Contempt, concluded

Earlier posts on this blog (see most recently this one) have noted contempt of court proceedings in respect of public comments made by the solicitor Aamer Anwar following the conviction of his client Mohammed Atif Siddique of offences under the Terrorism Act 2000 and 2006. A bench of three judges of the High Court has now decided that no contempt could be said to have been committed. The full opinion is available at this link. A few aspects of the case are worthy of note:

First, the court permitted Liberty to make submissions to the court as a third party given the “very unusual circumstances” of the case (see para 11). It is doubtful that this sets any precedent for third party intervention in criminal cases generally, given that the court appeared to rest its decision on this point on the status of contempt as an offence sui generis. Provision for such interventions more generally might require amendments to the Criminal Procedure Rules (cf Act of Sederunt (Rules of the Court of Session Amendment No. 5) (Public Interest Intervention in Judicial Review) 2000, SSI 2000 No 317).

Second, a curiosity: counsel for Mr Anwar placed some reliance on an opinion “obtained from Professor Donald Nicolson, Professor of Law at the University of Strathclyde with an expertise in professional legal ethics. His conclusion was that no clear professional or common law rules existed to render the respondent’s actions a breach of his ethical responsibilities or duties as an officer of the court” (para 24). (Strathclyde is Mr Anwar’s alma mater, but Professor Nicolson took up his post there after Mr Anwar’s graduation.) The use of such an opinion in a criminal appeal is rare if not unprecedented, and the court makes no further reference to it other than to note counsel’s reliance on it. Counsel could perhaps adopt the terms of an argument made in such an opinion, but it is difficult to see how it could have any status in itself, particularly given that the court had to decide questions of fact to reach a decision – albeit that this could be done by construing the undisputed terms of statements made by Mr Anwar rather than leading evidence.

Third, on the substantive issue, the court rejects counsel’s submission “that there could not be a contempt of court following the conclusion of the particular proceedings in question”, arguing that it is “quite possible to conceive of language which would be of such an extreme nature that it did indeed challenge or affront the authority of the court or the supremacy of the law itself, particularly perhaps where the integrity or honesty of a particular judge, or the court generally, is attacked” (para 37). It might be argued that this particular problem is sufficiently dealt with by the crime of murmuring judges (see this earlier post), of which there is no discussion.

Finally, and despite its conclusion on the possibility of contempt being committed after the conclusion of proceedings, the court goes on to conclude that Mr Anwar’s conduct could not be said to be a contempt of court. It is highly critical of his public statements, describing aspects of the press release which he issued as “a wholly inaccurate statement of the nature of the convictions recorded against the panel” (para 40), characterising aspects of his statements generally as “angry and petulant” (para 44) and concluding that the court “is entitled to expect better of those who practice before it” (para 45). However, having adopted the language of the Lord Justice-General (Emslie) in HM Advocate v Airs 1975 JC 64, describing contempt of court as “conduct that denotes wilful defiance of, or disrespect towards, the court or that wilfully challenges or affronts the authority of the court or the supremacy of the law itself”, the court concludes that this test is not met.

In reaching that conclusion, the court ignores the words “or disrespect towards” (which it quotes at para 44 but omits from its reference to Airs at para 37) without explanation. It would be one thing to find someone in contempt for disrespectful conduct in the courtroom during the course of proceedings, but there are good reasons to think that it should not be possible to commit contempt after the conclusion of proceedings by disrespect alone.

Update (25/7): Thanks to Gerald Gordon for pointing out "murmuring judges" ceased to be a statutory crime as a result of the Statute Law (Repeals) Act 1973 (repealing the Judges Act 1540). In Alexander Robertson (1870) 1 Couper 440, the judges were clear that unfounded allegations of corruption made against a judge were both criminal at common law and under the 1540 Act, but the common law charge was described as one of "slandering" rather than "murmuring" (the latter being the term used in the statute).

Jury numbers: some recent history

An earlier post on this blog noted that the Scottish Government intends to carry out a public consultation on the jury system this summer, and that the Justice Secretary has indicated that he is open to a substantial reduction in the size of Scottish criminal juries.

I am grateful to Gerald Gordon for pointing out that Scotland has, for at least one period in recent history, had juries of much smaller than the current 15. During the Second World War, section 3 of the Administration of Justice (Emergency Provisions) (Scotland) Act 1939 provided that all juries, whether civil or criminal, should consist of “seven persons of whom two shall be special jurors” (s 3(1)). At the same time, the maximum age for jury service was raised from sixty to sixty-five (s3(4)).

(“Special jurors” were persons (a) paying cess in the county, city, town, or place from which the jury was to be taken, upon £100 of valued rent; or (b) paying assessed taxes to the Crown on a house of the yearly rent of £30 sterling: see the Jury Trials (Scotland) Act 1895 and Renton and Brown’s Criminal Procedure (2nd edn by GR Thomson, 1928) 71). The distinction between special and “common” jurors was abolished by the Juries Act 1949.)

The reduction in the size of the jury did not apply to trials for treason or murder, or in any High Court case where the court, on the application of one of the parties, directed that the “gravity of the matters in issue” required a jury of fifteen.

Similar provisions were made for England and Wales under the Administration of Justice (Emergency Provisions) Act 1939, but with one important difference. English law had not yet accepted any form of majority verdict, and did not do so until the Criminal Justice Act 1967, but some provision had to be made for the Scottish practice. Section 3(2) of the Scottish Act therefore provided that:

“A jury, which in pursuance of the last foregoing subsection, consists of seven persons, shall not be entitled to return a verdict by a majority, unless five of their number are in favour of such a verdict.”

Note that this says “shall not be entitled to return a verdict”, not “shall not convict”. Applied literally, this would have introduced into Scotland the English phenomenon of juries being unable to return any sort of verdict, in which case it would logically follow that – as in England – the proceedings could not be brought to a conclusion and a fresh prosecution could be raised. That, presumably, would have been regarded as alien and unsatisfactory by Scots lawyers, and so the courts adopted the expedient solution of ignoring what the statute actually said. As Lord Fleming explained in one case:

“When the Act was put into operation, it became evident that this subsection was not very clearly worded as it did not specifically provide for the conditions under which a verdict of acquittal in a criminal case may be returned. The view was, however, taken that the section merely meant that, in the case of a verdict of guilty by a majority, the majority must be at least five to two; i.e. that five at least of the seven jurors must be in favour of a verdict of guilty, and that, if this condition is not satisfied, there must be a verdict of acquittal.” (Mackay v HM Advocate 1944 JC 153 at 156)

The question of the appropriate size of the jury was reconsidered by the Thomson Committee. In its second report, it recommended that criminal juries should be reduced to twelve in number, with seven votes required for conviction (an even split resulted in an acquittal). There was one dissent:

“Professor Gordon, however, was strongly of opinion that, whatever the size of the jury, there should be a 2:1 majority for guilty… The basis of his opinion is that a simple majority for guilty is too narrow and that an accused should not be convicted where more than one-third of the jury are not sufficiently satisfied of his guilt. The remainder of us are content to accept conviction on a majority of less than two-thirds. We consider that insistence on the weighted majority is unnecessary in view of the other safeguards which our system provides for the protection of the innocent…” (Criminal Procedure in Scotland (Second Report) (Cmnd 6218, 1975) para 51.12).

The appeal court's view of male strippers and offensive weapons

There have, of course, been two very important and high-profile appeal court decisions handed down in recent days: Fraser v HM Advocate [2008] HCJAC 26 and Mitchell v HM Advocate [2008] HCJAC 28.

