this young man then he really has to cut ties with his father and brothers… When you leave this court today you are in no shape or form off the hook. I can potentially come down on you like a ton of bricks… This must be considered a last opportunity to avoid a life spent with significant periods in custody… His brothers and father are leading him down a path to Polmont and then to adult prison."

The case bears certain similarities to Reid v Napier 2002 SLT 1229, where R was sentenced to two years’ probation on condition that she did not visit her boyfriend (who was then in prison). R was pregnant with her boyfriend’s child, who was born shortly afterwards. The appeal court rejected an argument that the condition was incompatible with her right to respect for family life under article 8 of the ECHR. The condition imposed by Sheriff Foulis is, however, not quite the same given that Mr Mullen is a child himself.

(c) Lockerbie: further developments

Robert Black has written a fascinating blog post on the second procedural hearing in the Lockerbie appeal, which seems to have thrown up a number of significant issues including public interest immunity and a renewed attempt to argue that when the Scottish Criminal Cases Review Commission refers a case to the appeal court, the appeal should be restricted to the issues identified by the Commission. Click here to read it.

Stop and search and political posturing

Last weekend, it was reported that the British Transport Police had carried out over 14,000 stop and search operations at train stations in Scotland since July, as compared to a total of 135 by all Scottish police forces in 2007. That led to a demand for an explanation from the Scottish Justice Secretary, Kenny MacAskill, who said that the situation “seems to me to be unacceptable” and that he was planning to hold a meeting with the BTP about the situation. (See this report on the BBC News website.)

Today, a UK transport minister, Tom Harris MP, who represents a Glasgow constituency, has written to Mr MacAskill demanding an unreserved apology for his “outrageous” comments (click here for a report and a clip from a radio interview with Mr Harris). In his letter, he defends the BTP’s actions as follows:

"Terrorists have recently targeted transport infrastructure in this country (London Underground and Glasgow Airport) and it is therefore right that the BTP are vigilant and do everything practicable within its authority to disrupt and deter terrorist activity."

It might have been better for Mr Harris if he had omitted the bracketed text, which rather weakens his point. British Transport Police’s remit runs only to national rail services and the London Underground (click here for a brief discussion of the BTP’s remit and its future).

It follows, therefore, that Strathclyde Police – and not the BTP – have responsibility for policing Glasgow Airport, the Glasgow Underground, Prestwick Airport and the road network throughout their area. (It is not clear to me which of the two has responsibility for the Glasgow suburban rail network outside of the mainline stations.)

As the minister responsible for the BTP, Mr Harris must be taken to be aware of their remit. So it is unfortunate that he chose to comment directly about the necessity for stop and search operations, rather than (say) concentrating on the manner in which Mr MacAskill made his comments and saying something about the need to trust the BTP's professional judgment. As it is, it is difficult not to take Mr Harris' comments - although they are unlikely to have been intended this way - as being a clear criticism of Strathclyde Police (and other Scottish forces) for not exercising stop and search powers.

While Mr Harris was quick to criticise Mr MacAskill for not telephoning the BTP to discuss the matter before making his criticisms public, it emerged during his radio interview that he had not phoned Mr MacAskill himself, but had instead written a letter – which he released to the media before it was received by Mr MacAskill.

Regardless of whether stop and search powers are being legitimately exercised or not, neither of the politicians involved – and certainly not Mr Harris – seems to come out with much credit. Apologies all round? (Unlikely.)

[Update (2/1/08): A comment posted to this article states that the BTP do in fact police the Glasgow Subway (the official name for the system). On further checking, it appears that BTP took over policing duties for the Subway in early 2007. Apologies for the error (and also for the delay in publishing the comment and making this correction, due to the Christmas break). That weakens, but does not seem to invalidate, the argument made here.]

Reforming sexual offences

I understand that the Scottish Law Commission's Report on Rape and Other Sexual Offences is to be published today. If so, the report should be available shortly at this link, and a news release summarising it should be available here.

[Update (19/12): See now news reports in The Herald (with a separate commentary including a piece by Sandy Brindley of Rape Crisis Scotland), The Scotsman (including a commentary by Fiona Raitt) and on the BBC News website.]

It's the bicycle that makes the difference

In the first post on this blog, about Robert Stewart’s sexual escapades with a bicycle in an Ayrshire hostel, I included a link to the case of Steven Marshall, who pled guilty to simulating sex with a Galashiels pavement after drinking while taking medication for arthritis.

At the time, Sheriff Drummond deferred sentence for background reports and placed Mr Marshall on the sex offenders’ register for five years. He seems now to have decided that this was unnecessary: according to the BBC News website, he ruled yesterday that there was not a significant sexual aspect to the case, and so Mr Marshall could be sentenced to 12 months probation without being placed on the register.

It seems rather odd to say that there is not a significant sexual aspect involved in simulating sex. (Perhaps not, though: actors and actresses interviewed about filming sex scenes invariably remark about how non-sexual they are. Unless you’re Jonathan Rhys Meyers, who when asked about The Tudors (click here and scroll down), somehow stumbled into saying “But when you’ve worked with somebody like I’ve worked with Natalie Dormer for a second season and then you’re kind of like doing a sex scene, you know each other so well, it’s like a sex scene with your sister…”)

But why is this even the relevant question? Isn’t public indecency – the offence to which Mr Marshall pled guilty - by definition a sexual offence in terms of the sex offenders’ register? The answer to that question is not apparent on the face of the legislation. In Scotland, the relevant offences are those listed in paragraphs 36-60 of Schedule 3 to the Sexual Offences Act 2003. They include at paragraph 42 “[s]hameless indecency, if a person (other than the offender) involved in the offence was under 18”, and at paragraph 60 (as a catch-all provision) any offence not specified in the list “if the court, in imposing sentence or otherwise disposing of the case, determines for the purposes of this paragraph that there was a significant sexual aspect to the offender’s behaviour in committing the offence”.

The question asked by Sheriff Drummond is relevant under paragraph 60 but not under paragraph 42. So, which does Mr Marshall’s case fall under? Does “shameless indecency” include “public indecency”? This apparent ambiguity arises because the 2003 Act was passed before the appeal court judicially abolished the crime of shameless indecency and replaced it with the (supposedly) narrower crime of public indecency (Webster v Dominick 2005 JC 65).

The ambiguity has, however, been addressed by the appeal court in Nelson v Barbour 2007 SCCR 283, which seems to hold that the reference to “shameless indecency” in the 2003 Act must now be read as “public indecency”. On that basis, Mr Marshall’s case is a paragraph 42 one and any question of a “sexual aspect” was irrelevant. Instead, the correct question was whether someone under 18 was “involved”. (The answer to that question is uncertain. Being a witness is probably enough to be "involved" in a case of public indecency, given that the offence is based on the conduct's potential to offend those witnessing it. The BBC refers to a “young woman” as being one of the witnesses, but does not give her age.)

