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 (The opinion was issued some months ago, but for obvious reasons could not be published at the time.)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.