More of these on this blog shortly, once I have recovered sufficiently from exam marking to read the lengthy opinions properly. But first, more on the ongoing saga of Aberdeen stripper Stuart Kennedy (see, most recently, this post). Just over two weeks ago, the appeal court published its opinion in Frame v Kennedy [2008] HCJAC 25, dismissing the Crown’s appeal against Sheriff Stewart’s decision to uphold a no case to answer submission on Mr Kennedy’s behalf.

The appeal court rejects the advocate-depute’s submission that Mr Kennedy could not be said to have a “reasonable excuse” for carrying the batons. (An appeal against the sheriff’s decision to acquit Mr Kennedy in respect of a third charge, relating to a spray containing dye, was abandoned.)

Sheriff Nicholson, who sat as a temporary judge and delivered the court’s opinion, notes a tension in the advocate depute’s argument, which seemed to attach particular weight to Mr Kennedy’s admission that he carried the spray so that he might disorientate anyone who tried to attack him (“Drunk guys get very jealous of male strippers.”) As he says, that sits uneasily with the advocate depute’s argument that the sheriff had taken an irrelevant consideration into account in concluding that there was “no evidence at all which even hints at the suggestion that [Mr Kennedy] had any intention of causing harm and injury to other persons”.

But here, the court hints at a better argument. Sheriff Nicholson, sitting as a temporary judge, says (at para 22):

“It is not clear to us why the absence of any possibility of harm being caused to others should be regarded as irrelevant while at the same time the existence of such a possibility should be prayed in aid as negativing any contention that there was a reasonable excuse for having the weapons in question.”

Note that, in its own terms, this passage is concerned only with the “possibility of harm”. While I think that the appeal court’s decision is the right one, a better argument for allowing the appeal would, I think, run as follows:

It is irrelevant whether Mr Kennedy envisaged being attacked during the course of his act. Even if Mr Kennedy does not envisage using his batons for self-defence, male strippers are at risk of being attacked by jealous men (sidenote: is this within judicial knowledge?) He might therefore, in the heat of the moment, resort to his batons if attacked regardless of his prior good intentions. Furthermore, perhaps depending on how his act is conducted (is the utility belt removed?), then other persons – who may well be drunk – could acquire his batons and use them as offensive weapons. For these reasons, it is potentially harmful to public safety for Mr Kennedy to carry batons in public and the authenticity of his costume should not be regarded as a reasonable excuse.

The court said that it did “not consider that any distinction” could be drawn between Mr Kennedy’s case and that of Houghton v Chief Constable of Greater Manchester (1987) 84 Cr App R 319, where (applying equivalent English legislation) a former police officer who dressed for a fancy dress party in uniform and carried a truncheon was held to have a “reasonable excuse”. The distinction might be this: Mr Houghton was a former police officer, dressing up as a police officer for a fancy dress party on a one-off basis. It was therefore reasonable for him to use his old truncheon, which he had to hand. It was not, by contrast, reasonable for Mr Kennedy, who dresses up as a police officer regularly, but who never had any need for real police batons, to seek out and purchase the real thing rather than imitations.

That said, I doubt these arguments are convincing. And it seems the saga is not over yet. If at first, you don’t succeed, try breach of the peace instead…

According to various news reports, Mr Kennedy was arrested at Aberdeen over the weekend, dressed as a soldier, and now faces a breach of the peace charge. According to the Edinburgh issue of the Metro yesterday (p2), he states that the police:

“…didn’t tell me anything, they just bundled me into the back of the van and took me to the station. I did nothing wrong. But the arresting sergeant told me his hands were tied. He explained a chief superintendent had put a memo out to all officers instructing them to stop and question me whenever they saw me. To me, this is harassment from a high ranking police officer.”

The notion that a breach of the peace charge is committed in circumstances such as those described in the various press reports seems almost absurd. It remains to be seen whether any further proceedings will come of this.

You just can't trust Sun headlines...

Well, actually, maybe that's not quite fair in this instance. This earlier post noted the story of Nick Cameron and Danielle Heaney, the latter of whom had said - as paraphrased in the words of a Sun headline - that 'I won't make love to bruv' after she and her half-brother, who had grown up separately from her, had been prosecuted for incest.

The story has now been picked up by ABC News in the United States, who filmed an interview with the couple in Scotland which can be watched on their website. (See also reports in the Scotsman and the Times). The reports suggest that they are living together, although it is unclear whether their relationship is sexual - the interview notes only that it would be unlawful for them to have a sexual relationship.

Interestingly, the ABC News report indicates that Heaney underwent a sterilisation operation after the birth of her first child (to a man from whom she is now divorced). Given that the two most common rationales for criminalising incest - first, that the children of incestuous unions are more likely to suffer from some kind of hereditary abnormality and second, that such relationships are frequently continuations of childhood abuse - would seem to have absolutely no application here, it does raise the question of whether criminalising (and prosecuting) relationships of this nature serves any purpose.

Peter Manuel: a further note

Further to the previous post on this blog, I have now obtained a copy of Wilson's book on Peter Manuel's trial. The following section is relevant:

'It is an appalling record for a man of thirty-one. But it is typical (except perhaps in degree) of the aggressive psychopath and there is little doubt that that is the appropriate label to hang on Manuel. It does not, however, explain matters. The causes of such a condition are as yet largely unknown and it is not yet possible to treat psychopaths, except the very young, with any real hope of success...
Before his trial, Manuel was examined by doctors, including eminent psychiatrists and neurologists, on behalf of the Crown and presumably found sane and fit to plead. The defence also had him examined, with a view to putting forward a special defence of insanity, but could not find support. They also considered putting forward a case of diminished responsibility, as explained to the jury by Lord Cameron, but were dissuaded from doing so by their client, who told them, with genuine laughter, that he "wanted nae mair o' that insanity business". It may be said that a plea of diminished responsibility, based on his being a psychopath, would not have availed him...'

(John Gray Wilson, The Trial of Peter Manuel: The Man Who Talked Too Much (1959) 230-231.)

Peter Manuel, 50 years on

An interesting report on the BBC News website today, based on claims by my former colleague Dr Richard Goldberg:

Vital information about Scotland's most notorious serial killer may have been suppressed to ensure he was hanged, a legal expert has claimed.

Peter Manuel was executed at Barlinnie prison in Glasgow in 1958 after being convicted of murdering seven people. Dr Richard Goldberg, of Aberdeen University's law school, believes evidence about Manuel's mental health was withheld from the court. He called on government archives on the case to be opened to the public…

(Click here for the full report)

The allegation of suppressing evidence is a serious one, even 50 years on. According to the BBC, Dr Goldberg has explained it as follows:

Dr Goldberg…said he believed Manuel may have escaped the gallows if the court had been told the full extent of his health problems, which included a form of epilepsy many believe can cause criminal behaviour.

He said: "I think there was considerable evidence that he was a psychopath, there was debate over whether there should be a reprieve, and in my view insufficient weight was given to that evidence and also to the fact that Manuel suffered from temporal lobe epilepsy.