This analysis may be unfair, based as it is on a news report which does not set out Sheriff Drummond’s reasoning in full. Moreover, dealing with the case in this way seems to have reached a desirable result: it is not clear what good placing Mr Marshall on the sex offenders’ register would have done. But, remembering that Mr Stewart was placed on the register on the basis of the catch-all provision, the question has to be asked: why was it sexual for Mr Stewart to simulate sex but not for Mr Marshall? Is it the bicycle that makes the difference?

The reasonable time guarantee: a fairly honourable defeat

Thanks to Tony Kelly for drawing my attention to Spiers v Ruddy [2007] UKPC D2, a decision of the Judicial Committee of the Privy Council issued last Wednesday. Here, the Committee has resolved the conflict between Scotland and England over the reasonable time guarantee in criminal trials.

Prior to Spiers v Ruddy, the position was as follows. (For discussion, see Himsworth (2004) 8 Edin LR 255.) In Scotland, where the right to trial within a reasonable time had been breached, the Lord Advocate would be acting incompatibly with the accused’s article 6 rights to proceed further, and so the prosecution would have to be brought to an end (R v HM Advocate [2002] UKPC D3). In England, proceedings could be halted only where a fair trial was no longer possible or it was unfair to try the defendant for a “compelling reason”; otherwise a lesser remedy could be given (Attorney-General’s Reference (No 2 of 2001) [2003] UKHL 68, a decision of nine judges). These decisions were reached by a majority: in both cases, Lord Hope of Craighead and Lord Rodger of Earlsferry were in favour of the absolutist position taken in R. (In that case, they had been joined in the majority by Lord Clyde.)

Both of these judges recant in Spiers v Ruddy, where the conflict is unanimously resolved in favour of the English position. It is a remarkably short judgment for such an important issue (a total of 29 paragraphs compared to 168 in R v HM Advocate and 179 in Attorney-General’s Reference). Rather than a full review of the issues involved, it is a reconciliation attempt which allows Lords Hope and Rodger to change their views with honour and without having to admit to any error at an earlier stage. The Committee seizes on some recent decisions of the European Court of Human Rights which talk of the possibility of preventing a “continuation” of a breach of the reasonable time requirement and suggest that a breach can be remedied by “expedition” of proceedings. On that basis, it is said, the decision in Attorney-General’s Reference must now be preferred.

This decision dramatically weakens the protection offered by the reasonable time guarantee in Scots law (see also this earlier post on a possible shift in the time when that guarantee starts to run). Matters are now not all that different from the pre-Scotland Act position where delay would only result in proceedings being halted (on the basis of “oppression”) if a fair trial were no longer possible.

Spiers v Ruddy does allow for remedies short of barring a trial where the reasonable time guarantee has been violated, but these may not be particularly valuable to accused persons. In Attorney-General’s Reference, Lord Bingham said (at para 24) that “[i]f the breach is established before the hearing, the appropriate remedy may be a public acknowledgement of the breach, action to expedite the hearing to the greatest extent practicable and perhaps, if the defendant is in custody, his release on bail… If the breach of the reasonable time requirement is established retrospectively, after there has been a hearing, the appropriate remedy may be a public acknowledgement of the breach, a reduction in the penalty imposed on a convicted defendant or the payment of compensation to an acquitted defendant.”

It is not clear whether Lord Bingham meant to exclude sentence reduction as an appropriate remedy where a breach is established before a hearing, and there must surely be cases in which the other remedies suggested will not themselves be sufficient. There has been only relatively limited discussion in England of sentence reduction as an appropriate remedy for a breach of the reasonable time requirement, but there are at least two cases: Miller v DPP [2004] EWHC 595 (two year delay in speeding case meant that it was appropriate to find “exceptional hardship” established and thereby reduce the period of disqualification which M was otherwise due to serve as a result of totting up) and R v Wheeler (Darielle) [2004] EWCA Crim 572 (undesirable for W to go to prison for purchasing goods with stolen cheque books and credit cards five to eight years ago). It is unlikely that the courts will develop clear “sentence discounting” guidelines: these may be attractive as a means of encouraging people to plead guilty (see earlier post), but there is no such “case management” advantage here.

More Friday miscellanea [UPDATED]

(a) Drunkenness and mitigation

Thanks to Scott Wortley for drawing my attention to a Parliamentary written answer from the Justice Secretary on drunkenness as a mitigating factor in sentencing two days ago. The question and answer are as follows (click here for the original record):

Hugh Henry (Paisley South) (Lab): To ask the Scottish Executive whether being drunk is considered to be a mitigating factor in determining sentences.

Kenny MacAskill: High Court Judgments since the 1980s have made clear in common law that alcohol should not be regarded as a mitigating factor in crimes. The time is now right to review whether that message from the High Court is being heard clearly and consistently enough by those who have contact with or are involved in the criminal justice system. We are considering what measures may be necessary to make it explicit that being intoxicated at the time of the commission of an offence should not be submitted as a mitigating factor at the point of sentence.

It is not clear whether anything in particular has prompted this, and it is doubtful that there is any need for some kind of explicit rule. Apart from anything else, it is easy enough to imagine exceptional cases where intoxication could clearly be part of a plea in mitigation (imagine, for example, a case where someone inexperienced with alcohol has got drunk, committed some minor crime out of character and been so shocked by his actions that he has renounced alcohol and become a teetotaller?) A decision to “make it explicit” that intoxication is not mitigatory might be criticised as more a case of being seen to be doing something (compare this earlier post) rather than actually making a difference. (But it would be wrong to be churlish at this stage - a review can do no harm and is always to be welcomed.)

[Update (14/12): Thanks to FS (in the comments section) for drawing my attention to an earlier spat between Joe Beltrami and Mr MacAskill on this subject. For more details, see the BBC News website, and a rather mischievous exploration of Mr MacAskill's motives by Brian Monteith appears in the Evening News (scroll down to the second item).]

(b) Appealing a sentence, forty years on

Reid v HM Advocate [2007] HCJAC 70, published on the Scotcourts website today, is an (unsuccessful) appeal against a sentence imposed forty years ago. This was Mr Reid’s first such appeal – it is not a second appeal by virtue of a reference by the Scottish Criminal Cases Review Commission. As such, it is probably some sort of record. (The normal time limit for lodging an appeal against sentence is two weeks, but that can be extended by the court under s111(2) of the Criminal Procedure (Scotland) Act 1995.)

Mr Reid had pled guilty to culpable homicide on the basis of diminished responsibility in 1967 and was committed to the State Hospital in Carstairs. He now sought to argue that the original hospital order should be quashed and a life sentence substituted in his place. That may seem an unusual contention, but the point was that his efforts to seek release from hospital had failed, and a life sentence would allow him to seek release by way of the Parole Board instead. Those circumstances themselves, of course, are merely the motivation for an appeal and not a basis for one, and it was always going to be difficult to persuade the appeal court that the initial order (pronounced without opposition) was a miscarriage of justice.