At the time of Manuel’s trial, however, it was clear from the decision in Carraher v HM Advocate 1946 JC 108 that psychopathy was not a basis for a plea of diminished responsibility (which would ‘reduce’ murder to culpable homicide). It is rather more difficult to comment on the claim of temporal lobe epilepsy without further information, but there again the definition of diminished responsibility in use at the time (see HM Advocate v Savage 1923 JC 49) might have been thought to rule it out as a basis for the plea. Manuel, it seems, had been examined by medical experts both for the Crown and defence (although the position here is complicated by the fact that he chose to conduct his own defence at the trial). “Suppression” may be a possibility, but at first glance it seems more likely that medical evidence was not led simply because it was recognised that it could not affect the outcome of the trial. Whether it was taken into account in any discussions over whether Manuel should be reprieved from the death penalty is a separate question.

The BBC News report gives the impression that the trial proceedings were conducted in ignorance of Manuel’s mental health. That is not quite true: although no medical evidence was led, the trial judge (Lord Cameron) did discuss the issue in his charge to the jury. Indeed, it seems to have been widely recognised at the time that Manuel was a psychopath, and it was also recognised that this was no basis for a defence under Scots law: the issue was discussed in a 1959 book by John Gray Wilson (The Trial of Peter Manuel: The Man Who Talked Too Much). To say that “there was considerable evidence that [Manuel] was a psychopath” does not seem to be revealing anything new.

One final, rather mischievous, comment. Although many of the relevant records on Peter Manuel are not open to the public and are exempt from the provisions of the Freedom of Information (Scotland) Act 2002 – a request to see them could, in principle be made, but I have no idea whether it would succeed – the Scottish Criminal Cases Review Commission has considerable powers to obtain documents in the course of investigations, and the Commission can investigate alleged miscarriages of justice even where the person concerned is deceased. Whether the Commission would thank Dr Goldberg for suggesting that they take up Mr Manuel’s case is a question on which I express no view.

Update (30/04): The BBC News article has been fleshed out since I wrote this piece. It now indicates that Dr Goldberg has unsuccessfully requested the files, and quotes him as saying "The problem is that psychopathic personality disorder still is not a basis for a plea of diminished responsibility, unlike in England, and this remains an anomaly." That is true, but as noted above, it sits uneasily with the "suppression" thesis.

A Wednesday miscellanea

A round-up of a few recent developments, some more trivial than others. Thanks to Greg Gordon for details of one of the reports in (1).

(1) More inanimate objects

As this blog started with news of a man having sex with a bicycle, it seems only right to keep readers up to date with such practices, even belatedly. So click here for the Sun’s report of an unnamed Polish builder sacked for having sex with a hoover (apparently his “defence” that vacuuming one’s own underwear was “a common practice in Poland” failed), and here for the Telegraph’s report of an unnamed 32 year old Wiltshire man arrested for allegedly simulating sex with a lamppost.

(2) Anwar contempt hearing

On more important matters, the High Court hearing in respect of the contempt allegations against Aamer Anwar (see, most recently, this post) took place today. A report is available here on the BBC News website. It appears that the judges have made avizandum and will issue a decision in due course. Significantly, it appears that Liberty were granted permission to make submissions as ‘interveners’ (see this Scotsman report): such third-party intervention has not hitherto been a feature of Scottish criminal cases.

(3) Victim statements to be rolled out

The Scottish Government announced on Monday that the victim statement schemes – previously piloted in Ayr, Edinburgh and Kilmarnock – are to be rolled out across Scotland from April 1st 2009 (click here for the press release). It appears that the statements will be restricted to solemn procedure (not surprising given that the evaluation of the pilots found that take up was much lower in less serious cases) and that the statement will be made “after finding of guilt but before sentencing”. Quite what this means is unclear. Under the relevant statutory provisions (introduced by section 14 of the Criminal Justice (Scotland) Act 2003), victims (strictly, alleged victims) are to be afforded the opportunity to make a statement once a decision to prosecute has been taken, and not only after the accused is convicted – if this happens at all. There may be some sense in only taking statements after a “finding of guilt” (although it could lead to problems of delay in sentencing), but it would not be implementing the legislation as passed by Parliament.

Jury consultation expected

A report on the BBC News website yesterday states that the Scottish Government plans to carry out a public consultation on the jury system this summer, and that the Justice Secretary has indicated that he is open to a substantial reduction in the size of Scottish criminal juries. (Thanks to Fiona Leverick for drawing this to my attention: see also reports in the Scotsman and the Herald.)

Apparently The Firm magazine – who interviewed Mr MacAskill – “is campaigning to reduce the size of a jury in Scotland from 15 members to 11”, having noted that jury remuneration costs £4 million per year.

There is no doubt that the size of the Scottish criminal jury is large by international standards. But the other unusual feature of Scottish juries is the simple majority verdict, which it would be difficult to justify retaining if its size were reduced (indeed, it is probably difficult to justify regardless of the size of the jury). We could, with a smaller jury, find ourselves requiring fewer votes in favour of conviction than any other jury system, at the same time as allowing significant dissent to be ignored. Mr MacAskill referred to juries of as few as seven members in some jurisdictions, but would it really be appropriate to convict someone of murder on the basis of convincing only four members of the public and over the objections of another three?

And if simple majority verdicts go, the cost savings are not so obvious, because it would then be necessary to entertain the possibility of retrials where juries fail to reach verdicts, with all the extra costs involved thereby. (Alternatively, we could just enter final verdicts of acquittal where juries fail to reach verdicts, but it is doubtful that such a proposal would command much support.)

The consultation is awaited with interest. And on the subject of juries, see this recently reported exchange from a voir dire during jury selection in Ashland, Wisconsin. It’s a small town, apparently:

[Court]: Any of you have relatives employed in a law enforcement related capacity? Ms. Eaton, do you have a relative employed in the law enforcement related capacity?

[Juror] Eaton: The judge.

[Court]: I like – I like to consider myself part of law enforcement or I may be disowned. You are related to me how?

[Juror] Eaton: Your mother.

The male stripper and the offensive weapon: appeal dismissed.

Thanks to Scott Wortley and the anonymous commenter on the previous post for drawing my attention to this BBC News report indicating that the Crown's appeal in the Stuart Kennedy case has been dismissed. Apparently some confusion was caused because of a claim that Mr Kennedy's lawyers had not been notified of the hearing last week, but their absence has turned out to be neither here nor there as the court had decided to dismiss the appeal. A written opinion has not yet been issued.

The outcome is not all that surprising, particularly because in previous cases on the "reasonable excuse" question the court has approached the question as being one of whether the trial judge was entitled to take the view that the defence had been made out, rather than considering the point afresh. (See eg Hemming v Annan 1982 SCCR 432.) A case such as this seems to involve a factual judgment by the judge at first instance which an appeal court should be reluctant to interfere with. It may be, therefore, that the court has simply declined to interfere with Sheriff Stewart's decision, without going so far as to endorse Mr Kennedy's costume, but the written opinion should make this clear.

The male stripper and the offensive weapon: latest developments

Readers of this blog may remember the acquittal of police stripogram Stuart Kennedy on charges of carrying offensive weapons – batons and a spray – as part of his act (see this earlier post). The Crown appeal against that acquittal was heard yesterday, and reports in the Daily Record and the Scotsman note what seems to be the core of the Crown argument. According to the advocate depute (Brian McConnachie QC), as quoted by the Daily Record:

"For the purposes of his act, he doesn't require a real police truncheon. He is in a public place and a place where he says trouble can arise.

If it was a reasonable excuse to be carrying a weapon because it forms part of your fancy dress – or fancy undress in this case – that could put people in possession of very dangerous weapons on the street.

You could have someone going to a party as a ninja warrior with nunchaku sticks or someone dressed as a ned carrying a knife and it was part of their fancy dress. The whole purpose of the law is to stop people carrying offensive weapons in public."

A written decision will be issued in due course.

A very bad news day

Today’s Scottish edition of the Times cannot have made pleasant reading for staff at Crown Office. Half of the front page was given over to a photograph of Fiona Bauld and her son Jamie, a 19 year old with Down’s syndrome who has a mental age of around 5.

A story inside, which is available online, reports how Mr Bauld was involved in a “minor fracas” with an Asian girl, who herself has learning difficulties. Apparently he “pushed her with one hand and told her to go away” while the two of them were at college, and both of them were told off.

According to the Times report, this escalated into a newspaper notice – placed by persons unknown – asking for witnesses to a “racial assault”, an interview of Mr Bauld by two police officers, who charged him with assault and a letter from the procurator fiscal saying that there was sufficient evidence to charge him, followed by a brief letter 7½ months after the incident saying that no proceedings would be taken.

This raises all sorts of questions, particularly in relation to the police interview, about which nothing will be said here. Something else is particularly bemusing: the purpose of the letter saying that there was sufficient evidence to charge Mr Bauld. Inevitably, trying to analyse a case on the basis of newspaper reports runs the risk of being unfair to those concerned, but the following points spring to mind:

A person with a mental age of around 5 could not be put on trial, because they would be incapable of understanding the nature of the proceedings and the inaccurately named plea of insanity in bar of trial would succeed. It is true that an examination of facts could then be held under section 55 of the Criminal Procedure (Scotland) Act 1995, but none of the orders available to the court where an accused is found to have done an act constituting an offence in such proceedings (ordering detention in hospital, an interim compulsion order, a guardianship order or a supervision and treatment order) seem remotely appropriate to a case such as this one.

(At least the court would have the option of making no order - something which was not historically possible. That caused serious difficulties some years ago when a sheriff substitute felt compelled against his better judgment to commit a person with Down’s syndrome who had been accused of a minor breach of the peace to hospital, and the High Court had to avoid this absurdity on appeal by finding a technical defect in the proceedings: see Barr v Herron (1967) 32 J Crim L 113.)

The Times has now reported an apology by Crown Office [the report bears tomorrow’s date but was posted online today] for the time it took to reach a decision in the case. Interestingly, at least from the Times’ quote, there is no apology for the decisions taken. This new report sheds a little more light on proceedings:

“One of the main sticking points for the authorities was the refusal by Fiona Bauld, Jamie’s mother and full-time carer, to allow intervention by social workers. Because this box was not ticked, the case stalled. Mrs Bauld, 46, told The Times: “I refused to have anything to do with social work. We have never had anything to do with them. Jamie is Down’s syndrome – he is not a delinquent. He had done nothing wrong.””

But hold on a second. If the inevitable outcome of criminal proceedings against Mr Bauld would have been no trial, no conviction, and no order by the court (and it is difficult to see any other possibility, always acknowledging the possibility that the Times report does not reveal the full facts), then how could a prosecution possibly have been justified? And if a prosecution could not be justified, can it be even remotely legitimate for a prosecutor to hold open the possibility of charges in order to pressure someone to accept social work intervention? According to the Times, a Crown Office spokesman said:

“The family were aware that the Procurator Fiscal was exploring the possibility of dealing with this case in a way that would have provided additional support to Jamie. This did not prove to be possible and therefore no proceedings were taken.”

The reference of “a way that would have provided additional support to Jamie” surely means some alternative to prosecution. But alternatives to prosecution are just that: they are actions which can be taken when a prosecution would otherwise be in the public interest. Where an accused person refuses to accept an alternative to prosecution, the prosecution should be proceeded with. If proceeding with the prosecution in the absence of an acceptance would not be in the public interest, there can surely be no basis for proposing the alternative in the first place.

And this is only one of three appearances by Crown Office in the newspaper today. The Times also devotes attention to the Mental Welfare Commission’s scathing “Justice Denied” report on the case of Ms A, a 67 year old woman with a learning disability who appears to have been the subject of repeated assaults which have led not to criminal proceedings against her alleged assailants, but instead to subjecting Ms A to a “protective regime that effectively deprives her of much of her liberty”. The Times report is not online, but there is a BBC News story online, and a summary of the report can be downloaded from the Commission’s website. The Commission say they “believe that the responses of health, social care and criminal justice combined to deny Ms A access to justice”. Crown Office, who relied on professional advice which the report criticises, escape largely unscathed from the report, but few other agencies do. It is unfortunate, therefore, that Crown Office are the only agency quoted by the BBC when they seem to have the least explaining to do.

And alongside all that, a report stating that more action is needed on wildlife crime (but mostly, it seems, from the policing side) must have seemed like positively good news.

Defence against what?

I have received an email asking me to sign an open letter to “defend Aamer Anwar” (that is, against the contempt of court allegations against him: see this earlier post). The email comes from the Glasgow Stop The War Coalition, and the letter – first published, it appears, on the 8^th November 2007 in the Herald – is available here on the Scotland Against Criminalising Communities website. The email also links to a commentary in The Firm magazine, which is critical of the contempt proceedings against Mr Anwar.

What is interesting is the synopsis of the allegations against Mr Anwar made by the authors of that letter, and also the presentation of those allegations by The Firm magazine. The open letter states as follows:

“Following sentencing on the 23rd October, Aamer Anwar was ordered to appear at a court hearing before the Judge. He was accused of showing disrespect to the Judge, the Jury and the Court.”

The Firm chooses not to provide a synopsis of the allegations, but instead quotes directly from Lord Carloway’s note regarding Mr Anwar. The Firm’s quote looks like a summary by Lord Carloway of the allegations against Mr Anwar, but omits several of the allegations. For whatever reason, The Firm has chosen not to use ellipses (that is “…”) to indicate gaps in the quote: instead, it is presented as a single block of text. The quote is a total of 161 words, drawn from a section of Lord Carloway’s note totalling 2,162 words. A reader of The Firm would understand the allegations against Mr Anwar to be as follows:

“The statement seems to be an attack on the fairness of the trial and thus presumably an attack on the Court itself.
The essence of the problem here is that the remarks do not emanate from a former litigant or accused person or even a third party commentator. Rather they come from the agent instructed in the case.
It also seemed to be a criticism of the Court as not being an independent and objective forum for the determination of criminal charges but part of a system of unfairness and repression. Finally it seemed to be an attack on the terrorist laws themselves.”

There are a number of omissions here, but what is particularly intriguing is that neither the open letter nor The Firm’s extract note the very first concern expressed by Lord Carloway, which was that the statements made by Mr Anwar:

“…appeared, at least in part, to be: (a) untrue; and (b) misleading. For example, the opening sentence of the statement [“Mohammed Atif Siddique was found guilty of doing what millions of young people do every day, looking for answers on the internet”], which received widespread media coverage, was not true. The panel had been convicted of specific statutory offences, which did not involve looking for answers on the internet. They involved downloading, concealing and retaining material for the purposes of terrorism and creating websites for the distribution of other material intended for the same purpose. …”

This is a far more serious allegation than “disrespect”, and probably more serious than anything quoted by The Firm.