(c) Provocation and confusion

Touati and Gilfillan v HM Advocate [2007] HCJAC 73, published on the Scotcourts website yesterday, is an appeal against two convictions for murder. One of the appeals succeeded and the court has continued the appeal to allow the Crown to address it on the appropriate disposal. (The court has said it is minded to substitute a verdict of culpable homicide, but it may be that the Crown will want to seek permission for a retrial.)

The reasons for the appeal succeeding are complex, involving the correctness of the trial judge’s directions on a number of interrelated issues. In particular, the trial judge’s directions on provocation are criticised (see paras 30 and 31). In fairness to the trial judge, the difficulties there appear to be largely a result of the decision in Drury v HM Advocate 2001 SLT 1013. The appropriate directions have now been clarified by Gillon v HM Advocate 2007 JC 24, but that decision came some time after the trial in this case.

Bad news for strippers

It is fair to say that the original decision to charge police stripogram Stuart Kennedy with possession of offensive weapons did not, after Sheriff Stewart acquitted Mr Kennedy last week (see earlier post), receive a sympathetic response in the media. Among the more entertaining of the various critical comments was the response of an anonymous retired constable in the Press and Journal. In his view, the case had “given the Grampian force a bad name” and he wondered whether the “the bosses of the two policewomen who questioned the Aberdeen stripogram were graduates in geography or economics or something else”.

Such criticism, however, has not deterred the Crown, which confirmed today that it has lodged an appeal against Sheriff Stewart’s decision. The full story is on the BBC News website.

P.S. Google Analytics has been counting the number of visits to this site since the 8th November. Between 3 and 4pm this afternoon, that number passed 1,000, which is very encouraging for a new site in a relatively "niche" area. Thanks for reading!

"I had that guy in the front of my cab once..."

Today’s Scotsman has, as its front page story, a report of a taxi driver acquitted of breach of the peace for allegedly racist remarks. Apparently John Young, 71, had been reported to the police by his (white) passengers who were angry at his use of the work “P***s” (as the Scotsman reports it) rather than “Asians”. (He also seems to have blamed members of that ethnic group for others being unable to get places at certain schools, but it seems to have been his choice of language rather than his claim which offended his passengers.)

I have already written a commentary on the case for the Scotsman (available here after the main story) and won’t repeat what is said there. The Scotsman has referred in its report to the earlier trial of Stuart Kennedy (see earlier post), suggesting that this latest case “adds to claims prosecutors are wasting taxpayers’ money”. In fairness to Crown Office, while the proximity of these two cases must be embarrassing, it has to be said that they represent only the most miniscule proportion of the many tens of thousands of cases prosecuted every year.

Nevertheless, objectionable as Mr Young’s alleged language may have been, it is difficult to see how it could have been said to amount in law to a breach of the peace (“conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community”, as the court put it in Smith v Donnelly 2002 JC 65 at para 17).

In his commentary to the recent case of HM Advocate v Murray 2007 SCCR 271 (Sh Ct), where a sheriff threw out a charge of breach of the peace against a man who told social workers that he intended to assault and murder a child, Sir Gerald Gordon remarks (at 282) that “[t]he charge is somewhat of a throwback to the earlier view that if something happens which causes concern or should not have happened, it must be a crime, and if one cannot think of any other crime which suits the situation it must have been a breach of the peace.” Those remarks apply with even greater force here.

Distress as corroboration and authors as authority

The opinion of Lord Hodge in HM Advocate v L [2007] HCJ 16, published on the Scotcourts website yesterday, is an interesting discussion of the use of distress as corroboration in rape cases where it is not alleged that the accused used force to have intercourse with the victim.

To summarise the problem: where a complainer alleges that an accused had sexual intercourse with her by force, it is accepted that evidence of her distress after the event can be used as corroboration establishing both the truth of her account and the fact that the accused had the mens rea required for rape. However, it has not been accepted that distress can be used in this way where force is not alleged, particularly in cases where the charge of rape is based on a claim that the complainer was asleep at the time.

Lord Hodge sidesteps the problem by arguing that there was other evidence before him which could, in total be used to provide corroboration (see paras 6 and 13), and goes on to suggest that the problem may not be a real one at all: it is “unlikely that there will be many cases where the only independent evidence available to the Crown is evidence of distress” (para 15). I have suggested otherwise (2004 SLT (News) 141), but then it never occurred to me (and I still have doubts) that facts such as “the complainer had left behind her mobile phone, which suggested that she left in a hurry” and “the age gap between the complainer and the accused” could be used as corroboration of mens rea if distress could not. Nevertheless, the result is a welcome one, because some of the earlier decisions on distress as corroboration of non-forcible rape threatened to evidentially render that crime out of existence by making it impossible to prove.

One other point about Lord Hodge’s opinion is of interest. The question he addresses has – unusually for most questions coming before Scottish courts – already been extensively discussed in journal articles (Chalmers 2004 SLT (News) 141, Ferguson 2007 SCL 1, Redmayne 2006 JR 4, Scott 2005 SLT (News) 65). None of these articles is referred to, and it is unclear whether they were cited to the court. Lord Hodge – a former Scottish Law Commissioner – does, however quote the Commission’s treatment of the issue in its Discussion Paper on Rape and Sexual Offences.

The tendency of Scottish courts (and perhaps counsel appearing before them) not to refer to journal articles is sometimes characterised as a lack of receptiveness to academic opinion. Famously, when Lord Ross did refer to a Scots Law Times article in Deutz Engines Ltd v Terex Ltd 1984 SLT 273 he described it as a piece by “two individuals whom I understand to be academic lawyers” on which it was “not necessary or appropriate to pass comment”. But here, the absence of reference to journal articles can hardly be described as unfair to academics. Of the four articles listed above, the two by academics take broadly the same line as the Commission (which cites one of them). So the lack of reference to journal articles does not leave the academics out in the cold. Instead, and perhaps ironically, it is the views of two QCs over which the opinion passes without comment.

"Protecting" doctors (allegedly)

On the 30th August, Dr Helen Jackson, a GP, was stabbed at work in her Glasgow surgery. In a radio interview the next morning the Minister for Public Health, Shona Robison, committed to extending the Emergency Workers (Scotland) Act 2005 to cover GPs and other primary health care staff. She said:

“Primary care staff in particular I have always argued were the key group of staff which should have always be included in that legislation because they work in the community often in relative isolation with not many people around and about them and they were always more vulnerable. It is just unfortunate that those calls weren't heeded when the legislation was going through, but we intend to make that right now, as quickly as we can.”

And Ms Robison has now gone one step further towards doing just that, announcing yesterday that a statutory instrument will be made - as permitted under section 8 of the 2005 Act - to extend it to “doctors, nurses and midwives whenever and wherever they are on duty”.

What does the 2005 Act do? It creates various offences of assaulting or impeding emergency workers. Of course, assaulting anyone is a criminal offence, but significantly, the Act allowed sheriffs to hand out stiffer sentences in summary procedure than they could normally do in such cases (a maximum of nine months as opposed to the default of three). There is also some value in having specific offences of impeding people responding to emergencies, where there may have been no clear assault (and doctors, nurses and midwives responding to emergencies are already covered).

But shrieval summary sentencing powers were increased to twelve months across the board yesterday, so the sentencing powers under the Act now confer no advantage. In any event, the assault on Dr Jackson is far too serious to be prosecuted under summary procedure (the only way in which offences under the 2005 Act can be) and proceedings have been taken in the High Court against her alleged attacker.

So what is the rationale for yesterday’s announcement? The Minister’s civil servants have clearly advised her that the attack on Dr Jackson cannot possibly provide any justification for what she said she would do when being – well, interviewed about the attack on Dr Jackson – and so the press release states that “The initial stimulus for the [2005] Act was a perception that more serious cases affecting emergency workers (such as the recent stabbing of a Glasgow GP) were effectively handled by the criminal justice system but less serious cases were sometimes overlooked - hence the focus of the Act on summary cases."

There is only one problem with this claim – it’s directly contradicted by what the Executive actually said in proposing the 2005 legislation. Then, the Executive said explicitly that it was “unlikely that the Bill will lead to a significant increase in the number of prosecutions for attacks on emergency workers” (para 16 of the Policy Memorandum), pointing out that the Lord Advocate had already issued clear instructions to procurators fiscal on dealing with such attacks.

Admittedly, the actual rationale the Executive provided was itself problematic. It said that the legislation was “intended to make clear that such attacks are entirely unacceptable and, by highlighting the issue, serve to have a deterrent effect” (para 5 of the Memorandum).

That wasn’t hugely convincing, but it is just about arguable that an Act being passed by Parliament providing for increased sentences for assaults on emergency workers might have some educative or deterrent effect. But that is not what Ms Robison proposes to do. Ms Robison has proposed to make a statutory instrument providing for anyone who assaults a GP to be liable to – well, exactly the same sentence as they are already.

But the fact that the proposal is useless is unlikely to lead to any dispute: it can hardly be said to do any harm, and even if opposition politicians have their doubts about its usefulness, being seen to oppose “protection” for healthcare workers is probably on a par with being photographed drowning kittens. All this, however, allows the Government to be seen to be doing something (even if it really isn’t), and it provides an opportunity for trade unions to be seen fighting to protect their members (even if they really aren’t). The BBC has reported the comments of Unison’s Scottish organiser, Dave Watson, who thinks that the Government has not gone far enough:

“Mr Watson said: ‘The act is called the Emergency Workers Act - not the Emergency Health Workers Act - and it was intended to cover all types of public service workers in emergency situations.’ He said the union had long argued it should have a wider application, which could include social care workers in residential and home care, education workers in schools, environmental officers tracking illegal dumping, traffic wardens and safety wardens and utility workers.”

If Ms Robison were right about her proposed statutory instrument protecting primary care staff, then Mr Watson might have a point and the law should be extended further. But she isn’t and he doesn’t and it shouldn’t.

Criminal justice reform: last-ditch protesting

Today, a whole series of provisions in the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 Act were brought into force (click here for the commencement order). They include, amongst other things, a substantial increase in summary sentencing powers (see earlier post), an important new power allowing appellate courts to excuse “procedural irregularities” (section 40) and provisions for trial of the accused in his absence if he fails to appear (section 14).

A couple of weeks ago, the president of the Glasgow Bar Association, Gerry Considine, published an article in the Sunday Times (25/11/07) headed “An attack on justice for all” (thanks to James Harrison for drawing this to my attention). The article, which is unfortunately not available online, starts off by saying:

“Over the next six months, the Scottish government proposes to introduce a series of changes to the legal system. The proposals have received little public attention, yet it is no exaggeration to say that they represent the most fundamental attack on citizens’ rights and liberties in our recent history.”

Many of the changes Mr Considine attacks are those contained in the 2007 Act, and there is a lot of sense in what he says. It would be impossible to engage with all his arguments here without writing a full-length article, but there is one key point underlying his argument, relating to the process of change:

“The proposed changes were drawn up by representatives of the Crown Office and Procurator Fiscal Service (COPFS) along with the police, the Scottish government and the Scottish Legal Aid Board (SLAB). There was not a single defence lawyer representing the rights of the accused. This is contrary to our obligations under the United Nations Convention.”

It would be quite encouraging to find a “United Nations Convention” which insisted that defence lawyers be represented on criminal justice reform committees, but unfortunately I have no idea what Convention this might be (please click here for a list of the 50 or so options, including the Convention on Registration of Objects Launched into Outer Space and the Convention on the Use of Electronic Communications in International Contracts, and submit your answers on a virtual postcard).

It is true that the McInnes Committee, whose 2004 report led to most of the present reforms and may or may not be the body Mr Considine refers to – perhaps not, as it had no SLAB representative among its members – did not include a defence lawyer among its membership. (That may not mean that none was invited to take part.) But in fairness, it must be acknowledged that it carried out a consultation exercise to which 117 responses were received, mostly on behalf of organisations (click here for a list). The Glasgow Bar Association did respond, but appears to be the only organisation of defence lawyers which did so. (The Scottish Law Agents Society also responded.)

When the resulting Bill was going through Parliament, the Justice 1 Committee received 51 written submissions (click here: some respondents made more than one submission), including ones from the Glasgow Bar Association, the Law Society of Scotland and the Faculty of Advocates, as well as one criminal defence lawyer.

What can we conclude from this? One of the great difficulties with law reform is that concerns about the reforms tend only to materialise at a late stage, often when legislation is close to being passed by Parliament. Polemical newspaper articles two weeks before legislation is due to commence, however well argued and correct they may be, have no hope whatsoever of influencing an Act passed in January 2007. If these reforms are “the most fundamental attack on citizens’ rights and liberties in our recent history”, why, when the consultations mentioned above were carried out, were there so few responses from defence agents and seemingly none from human rights and civil liberties organisations? If hardly anyone protests at the erosion of rights, liberties, and protections under the law, should we really be surprised when it happens?

Update (20/5/08): A correspondent has rightly pointed out that the Law Society representative on the McInnes Committee, Alistair Duff, was a defence solicitor. He was appointed a sheriff in 2004. The same correspondent has suggested that Mr Considine might have had the process leading to the Summary Justice System Model paper in mind. By that stage, of course, the issues of principle had been settled by legislation.

A victory for common sense (and strippers) [UPDATED AGAIN - AND AGAIN]

The offensive weapons charges against Aberdeen stripper Stuart Kennedy (see yesterday's post) were today thrown out of court after Sheriff Kenneth Stewart upheld a defence submission of no case to answer. It appears that Sheriff Stewart decided that Mr Kennedy did indeed have a "reasonable excuse" for carrying batons and a spray while dressed as a policeman, noting that the Crown had not analysed the contents of the "spray". The full story is on the BBC News website.