Does that mean contempt proceedings against Mr Anwar are justified? The answer is no. Courts have a power to punish contempts in order to protect the integrity of their proceedings and prevent defiance of their orders, and it is impossible to see how either of these points could be said to be in issue as a result of Mr Anwar’s public statements. As I said in this earlier post, treating such statements as contempt of court could have a dangerously chilling effect on freedom of speech. But at the same time, it is wrong to claim that Mr Anwar is being hauled before the High Court for mere “disrespect”. I would happily sign a letter defending Aamer Anwar – but only one defending him against the actual allegations made against him.

Voluntary intoxication as a defence to rape

Thanks to Findlay Stark for drawing the following case to my attention:

Marek Mierzwa stood trial at the High Court on a charge of raping a 16 year old girl with the mental abilities of a younger child. The jury acquitted him of rape, but convicted him of what appears from the BBC News report to have been an offence under section 311 of the Mental Health (Care and Treatment) (Scotland) Act 2003. (I use that rather cumbersome formulation because it’s not clear what the offence should actually be called, as the statute, unhelpfully, doesn’t give it a name. But the offence is constituted by engaging in a sexual act with or towards a mentally disordered person who does not consent or is incapable of doing so by reason of mental disorder.)

What is significant about the case is the trial judge’s explanation of the jury verdict, reported by the BBC as follows:

“Jailing him, Judge Roger Craik QC said, “The jury must have thought you were very drunk at the time of commission of this offence and were probably not fully aware of what you were doing. Presumably that is the reason for the jury finding the rape charge against you not proven.” But, added the judge, the jury obviously came to the view that Mierzwa should reasonably be expected to know the identity and nature of his victim.”

Does this make sense? Scots lawyers tend to take the view that voluntary intoxication can never be a defence to a criminal charge, a principle which flows from the decision in Brennan v HM Advocate 1977 JC 38. There are some difficulties with applying the principle in Brennan to crimes of intent (see this earlier note on HM Advocate v Purcell [2007] HCJ 13), but as the mens rea of rape requires only recklessness as to a lack of consent, the reasoning in Brennan could be much more readily applied to a case like Mr Mierzwa’s.

But, of course, this demonstrates one problem with the decision in Brennan: is recklessness really generic in nature, which can be matched up with whatever criminal actus reus the accused commits thereafter? In Ross v HM Advocate 1991 JC 210, the appeal court sought to rationalise Brennan by saying that where voluntary intoxication negated mens rea the accused would be “assumed to have intended the natural consequences of his act” (at 214 per the Lord Justice-General (Hope)).

That has problems of its own, because Lord Hope referred to situations “where the condition which has resulted in an absence of mens rea is self-induced”, which does not quite make sense. If intoxication has resulted in the accused doing something he would not have done sober, in what sense has intoxication “resulted” in the absence of mens rea, which would have been absent in any event?

But the issue is different here. The absence of consent to sexual intercourse is not a consequence of anything (it is a circumstance), so does this mean voluntary intoxication can be a defence to a charge of rape? Assuming that Scots law is to continue to take a strict approach to the unavailability of intoxication as a defence, presumably it should not be (contrary to what Mr Mierzwa’s case seems to suggest), but Ross does not explain how that result would obtain.

Perhaps the best approach would be that suggested by section 2.08(2) of the Model Penal Code (endorsed by Lord Elwyn-Jones LC in in DPP v Majewski [1977] AC 443 at 475):

"When recklessness establishes an element of the offence, if the actor, due to self-induced intoxication, is unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial."

(Incidentally, the temporary judge’s sentencing remarks give some indication of the directions which were given to the jury as to the fault requirement under section 311 of the 2004 Act, something on which the statute is itself silent.)

"Passing a bad law is a criminal act"

An article I wrote for tomorrow's Sunday Herald has just been published on their website. Unfortunately, some paragraphs have been lost in the editing process which means that an article which started out as a defence of the Scottish Law Commission's proposals to take sex between children under 16 out of the criminal law's scope - while raising some doubts about the Commission's proposed "proximity of age" defence - now looks like a self-contradictory attack on the proposals altogether.

(In addition, the Sunday Herald has taken out a few words in the first paragraph which mentioned that even teenage kissing could be a criminal offence in England and Wales under the Sexual Offences Act 2003. I suspect they might have taken them out because the claim seemed so ridiculous as to be patently incorrect, but sadly it's true. There's a good explanation available on the BBC News website.)

For the record, the article should have ended as follows:

"This is not to say that the fears of bodies like the Christian Institute can be ignored. There must be a danger that if the Commission’s proposals make it into law, then some teenagers will misinterpret the changes and believe that the age of consent has been radically lowered. That is better addressed by education than by passing unenforceable laws, but it means it is crucial that the Scottish Government considers exactly how to communicate the effect of new legislation.

And just one other thing. In proposing a defence for teenagers two years or less apart, the Commission seems to be concerned that they may not know each other’s exact birthdays. So, they suggest that the defence should be based on “whole age”. That is, if a boy of 16½ engages in sexual activity with a girl just turned 14, they would be regarded as only two years apart. But that would cause problems when the boy turned 17 and the girl was still 14 – would their ongoing sexual activity suddenly become criminal now that they were three years apart?

Ah, says the Commission, we have a solution: there will be a supplementary defence saying that sexual activity between teenagers three years apart in “whole age” will not be criminal if they had previously engaged in sexual activity while they were only two years apart. But that cannot be right. On that basis, the law would tell this hypothetical couple that, to avoid committing a crime, they were obliged to start engaging in sexual activity on the evening of the boy’s 17th birthday unless they wanted to wait six months until the girl turned 15.

It surely cannot be right that the law should encourage teenage sexual activity in this way. Of course, teenagers are hardly likely to keep a copy of the Sexual Offences (Scotland) Act on their bedside tables to guide their sexual choices, but that is hardly the point. Criminal law is supposed to be addressed to the public, and if a rule of the criminal law has to be defended on the basis that no-one other than lawyers will pay attention to it, it is a bad rule."

Prejudicial publicity: two seductive fallacies

From the BBC News website today, an interesting report of arguments presented in the Luke Mitchell appeal. Here, in a nutshell, is the issue as the BBC have summarised it:

“His defence lawyers insist the intense media coverage may have influenced jurors at his trial in Edinburgh.”

“But appeal judges were told that the coverage was 'self inflicted'.”

Both these arguments are superficially attractive, but to accept them would be to accept two fallacies. It is almost inevitable that the summary, although I have no reason to doubt its fairness, does not do justice to the arguments that have been presented in court. Because of that, what follows is not meant to be a criticism of the counsel concerned, who will have presented far more detailed and nuanced arguments than could possibly be represented in a two line summary. The news report, however, does provide an opportunity to explore the two fallacies, which have proved dangerously attractive to courts in the past. (Much of this is based on arguments made in Chalmers and Leverick, Criminal Defences and Pleas in Bar of Trial (2006), paras 18.19 and 18.22.)

(a) “Intense” does not equal “prejudicial”

The idea that “intense” media coverage is prejudicial is superficially attractive, but many shocking cases receive “intense” coverage. Surely they cannot be incapable of being tried? This clearly worried Lord Taylor CJ in the Rosemary West case, where he rejected an argument based on prejudicial publicity by saying:

“[the] question raised on behalf of the defence is whether a fair trial could be held after such intensive publicity adverse to the accused. In our view it could. To hold otherwise would mean that if allegations of murder are sufficiently horrendous so as to inevitably shock the nation, the accused cannot be tried. That would be absurd.” (R v West (Rosemary) [1996] 2 Cr App R 374, at 386)

But that is to miss the point. If X is to stand trial for a shocking series of murders, it surely cannot be “prejudicial” to say that X is suspected or accused of a shocking series of murders, no matter how “intensively” and repeatedly that statement is made. After all, provided such statements are accurate, they do no more in effect than give publicity to the indictment, itself a public document setting out the allegations which will be laid before the jury at the outset of a trial.