Update (4/12): The BBC News story mentioned earlier has since been fleshed out, and another report has appeared in the Herald. The latter report sheds some light on the decision to charge Mr Kennedy, who allegedly said that the spray he carried was for self-defence because "drunk guys get very jealous of male strippers".

More surprising is the updated BBC News report, which quotes a statement issued by the Crown:

"We are satisfied that the decision to raise proceedings in this case was entirely appropriate, and in the public interest. It is entirely and appropriately a matter for the Sheriff to determine the outcome, having seen and heard the evidence given in Court. We note the Sheriff's decision in this case. The Crown has no right of appeal against a decision by a Sheriff to uphold a no case to answer submission."

Opinions may differ on whether it was appropriate to bring the case, but - unless I am misunderstanding something here - it is remarkable to see an official statement claiming that the Crown has no right of appeal in this case. It is true that the Crown has no right of appeal against a decision of no case to answer in solemn proceedings (jury trial), but the proceedings against Mr Kennedy were brought under summary procedure (without a jury). (This is not made clear in today's reports - save to the extent that there is no mention of a jury - but a BBC News report of earlier proceedings refers to a date being fixed for an intermediate diet, something which exists only in summary procedure. In any case, it is surely unlikely that the prosecutor could have thought that the six month maximum sentence available under summary procedure would be insufficient in this case.)

In summary procedure, a decision of a sheriff to uphold a submission of no case to answer and acquit the accused may be appealed under section 175(3)(a) of the Criminal Procedure (Scotland) Act 1995. Such appeals are not uncommon, which makes the statement - assuming the quote on the BBC News website is accurate - all the more peculiar. But perhaps it is for the best.

Update (5/12, 9.30am): The BBC News report was amended again after the above post was written, removing the sentence "The Crown has no right of appeal against a decision by a Sheriff to uphold a no case to answer submission" from the Crown statement. There is no way of telling whether the original text was a Crown error or if the BBC made the double error of reporting that the Crown had no right of appeal and mistakenly including that claim as part of the quote. A report in today's Scotsman carries the same quote as is now found on the BBC website. A Press and Journal report includes a truncated version of the quote and states that the "spray" contained only coloured water and that Mr Kennedy faces further charges of impersonating a police officer. Whether those will be proceeded with given the barrage of criticism this prosecution has received (see the Scotsman report in particular) remains to be seen.

Update (5/12, 11.30am): The BBC News report seems to have been amended again since I last wrote, despite reading "Last Updated: Tuesday, 4 December 2007, 19:58 GMT". According to the latest version, the Crown "said that it would consider looking into appealing the decision", which is quite a turnaround. The BBC report now refers to a "statement issued on Tuesday", which is a strange phrase to use in a report which purports to have been written and published that same day.

[Insert lewd joke here]

Did you hear the one about the male stripper and the offensive weapon?

No, really… Stuart Kennedy, who pays his way through university in Aberdeen by working as a police stripogram called Sergeant Eros, has gone on trial accused of carrying offensive weapons in a public place, the weapons being batons and a spray. The only evidence so far appears to have come from a police officer who explained that after encountering Mr Kennedy outside the bar where he was due to perform, she followed him inside so that she and her colleague could “keep an eye on him”.

Mr Kennedy appears to have been charged under section 47 of the Criminal Law (Consolidation) (Scotland) Act 1995, which makes it an offence to carry an offensive weapon in public “without lawful authority or reasonable excuse”. He has not been charged with an impersonation offence under section 43 of the Police (Scotland) Act 1967. That may be because there is an exception to that offence where the accused was “taking part in a stage play, or music hall or circus performance”, although which of these three headings removing one's clothing in the Paramount Bar falls under is not obvious.

A stripper in costume would seem to have a good claim to a “reasonable excuse”. That concept must be interpreted with the purpose of the legislation in mind: that is, to protect the public from persons who may use such weapons to cause or threaten injury (Lister v Lees 1994 SCCR 548), and there are few reports (to this writer’s knowledge) of male strippers going berserk. In England, the Court of Appeal has accepted that wearing a police truncheon as part of fancy dress can be a reasonable excuse under the equivalent legislation applying there (Houghton v Chief Constable of Greater Manchester (1987) 84 Cr App R 319).

But it would be wrong to prejudge whatever evidence might be led when proceedings resume tomorrow. No doubt all will be revealed in due course. It is unclear whether the same applies to Mr Kennedy’s stage act.

Jury riders - and a fine mess

Posted yesterday on the Scottish courts website (but apparently issued last week), a report of some very peculiar procedures. The case is HM Advocate v Tracey [2007] HCJ 14.

What seems to have happened in this case is as follows. Mr Tracey was charged with having unlawful sexual intercourse with DM, who was under the age of thirteen, on a “number of occasions”. He pled guilty as libelled, and both he and the judge signed that plea. Thereafter, the Crown and his solicitor explained that there was a dispute as to some facts which would be relevant to sentence, particularly his knowledge of DM’s age and whether or not he had intercourse with her on a third occasion after being told of her age.

Since neither of these facts had the slightest bearing on whether Mr Tracey was guilty of the offence or not, the proper course of action might have seemed obvious: either (a) the Crown would have to accept Mr Tracey’s claims for the purposes of sentencing or (b) a proof in mitigation would have to be held, before a judge sitting without a jury. And a proof in mitigation was exactly what the advocate depute and Mr Tracey’s solicitor asked for.

But the judge, Lord Turnbull, was having none of this. He took the view that these were matters for a jury to decide – seemingly by attaching a rider to their verdict – and directed that a plea of not guilty be recorded. The case called for a continued preliminary hearing before Lady Dorrian and finally went to trial before Lord Uist. When the Crown case had closed, Mr Tracey’s agent explained that he intended to call no evidence and that he would be inviting the jury to convict his client.

Unsurprisingly, this peculiar spectacle of a “trial” appears to have caused Lord Uist some concern (not that Mr Tracey’s agent can be criticised in any way). After legal debate, he issued an opinion to the effect that (a) it was doubtful that Lord Turnbull had any power to annul Mr Tracey’s original plea once it had been signed but even if he did, (b) juries should not be invited to add riders to their verdict (meaning that the jury could do nothing useful in this case) and that (c) the matters in dispute between the Crown and defence were a matter for him – which he would determine on the evidence already led – and not for the jury. A plea of guilty was then tendered and the advocate depute moved for sentence, which will take place at a later date.

(All this is procedurally very difficult. Lord Uist takes the view that the initial guilty plea, once signed by Mr Tracey and the judge, "constituted a conviction which could be removed only by being quashed on appeal" (para 7). But if that is true, then surely Mr Tracey was not entitled to plead guilty after the trial, having already been convicted of the offence? And can a sentence still competently be imposed on the first conviction given the proceedings thereafter? Perhaps thankfully, no argument along these lines was made.)