It would be prejudicial to say, for example, that X is suspected of other murders which are not the subject of the trial; or that X has committed other murders or other crimes; or that there are particular reasons – especially if these relate to matters which cannot be the subject of evidence in court – to believe that the allegations are true.

In other words, what matters first is not the intensity of the coverage, but its content. It is surely only if the content is prejudicial that the question of intensity becomes relevant. The problem Lord Taylor identified in R v West is illusory.

(b) Self-infliction: should we care?

The Crown appear to have argued that Mitchell’s defence team were responsible for fanning the flames of press coverage. That may be right, and there is some support in the case law for the argument that where an accused does this he can hardly complain of the consequences (see R v Savundranayagan and Walker [1968] 1 WLR 1761).

But, when properly considered, the answer to the Crown’s argument should now be “so what?” The point of an appeal based upon prejudicial publicity must be that an accused’s right to a fair trial – both at common law and under article 6(1) of the European Convention on Human Rights – has been violated (Montgomery v HM Advocate 2001 SC (PC) 1). The right to a fair trial can be waived, but waiver must be “voluntary, informed and unequivocal” (Millar v Dickson [2001] UKPC D4, at para 38 per Lord Bingham of Cornhill).

No doubt “self-inflicted” publicity could meet that test – for example, if an accused deliberately sought to frustrate his trial by engineering a prejudicial newspaper article with details of his previous convictions on the eve of trial. But outside extreme circumstances such as that, the idea that “self-inflicted” press coverage goes so far as to be a “voluntary, informed and unequivocal” waiver of the right to a fair trial must be near-impossible to sustain.

Lost in the post

For a variety of reasons, this blog has been relatively quiet over the last couple of weeks – for which, apologies. By way of an update, a brief note on PF (Dumfries) v Cotton [2008] HCJAC 8 (thanks to Findlay Stark for drawing the case to my attention).

The appeal is concerned with a narrow point. Mr Cotton was prosecuted for speeding. Under section 1(1) of the Road Traffic (Offenders) Act 1988, as amended, a person cannot be convicted of that offence (and others) unless steps are promptly taken to warn him of the possibility of prosecution, one of which is the serving of a “notice of intended prosecution”. Section 1(1A) provides as follows:

A notice required by this section to be served on any person may be served on that person -

(a) by delivering it to him;

(b) by addressing it to him and leaving it at his last known address; or

(c) by sending it by registered post, recorded delivery service or first class post addressed to him at his last known address.

(2) A notice shall be deemed for the purposes of sub-section (1)(c) above to have been served on a person if it was sent by registered post or recorded delivery service addressed to him at his last known address, notwithstanding that the notice was returned as undelivered or was for any other reason not received by him.

(3) The requirement of sub-section (1) shall in every case be deemed to have been complied with unless and until the contrary is proved.

In Mr Cotton’s case, the notice was sent by recorded delivery, and it was later established that this had been lost by the Royal Mail before delivery. The justices concluded that – on the basis of section 1(3) – this “proved” that the requirement of service had not been complied with and so acquitted Mr Cotton.

The appeal court has overturned that decision, and it is difficult to see how they could possibly have come to any other conclusion. Section 1(1A)(c) does not require receipt, and even if there were any room for doubting the point, section 1(2) makes the same point clear beyond any possible doubt.

That may seem a harsh conclusion, but it seems reasonable that fiscals should be able to rely upon registered post in such cases, and that must surely be the intended purpose of section 1(2). The consequences of a failure in the postal service are unfortunate, but it is difficult to see any actual prejudice arising as a result – and if for some reason actual prejudice did arise this could, of course, form the basis of a separate plea in bar of trial.

"I won't make love to bruv"

That was the headline which the Scottish Sun chose to give the report of the prosecution of Danielle Heaney (22) and Nicholas Cameron for incest (28). The pair, who had the same mother (but different fathers) had met only once as children and formed a sexual relationship in August 2006. A brief report is available (inaccurately headlined as “Incest Brother and Sister Jailed”) in the Daily Record online.

Until relatively recently, it was not unusual to see the argument that the state had no business criminalising incest, on the basis that if sexual activity between relations was already criminal where one was under the age of consent, and if both parties were consenting adults it was none of the law’s business (see, eg, N Morris and G Hawkins, The Honest Politician’s Guide to Crime Control (1970)).

That argument seems to have gone out of fashion, on the basis that incestuous relationships are invariably continuations of abusive relationships commenced in childhood and so should be criminalised on this basis (see, eg, J Temkin, ‘Do we need the crime of incest?’ (1991) 44 Current Legal Problems 185). This line of argument is most clearly demonstrated by the Home Office’s 2000 review of sexual offences, Setting the Boundaries, which argued for the retention of the prohibition against incest, as part of a broader offence of familial sexual abuse:

“The primary aim of the law in this area should be to protect against sexual exploitation within the family, especially young and vulnerable people.” (para 5.5.3)

“The dynamics of relationships within families change as children grow up, but patterns of domination started in childhood can continue into adult life, and significantly affect adult behaviour. In particular the issue of whether an adult child or sibling can ever truly consent to a sexual relationship with a father or brother is questionable, and the law and practice need to recognise this.” (para 5.5.4)

“The review concluded that it would not be right to seem to legitimise sexual relationships between adult family members. The dynamics and balance of power within a family require special recognition, and we were concerned to ensure that patterns of abuse established in childhood were not allowed to continue in adulthood.” (para 5.8.3)

Curiously, the Review seems to have assumed that only one party – the “instigator” – would be prosecuted in respect of incest, even though any offence would permit otherwise:

“In principle... the law should be able to deal with perpetrators of either sex. It must be for the police as investigators and the CPS as prosecutor to determine who was the instigator, and who should therefore be regarded as culpable, on the facts of each case. That decision must be informed by a full knowledge of the relationship, and the length of time it has been going on.” (para 5.8.7)

While the argument that it is necessary to retain incest to – as the Review puts it – “ensure that patterns of abuse established in childhood were not allowed to continue in adulthood” is a strong one, it should give rise to doubts about the appropriateness of a prosecution where that is demonstrably not the case. It is difficult to see how a prosecution of both parties could ever be justified on this rationale. The Review seemed to think any problems of principle arising here could be sufficiently dealt with by acknowledging them and promptly ignoring them:

“One of our guiding principles was to uphold the rights of adults to consensual sexual relationships in private, reflecting the ECHR respect for private life. Siblings or half-siblings may meet as adults, not even knowing that they are related. They are attracted and a sexual relationship develops. It is important to recognise that that relationship would only be criminal if they knew they were related. This has even formed plots in soap operas. Such cases very rarely come to the attention of the law or are prosecuted.” (para 5.8.2)

The matter has caused controversy elsewhere. A German couple comprising a brother who had been adopted and only met his sister when he was in her early 20s and she was in her late teens have had four children. The brother (seemingly not the sister) has been prosecuted and the pair were reported in March 2007 to be appealing to the Federal Constitutional Court to challenge the German prohibition on incest. A BBC News report stated that a ruling was expected in the “next few months”, but there do not appear to be any reports of an outcome online as yet.