Lord Uist reviews the authorities on jury riders in some detail, and his opinion on this neglected topic is well worth reading. In addition, it might be observed that Lord Turnbull’s initial actions seem incompatible with the case law on pleas in mitigation. In that regard, the appeal court has said that an accused is, in mitigation, entitled to deny any statements made by the Crown unless his denial is inconsistent with his plea of guilty or is manifestly false given other admissions which he has made (Galloway v Adair 1947 JC 7). Mr Tracey’s claims would not have come close to falling foul of that rule.

Update (11/01): Mr Tracey was today sentenced to 21 months' imprisonment and placed on the sex offenders register. See this post.

Short-term sentences and short-term problems

From the BBC News website today, a report of a sheriff livid at not being able to impose a longer custodial sentence. Sheriff Liddle sentenced two youths to 72 days in custody for an unprovoked attack on a stranger, remarking:

"You two are young thugs, nothing more, nothing less. I tell you this, right here and now, you are lucky this charge was not brought on indictment, because if it had been that would have allowed me to pass the custodial sentence this case deserves. I can't because you are first offenders and it is on summary complaint. The maximum I can sentence you to is three months, which is woefully inadequate. Worse than that, I can't even do that, because you are entitled to a discount for the early plea."

They were lucky in more ways than one. Thirteen days from today, on the 10th of December, the sentencing powers of sheriffs in summary cases are to increase to twelve months’ imprisonment (click here for the order implementing the relevant section (43) of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007). Had proceedings against these accused been taken at a later date, matters could have been rather different.

“Retrospective” use of these sentencing powers would not seem to be contrary to the ECHR. Although article 7 prevents courts from imposing “a heavier penalty… than the one that was applicable at the time the criminal offence was committed”, that does not seem to be relevant here unless the crime concerned is one which cannot be prosecuted on indictment: if it is, penalties of 12 months (or more) would always have been “applicable”.

But full retrospectivity would probably have led to all sorts of distortions and difficult calculations about how and when to prosecute cases and whether to tender or accept pleas – and no doubt, appeals from aggrieved persons sentenced just after the 10th of next month. Accordingly, the implementing order makes transitional provisions (see article 12): the increased sentencing powers are only to be available in cases where a first calling took place on or after the 10th, or there has been no first calling but a warrant was granted on or after that date. All is not lost to armchair commentators who look for trouble, however: interesting questions may arise in respect of any proceedings which are commenced before the 10th but abandoned and restarted de novo at a later date.

Trial within a reasonable time: a subtle shift?

One of the guarantees under article 6 of the ECHR – which led to rather more litigation than Scots lawyers expected prior to the Scotland Act 1998 – is the right to trial within a reasonable time. That right runs, according to the European Court, from the time at which the person is “charged”. A charge, for these purposes, has been defined as “the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence” (Eckle v Federal Republic of Germany (1983) 5 EHRR 1, at para 73).

In practice, the Crown has tended to accept that for ECHR purposes, a “charge” occurs when the police put an allegation to a suspect while he is being interviewed (see, e.g., Dyer v Watson [2002] UKPC D1, at para 96 per Lord Hope of Craighead). That concession, arguably, goes further than is required by the ECHR (see Attorney-General’s Reference (No 2 of 2001) [2003] UKHL 68), and the opinion issued in Burns v HM Advocate [2007] HCJAC 66 last Thursday casts some further doubt on it.

In Burns, the appellant was initially interviewed by police officers in England, and the case papers were subsequently sent to Strathclyde police. The appeal court was not prepared to entertain the suggestion that the article 6(1) clock had started to run when allegations were put to him during his interview in England. Other considerations aside, the police officers could not be regarded as the “competent authority” (although the court did acknowledge that the position might be different had the English police been acting at the request of Scottish officers).

What is interesting is that the court does not seem prepared to endorse the concession which has been previously made by the Crown as to the starting point for the article 6(1) guarantee. Counsel for the appellant submitted that “[h]ad what was said to the appellant by Metropolitan Police officers in February 2003 been said to him by officers of Strathclyde Police at that time, it was clear that he would then have received official notification for the purposes of the Convention” (see para 6). But the Lord Justice-General avoids endorsing this claim, saying only (at para 10):

“it has been accepted both in Scotland and in England and Wales that that initiation can take place before the formal commencement of criminal proceedings by the public prosecutor. In Scotland, the formal charging, in the domestic sense, of a suspect by a Scottish police officer will, ordinarily at least, constitute an official notification given by the competent authority of an allegation that the individual has committed a criminal offence.”

Does this mean that the prior concession was wrong? The difference is important: in Dyer v Watson, for example, the Crown conceded that the article 6(1) clock started to tick for Watson and Burrows when they were interviewed on the 28 January 1999. But they were not charged by the police on that occasion, and the next alternative date which might be regarded as the date of a “charge” would seem to be April 2000 when proceedings were commenced by way of summary complaint. If that was the starting date, the article 6 arguments they made a matter of weeks thereafter (which succeeded before the High Court but were later overturned by the Judicial Committee) would never have got off the ground.

It would be dangerous to read too much into what is at most, an obiter omission (if such a thing exists) – but the point may arise again before long.

Some Friday miscellanea

When this blog started, one concern was that there might not be enough newsworthy criminal “events” to keep it going. Instead, an unexpected blizzard of decisions and announcements has resulted in far more posts than I expected. Things may have quietened down for a bit (famous last words...), so here’s a few points that were omitted from recent posts to keep their length manageable and in an attempt to avoid boring readers:

(a) So long to reforming criminal law defences?

The new projects handed to the Scottish Law Commission (see previous post) probably mean that the Commission’s proposed reform of provocation, self-defence, coercion and necessity (see pp22-23 of the Seventh Programme of Law Reform) will be left on the back burner. That may be no great loss, however, as the case for undertaking that reform is obscure. In its Seventh Programme, the Commission said that:

“The main impetus for our review comes from the state of the current law on provocation. In Drury v HM Advocate [2001 SLT 1013] the court accepted not only that the law required reform and clarification but also that legislation was the best mechanism for changing the law.”

But it is difficult to find any basis for that claim in Drury. All that happened there was that two of the five judges said that if there were to be a major reform of the law of provocation, that would be a matter for Parliament and not the court (see Lord Nimmo Smith at para 9 and Lord Mackay of Drumadoon at para 3). No views seem to have been expressed on whether reform was actually necessary. It is true that, as the Commission notes, the decision in Drury is controversial – and I am flattered to be one of a number of writers cited in support of that claim – but critics of Drury have been primarily concerned about the definition of murder offered in that case rather than the actual rules of provocation set out there. (The High Court has since made a start on tidying up some of the problems left by Drury, in Gillon v HM Advocate 2007 JC 24.)

(b) The slow wheels of justice

The latest temporary sheriffs case, Dickson v HM Advocate; McNaughton v HM Advocate [2007] HCJAC 65 (see earlier post) has taken an extraordinary length of time to come to a conclusion given that the convictions occurred in 1999. Originally, three appeals on the point were associated together, but the appellant in one case died before the current decision. (It has been possible since the Crime and Punishment (Scotland) Act 1997 for appeals to be continued posthumously, but that was not done here.)

Dickson abandoned his appeal against conviction (but not against sentence) in 2005. Why this happened is not clear, but if he was under 18 at the time of the conviction – his age is not specified – then his conviction would have become spent in 2004 (in accordance with the Rehabilitation of Offenders Act 1974). His sentence, however, has not been served in full, because he was granted interim liberation as far back as July 1999. The idea that someone could be returned to jail to serve out a sentence for a spent conviction seems at least peculiar (so much for the theory of rehabilitation), but there appears to be nothing to prevent it. In the opinions issued last Thursday, the appeal court made no order as regards that sentence.

(c) English cases as precedent in the Scottish courts

In Dickson v HM Advocate, one argument advanced by Dickson and McNaughton was that the Human Rights Act 1998 should be given retrospective effect, a proposition which was rejected initially by the House of Lords in R v Lambert [2002] 2 AC 545. Subsequent decisions of that court have cast some doubt on the correctness of Lambert but have consistently taken the view that it should be followed for reasons of judicial precedent.

Lord Hamilton, in delivering the leading opinion of the Dickson court, is not prepared to expressly endorse R v Lambert as correct. Instead, he takes the view that, although not binding on the High Court, it should be followed because (a) there are “respectable arguments” in its support and (b) it would be undesirable for the Scottish and English courts to interpret the Human Rights Act 1998 differently. In the circumstances, he regards a “fresh interpretative exercise” as inappropriate (see para 27).

While that position is attractive, it has the curious – and somewhat troubling – result that a court unconstrained by binding precedent seems to have declined to rule directly on a point of law which was argued before it and was crucial to the determination of the case. Here, the High Court is not in the same position as the House of Lords in the post-Lambert cases on retrospectivity, because that court treats prior decisions of its own as “normally binding”: Practice Statement (Judicial Precedent) [1966] 1 WLR 1234. By contrast, the High Court’s obligation is not to treat such decisions as “normally binding”, but instead to give them “great respect” (see Dickson, at para 27).

Law Commission: new criminal justice project

Earlier today, the Scottish Government announced that it has asked the Scottish Law Commission to carry out a “series of studies… aimed at ensuring an appropriate balance between the rights of the accused and the ability of the Crown to prosecute in the public interest”. The Commission has been asked to look at the following issues:

• Judicial rulings that can bring a solemn case to an end without the verdict of a jury, and rights of appeal against such
• The principle of double jeopardy, and whether there should be exceptions to it
• Admissibility of evidence of bad character or of previous convictions, and of similar fact evidence
• The Moorov doctrine

This may mark a change in the relationship between the Commission and the Scottish Government regarding criminal law reform. In the last five years, the Commission has published two major reports on criminal law (on the age of criminal responsibility in 2002 and insanity and diminished responsibility in 2004), neither of which has resulted in legislation.

By contrast, the Government has announced that there will be a Rape and Sexual Offences Bill next year even though the Commission’s report on that topic has not yet been published, and the Government seems determined to press ahead even more swiftly in this case.

The timescale proposed for the new project is unusually short: a report on judicial rulings and appeal rights is expected by the summer of next year. By comparison, the Report on Insanity and Diminished Responsibility was published in July 2004 after a reference from the Scottish Ministers in September 2001, while the Report on Age of Criminal Responsibility was published in January 2002 following a reference in October 2000.

A mere matter of months (bear in mind that the Commission still has not finalised its report on rape and sexual offences) would be a remarkably tight timescale for a discussion paper, let alone a full report, assuming that is what the Government’s statement means. If Professor Maher, whose term of office expires in August 2008, was hoping for a period of some respite after completing the lengthy and complex rape and sexual offences report, it seems he likely to be disappointed.

If a full report is intended, then it is difficult to see how this can be achieved while maintaining the Commission’s normal full and careful approach to law reform. The previous Executive tried to do law reform quickly via its Expert Group on Corporate Homicide (which met a grand total of five times in as many months before reporting). The report produced by that Group, which was nowhere close to an adequate basis for legislation, should be a warning to anyone who believes that high-quality law reform can be carried out swiftly.

In that case, the surprising decision that corporate homicide was really, after all, a reserved matter allowed the Executive to play a get out of jail free card and piggyback onto proposed English legislation rather than wrestle with the problems left by the Expert Group’s unsatisfactory report. The Commission, of course, is a very different body and may be better able to adjust its workings and resources accordingly - but if not, there will be no such card available this time round.

Update (22/11): Readers may be interested in a post added today to Scots Law News, which makes a similar, but more detailed, point about the timescale proposed for this project.

Temporary sheriffs: what were we worried about?

Over eight years ago, on the 11^th November 1999, the appeal court ruled that proceedings before temporary sheriffs were incompatible with article 6 of the European Convention on Human Rights – and, in turn, with the Scotland Act 1998 (Starrs v Ruxton 2000 JC 208). The far-reaching consequences of that decision need not be rehearsed here.

The issue rumbles on, however, and last Thursday, yet another decision on temporary sheriffs was issued by the appeal court. The case is Dickson v HM Advocate; McNaughton v HM Advocate [2007] HCJAC 65, a decision of a Full Bench. Dickson and McNaughton were both convicted following proceedings before temporary sheriffs in 1999, but before the Scotland Act 1998 came into force.

Instead of relying on that statute, they advanced two arguments. These were, first, that the Human Rights Act 1998 should be given retrospective effect (a proposition already rejected in the English courts, but on which some doubt has been cast since) and secondly, that the proceedings against them were vitiated because of the common law requirement of independence and impartiality.

Both of these arguments are rejected in the leading opinion of the Lord Justice-General, and his treatment of the first raises some interesting questions about the proper approach of the Scottish courts to decisions of the House of Lords as precedent.

More significant, however, is the alternative reason the court offers for refusing the appeals, which is set out in Lord Macfadyen’s opinion. Under section 6(2) of the Human Rights Act 1998, the general rule that it is “unlawful for a public authority to act in a way which is incompatible with a Convention right” does not apply if the authority “could not have acted differently” because of primary legislation (section 6(2)(a)), or if the authority was “acting so as to give effect to or enforce” primary legislation which was incompatible with the Convention and could not be read so as to make it compatible (section 6(2)(b)).

Where one of these two “defences” is available, the rule that the Lord Advocate has no power to do an act incompatible with Convention rights is also disapplied (section 57(3) of the Scotland Act 1998).

An argument based on section 6(2)(a) failed in Starrs v Ruxton, on the basis that there was no piece of primary legislation which required the procurator fiscal to proceed with the trial in that case. Subsequently, an argument based on section 6(2)(b) failed in Millar v Dickson 2002 SC (PC) 30, where Lord Clyde (at para 84) said it was “too strained a construction… to say that proceeding with a case before a temporary sheriff is giving effect to the power to appoint temporary sheriffs”.