Friday miscellanea number 6

Thanks to Scott Wortley for drawing my attention to the case and written answer canvassed in items (a) and (c).

Today’s word of the day, from Mr Duff’s initial writ in Duff v Strang, is “skaithless” (Mr Duff having asked that the defender be ordained to find caution “that the Pursuer be harmless and skaithless in his body and property”). The Dictionary of the Scots Language defines “skaith” as “damage, hurt, injury, harm, mischief”.

(a) Lawburrows in the High Court

The remedy of lawburrows – allowing a person to apply for another to find caution not to harm him, his family or property – has been described as “a method of primitive law enforcement in the absence of an effective police force and system of public prosecution” (JM Thomson, Delictual Liability, 3rd edn (2004), 5).

But as Thomson notes, “there is no doubt that the action is still technically competent”, and Duff v Strang [2008] HCJAC 4 is a recent example. The point here is a procedural one: after the sheriff held that Mr Duff’s application was incompetent and irrelevant, Mr Duff attempted to bring his decision under review in the High Court by way of stated case. In a detailed opinion, the court rejects that argument, reserving opinion on whether an appeal to the sheriff principal or the Court of Session would be competent in such a case.

(b) Top marks for sheriff’s tough love

An earlier post on this blog noted a deferral of sentence by Sheriff Foulis on Wednesday 19th December last year. Sentence on Richard Mullen, 15, described as “responsible for a crimewave in Blairgowrie” was deferred until the end of January on the condition that he did not approach or contact his father or brothers. Yesterday’s Scottish edition of the Metro reported as follows (p21):

“A one-boy crimewave has been a model citizen since a sheriff banned him from seeing his family, Perth Sheriff Court heard yesterday. Sheriff Lindsay Foulis called it ‘one small step for man’. As a reward, the ban looks set to be lifted. Richard Mullen, 16, from Blairgowrie, Perthshire, was handed the unique order after being charged with 50 crimes in just nine months.”

(c) Emergency workers, again

I have posted earlier about the extension of the Emergency Workers (Scotland) Act 2005 (see, most recently, this post). The following written Parliamentary answer was issued on Wednesday (see this link):

Margaret Curran (Glasgow Baillieston) (Lab): To ask the Scottish Executive what consultation was undertaken in relation to the extension of the Emergency Workers (Scotland) Act 2005.

Shona Robison: The extension of the Emergency Workers (Scotland) Act 2005, to cover doctors, nurses and midwives whenever they are on duty, fulfilled a manifesto commitment. Although no additional consultation was undertaken, the arguments of different stakeholders have been well rehearsed when the act was originally debated in Parliament in 2005.

The manifesto commitment was somewhat broader than suggested here. It was in the following terms:

“Those who work in the NHS do Scotland proud. They deserve the right to a safe working environment without the fear of assault. All too often they face violence and aggression. An SNP government will tackle this by extending Emergency Workers legislation to cover all NHS staff. (page 36 of the manifesto, available here as a PDF file).”

It is easy to understand why this has not (yet) been done, however: given the terms of section 8 of the Act, extending it to all NHS staff would probably not be competent by way of statutory instrument, but would instead require primary legislation. Furthermore, it is doubtful that the commitment was ever meant to be quite as broad as a literal reading would suggest: was it really intended to cover NHS staff (even lawyers, perhaps?) who do not come into contact with the public as part of their jobs?

Overlapping offences and evidence of crimes (arguably) not charged

HM Advocate v Grant [2007] HCJAC 71, decided last year but issued last week, is an interesting decision on the interrelationship between the offences of supplying and being concerned in the supply of a controlled drug. Basically, the problem seems to have been this: Ms Grant was charged with being concerned in the supply of a controlled drug (diamorphine). It appeared, however, that the Crown intended to lead evidence from three witnesses alleging actual supply of the drug.

Because supplying a controlled drug and being concerned in the supply of a controlled drug are different offences (under s4(3)(a) and s4(3)(b) of the Misuse of Drugs Act 1971 respectively), Ms Grant’s agent submitted that the evidence which the Crown proposed to lead would be inadmissible. The sheriff upheld these submissions and the Crown appealed to the High Court.

This was complicated by the fact that the point had been continued from a first diet to the trial diet before being rejected by the sheriff, and there is no provision in the Criminal Procedure (Scotland) Act 1995 for an appeal from a decision at a trial diet. The court suggested that this problem could have been avoided by appointing a further diet to decide the point, but on the basis that this would be on the same day as the trial diet. I think I have seen something similar done in the High Court by a continued preliminary hearing being scheduled for the same day as a trial diet, but this is obviously an unattractive approach unless the pre-trial issue is one which will make no difference to the trial going ahead, regardless of outcome.

The court in Grant recognises this and suggests that the potential inconvenience to jurors and witnesses makes this technique undesirable. Ultimately, the problem is almost magically resolved by the court taking the view (see para 9) that in all the circumstances a (competent) Bill of Advocation in substantively identical terms could be substituted for the (incompetent) Note of Appeal, thereby sidestepping the problem on the basis that such a Bill can extend “to the review of a decision of any court of solemn jurisdiction” (Criminal Procedure (Scotland) Act 1995, s131(1)).

On the substantive issue, the court notes that in HM Advocate v Cormack 1995 JC 133, Lord Marnoch upheld a similar submission to that made on Ms Grant’s behalf, saying that it was “most unlikely that Parliament intended section 4(3)(b) of the 1971 Act to cover the actual supply of illegal drugs”. In HM Advocate v Kiernan 2001 SCCR 129, however, Sir Gerald Gordon (sitting as a temporary judge) had said that he was “not, with respect, convinced that actual supply cannot be charged as concern in supply”.

If Sir Gerald’s speculation were correct, then it would follow that the charge against Ms Grant encompassed the acts of which the Crown witnesses concerned were going to give evidence, and the defence objection would fall away. That, in substance, is what the court holds, saying (at paras 19-20):

As was held in Kerr v HM Advocate [1986 JC 41], it is not necessary for proof of a charge brought under section 4(3)(b) that evidence should be led of an actual supply of the controlled drug. But it does not follow from thus, as a matter either of definition or of logic, that evidence of actual supply by the accused is not relevant to proof that he was concerned in supplying the controlled drug. To say that something is not essential for proof of the commission of a crime is not the same as to say that it is irrelevant to such proof and therefore that the evidence in question is inadmissible. We cannot therefore support Lord Marnoch's reasoning in HM Advocate v Cormack, and must respectfully disapprove of that decision. His Lordship may have had in mind the canon of statutory construction expressio unius exclusio alterius. But that canon is "not to be applied rigidly or without careful thought for the context: it can be particularly dangerous if applied prescriptively": Craies on Legislation, 8^th. ed., p.604.

It follows from the foregoing discussion that in our opinion the sheriff fell into error in holding that the evidence in question was inadmissible because it would serve to establish that "the accused was in fact guilty of another crime". What the Crown are offering to prove, and give notice to that effect in the charge, is that as an aspect of being concerned in the supplying of the controlled drug, the respondent made actual supplies to the three witnesses. This would constitute proof, not of another crime, but of aspects of a course of conduct amounting to a contravention of section 4(3)(b).