But, according to Lord Macfadyen, the problem was simply that the Crown advanced the wrong argument each time. Proceeding before a temporary sheriff was “giving effect” to the statutory provision conferring criminal jurisdiction on such sheriffs (not the provisions regarding their appointment, which had been founded on in Millar v Dickson). Accordingly, such proceedings were not unlawful in terms of section 6 of the Human Rights Act 1998.

And that, in turn, must mean that proceeding before temporary sheriffs was never actually outwith the Lord Advocate's powers in terms of section 57 of the Scotland Act 1998. The logic of this position is attractive – but it does seem to mean that much of Starrs v Ruxton onwards was a fuss about nothing. (This doesn't mean, of course, that temporary sheriffs were actually compatible with the ECHR, only that the changes necessitated by the Convention could have been brought about in a much more orderly fashion.)

Oops.

Cross-border jurisdiction

Yesterday, Peter Tobin appeared in Linlithgow Sheriff Court court charged with the murder of Vicky Hamilton, who disappeared in 1991 (a report is on the BBC News website). While Vicky Hamilton was last seen in Scotland, the court proceedings follow the discovery of her body at a house in Kent, meaning that two different jurisdictions are, in some form at least, involved in the case.

By statute, the Scottish courts have jurisdiction over homicides committed by British subjects outside the United Kingdom (Criminal Procedure (Scotland) Act 1995, s 11(1)). However, that provision does not give them jurisdiction over homicides committed in other parts of the United Kingdom. The position is similar in England, where statute also provides for extra-territorial jurisdiction over British subjects but no such jurisdiction in respect of other parts of the UK (Offences Against the Person Act 1861, s 9).

The cross-border problems resulting from these rather unsatisfactory statutory rules have been discussed extensively by Michael Hirst (see, amongst other publications, his book Jurisdiction and the Ambit of the Criminal Law (2003), 227-230). As Hirst notes, the issue seems to have been ignored in Robert Black’s 1994 trial, in Newcastle, for the murder of three girls. Black was a delivery driver working between London and Scotland. Two of his victims had been abducted in Scotland, and it was unclear where they had died. For whatever reason, the defence did not argue the jurisdictional point and Black was convicted of all three murders.

Whether the issue is actually a live one in respect of further proceedings in Peter Tobin’s case will depend on the evidence available to the Crown, which is not something on which it would be appropriate to speculate. If the matter does become the subject of argument (and again depending on the terms of any indictment) some reliance may be placed on Laird v HM Advocate 1985 JC 37, where the result of a fraudulent scheme (the payment of money) took place in England. The appeal court said that if steps which were required to bring that fraudulent plan to fruition and played a material part in the operation took place in Scotland, the Scottish courts would have jurisdiction. While the court was concerned only with fraud, there is no obvious reason why this reasoning should not be of broader application.

From bicycles to mannequins

Earlier today, Robert Stewart, who had the dubious distinction of being the subject of the first item on this blog, was sentenced to three years on probation for committing a breach of the peace by having sex with a bicycle in a hostel room. A report is available on the BBC News website.

As a postscript, it may be noted that judicial consideration of such activities is not peculiar to Scotland. Last week, in the case of State v Plenty Horse 2007 SD 114, the Supreme Court of South Dakota had to decide whether a man who had sex with a mannequin in an empty room (empty until the security guard entered, that is) was guilty of indecent exposure. The answer was no: those who want to know why can download a six-page PDF opinion from the South Dakota Unified Judicial System website.

Murder: no safety in numbers

The High Court’s opinion in HM Advocate v Purcell [2007] HCJ 13 has been issued today. This important decision on the law of murder follows a no case to answer submission made by counsel for Mr Purcell, who was accused of having committed murder by driving a car so recklessly that he hit and killed a young boy.

In an unusual move, the submission was dealt with by a bench of three judges. It has been suggested elsewhere that this might have been linked to the furore which followed the recent decision of Lord Clarke, sitting alone, to uphold a no case to answer submission in the World’s End case (see Scots Law News # 687).

The court’s opinion was published earlier today. In a careful review of the authorities, Lord Eassie resolves what might have been seen as the one major outstanding question on the mens rea of murder in Scots law: can a person be said to be “wickedly reckless” if they had no intention even to cause physical injury to the victim?

As a measure of the uncertainty surrounding this question, it might be noted that conflicting views are expressed in Gordon’s Criminal Law on this point (compare paras 7-18 and 23-17), while the two standard student texts also take diametrically opposed views: Jones and Christie, in Criminal Law, take the view that an intention to cause physical injury is required, while McCall Smith and Sheldon, in Scots Criminal Law, take the view that it is not required.

Both these pairs of authors, remarkably, cite Hume as their authority for their differing conclusions. In this writer’s view, it is Jones and Christie who read Hume correctly, and that accords with the conclusion reached by the Purcell court, which upheld the submission of no case to answer. (Thereafter, Mr Purcell pled guilty to culpable homicide and was sentenced to 12 years’ imprisonment.)

Some observations remain, however, which have a bearing on the procedure adopted in this case. The most important is that no reference was made to Brennan v HM Advocate 1977 JC 38. Brennan is commonly thought of simply as a decision on the defence of voluntary intoxication (or, rather, the lack of such a defence). However, much of the court’s decision actually turned on the mens rea of murder – and as a decision of seven judges, it deserves to be taken seriously on this point.

Brennan appears to have decided that if a person voluntarily becomes so intoxicated so as to suffer a “total alienation of reason”, and thus incapable of forming any mens rea at all, they can nevertheless be convicted of murder. And the reason for this outcome? Becoming grossly intoxicated itself demonstrates wicked recklessness. (See Brennan, at 50-51 and Jones and Christie, Criminal Law (3rd edn 2003), paras 8-60 and 8-61.) If wicked recklessness can be demonstrated in this way, it is difficult to accept the conclusion of the Purcell court.

Importantly, it is possible to interpret Brennan differently. Nevertheless, it is disappointing that the point is not addressed in the Purcell court’s opinion, and equally that the court did not refer (and presumably was not itself referred) to para 7-18 of Gordon’s Criminal Law.

This demonstrates the limitations of the procedure adopted by the Purcell court. Appellate courts are likely to produce better decisions not principally because of the larger number of judges that sit on them (although that may help), but because such courts have the benefit of being able to revisit an earlier decision and refine the arguments and reasoning presented there.

Those who can examine someone else’s reasoning, build on it and criticise it, have a rather easier job than those who addressed the question before they did, a point which should not be lost on academic commentators. Convening larger benches in the middle of a trial, with all the time constraints that entails, creates no such advantage and is not a substitute for normal procedures. As Lord Eassie says in his opinion (at para 19), it is regrettable that the point of law before the court was not raised as a preliminary matter before the trial had started.

Update (29/3/08): Regarding the above comments about Brennan, see now this more recent post about voluntary intoxication as a defence to rape.