Breach of the peace, privacy and psychologists:further details

I have now seen a copy of the indictment in HM Advocate v Macdonald [2008] HCJAC 5 (see earlier post). It contains two charges. The relevant part of the first is as follows:

“…you having been convicted on a charge of assault with intent to rape and having assaulted an 11 year old girl… and having been sentenced to 6 years imprisonment on 16 December 2006… did on 8 May 2006 at Her Majesty's Prison, Peterhead, conduct yourself in a disorderly manner and for the purpose of causing fear and alarm to [two complainers], did state to [them] that you were a dangerous predator and that you had not been rehabilitated, that you had fantasies of a sexually violent nature and that you intended to commit a sexually violent crime such that a life sentence would be the outcome, repeatedly stare at [the first named complainer] and you did place [both complainers] in a state of fear and alarm for themselves and for the lieges and you did commit a breach of the peace.”

The second is in broadly similar terms, but relates to different statements allegedly made by Mr Macdonald on a later date.

The terms of the indictment are similar to those in two earlier cases which did not proceed beyond the sheriff court, and they are worth comparing. In HM Advocate v Duguid 2005 SCCR 465 (Sh Ct), the accused was charged with having committed a breach of the peace in the following terms:

“…having been placed on the sex offenders register for life at the Sheriff Court, Perth, on 28 May 1998 for offences of lewd and libidinous practices against young children, did conduct yourself in a disorderly manner and knowing that there was likely to be a large number of children at a fireworks display there, dress yourself in such a manner as to be easily mistaken for a steward or first aid officer, position yourself adjacent to all the public facilities there, place a police officer who was in attendance at said event, to whom you are known and who was aware of the conviction aforesaid, in a state of fear and alarm for the safety of children and the public and did commit a breach of the peace.”

In that case, Sheriff Davidson held that the facts libelled were not sufficient to constitute a breach of the peace and reserved opinion on whether the reference to the previous conviction was competent.

In HM Advocate v Murray 2007 SCCR 271 (Sh Ct), the indictment libelled that the accused had previously been convicted of a serious assault on a young boy and that he had told social workers that he would assault and murder a child. There, Sheriff Vannet held that s101(2) of the Criminal Procedure (Scotland) Act 1995 only permitted a previous conviction to be led where it was an “essential fact in the proof of the substantive charge”, such as in respect of driving while disqualified.

Crown appeals in Duguid and Greig were abandoned. The three cases taken together seem to demonstrate that the point is of considerable practical importance, making the cursory treatment of the issues by the appeal court in Mr Macdonald’s case rather surprising.

The charge against Mr MacDonald is significantly different from these earlier cases, because the indictment libels that the complainers were placed in a state of fear and alarm for themselves (something which makes the relevance of Lord Marnoch's reference to Young v Heatly clear). Although there are obvious objections to breach of the peace providing a vehicle for detaining someone purely on the basis that it is feared they might commit a crime in the future, and that might form a basis for an argument that the words “and for the lieges” are irrelevant, their excision would not be fatal to the charges against Mr Macdonald.

If the psychologists were placed in a state of fear and alarm, then it is difficult to see how the charge could be irrelevant unless either (a) it is the law that a breach of the peace cannot be committed “in private” (or something similar) – not a proposition hitherto accepted by the courts – or (b) it is the law that reasonable psychologists are made of such stern stuff that they cannot be placed in a state of fear and alarm (or alternatively, that they consent to being placed in such a state as part of their job, and that such consent negates the alleged breach of the peace). That does not seem particularly plausible.

Perhaps there is some issue of public policy here. That seems to have been key to the argument made by counsel for Mr Macdonald, and as Sir Gerald Gordon notes in his commentary on Murray, "[t]he criminal law is not intended to inhibit probationers from telling their social workers about their fantasies and/or fears about what they may do”. That must be true, although as Lord Marnoch suggests in Macdonald, this may properly be a contextual matter for the jury. No doubt it should be very difficult to commit a breach of the peace when interviewed by a psychologist or social worker, but it should not be impossible.

The question which Sheriff Vannet decided against the Crown in Murray – whether references to a previous conviction were competent in support of such a charge – is not even touched upon, and so still awaits scrutiny by the appeal court.

Breach of the peace: privacy and psychologists

Macdonald v HM Advocate [2008] HCJAC 5 is a rather peculiar opinion on breach of the peace issued in October of last year but only uploaded to the Scotcourts website yesterday. (Thanks to Gerald Gordon for altering me to the case.) Publication would seem to have been postponed because of an order under section 4(2) of the Contempt of Court Act 1981: the relevant page of the Scotcourts website indicates that one was issued the day before the date of the opinion.

The opinions are very brief and do not set out the terms of the indictment, but a Press and Journal report indicates that Mr Macdonald was alleged to have, when interviewed by two psychologists, said that he was a dangerous predator and intended to commit a sexually violent crime involving a child victim on his release from prison. The report implies that the breach of the peace charges were resorted to because of fears as to how Mr Macdonald might act on his release from a prison sentence.

By a majority, the appeal court held that the charges against Mr Macdonald were irrelevant. Lord Johnston (with whom Lord Clarke concurs) says:

“The material point is the context in which these answers were given. Whether or not, at least one of the two ladies was alarmed by the content of the answers, does not seem to us to be the material point. What seems to us to be much more important is that, and we decide this case purely on that question, that the context of the interview does not lend itself to the definitions of breach of the peace to be found in longstanding cases and rehearsed in two recent cases of Smith and Jones [Smith v Donnelly 2002 JC 65 and Jones v Carnegie 2004 JC 136] with regard to public concern.”

But what exactly does this mean? Just as it is “not the law… that a police officer is not to be regarded as a person liable to be affected by disorderly conduct” (Saltman v Allan 1988 SCCR 640, per the Lord Justice-General (Emslie)), surely it cannot be the case that it is impossible to commit a breach of the peace in this context? That seems to be the view taken by Lord Marnoch, whose dissenting opinion reads (in its entirety) as follows:

“In common with Lord Bracadale [the judge at first instance], I, for my part, would regard the arguments regarding the contextual aspect of this case as being ultimately for the jury to consider. At the same time, I do think that there are real questions arising from the fact that this offence was allegedly committed in private, and it may well be that the case of Young v Heatly 1959 JC 66, to which we referred by the Crown, will one day have to be formally reviewed by a larger court. There is nothing further I wish to say on the matter.”

It may be that a distinction can be drawn between Young v Heatly and the present case. In Young, a depute headmaster made indecent remarks and asked sexual questions to pupils in his room. A guilty verdict there might be rationalised on the basis that the remarks were substantively directed at the pupils (with all the consequences that entails in terms of alarm and fear for personal safety) in a way in which Mr Macdonald’s alleged remarks were not directed at his interviewers.

It is, of course, difficult to fully evaluate the decision without the actual terms of the indictment, which will hopefully be reported in due course. The case bears a striking similarity to HM Advocate v Murray 2007 SCCR 271 (Sh Ct) (noted at this earlier post), but there the charge was thrown out because it disclosed a prior conviction: the issue of relevancy was not discussed.

(Incidentally, the Press and Journal report mentioned earlier also includes, for no obvious reason, an attack on parole and early release from the Conservative justice spokesman, Bill Aitken and a statement by a spokesperson committing the Government to ending “automatic, unconditional release”. Mr Macdonald was serving a six year sentence – automatic early release applies only to sentences of four years or less. His release was not unconditional because of a supervision period set by the trial judge, and there is no indication that he served anything less than his full sentence – indeed, parole would have been rather peculiar given the statements he was alleged to have made. Perhaps no newspaper article on criminal law would be complete without boilerplate political statements such as these, but they seem less than helpful to a reader trying to understand the case.)