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.)

Splitting the difference

The draft Criminal Procedure (Scotland) Act 1995 Fixed Penalty Order 2008 was published yesterday (thanks to Scott Wortley for drawing this to my attention). As it stands, it would, with effect from the 10th March 2008, increase the maximum fiscal fine from £100 to £300.

This follows on from the recommendations of the McInnes Committee, which recommended that either (a) the maximum level be doubled to £200, or (b) that a “more radical approach” be taken and the limit raised to £500. (See paras 11.35-11.42 of the Committee’s report.)

Corporate homicide and individual liability

Last Friday, there were further newspaper reports about pressure for corporate homicide legislation to provide for company directors to be held personally responsible for workplace deaths – something which is not provided for by the Corporate Manslaughter and Corporate Homicide Act 2007. From the Herald:

“Grahame Smith, general secretary of the Scottish TUC, said there was "deep disappointment" the UK legislation would not hold individual managers to account. Labour MSP Karen Gillon introduced her own members' bill on corporate killing, but withdrew it after the UK Government brought forward its own plans. But she said she was prepared to reintroduce it after the £400,000 fines handed down to ICL Plastics and ICL Tech in the case of the Stockline factory explosion which killed 33 people.”

If the view taken prior to the 2007 Act – that the matter was a reserved one and so the Scottish Parliament had no power to legislate – is correct, then it is difficult to see how Ms Gillon’s bill being reintroduced could affect matters (unless, of course, the fact that we now have an SNP administration in some way affects the official view on which matters are reserved and which are devolved).

On the issue of principle, the reference to Stockline is particularly significant, although it is not new. Families Against Corporate Killing, whose campaign seems to have prompted the most recent reports, issued a statement last September, again invoking Stockline and asserting “the urgency of implementing strong deterrent legislation in order to save lives”.

It is strange to see Stockline repeatedly prayed in aid of the case for individual liability, because it demonstrates the weakness of the deterrent argument. The chief executive and another director of the company died in the blast. News reports at the time indicated that another director had been seriously injured and that the son of a fourth was pulled from the factory by firefighters. (See this Scotsman report.)

There may be good reasons for imposing criminal penalties on individual directors following workplace fatalities. But the case for individual liability which is being made at present seems to rest on the notion that if such cases were to result in severe consequences being visited on company directors, then such incidents would be prevented by “deterrence”. It relies on a particular stereotype of such cases, in which companies are neatly divided between employees (who take all the risk) and directors (who take none). Real life is sometimes rather more complex, and the Stockline tragedy demonstrates that quite clearly.

Friday miscellanea number 5

[Please note that the date of Professor Lacey's lecture was wrongly given as the 16th (two days ago!) in the original version of this post. This has now been corrected.]

(a) Public lecture on criminal law in Edinburgh

Nicola Lacey, Professor of Criminal Law at the London School of Economics, will deliver a public lecture at the University of Edinburgh on the 29th January 2008. The lecture takes place at 5pm in Lecture Theatre 175, Old College, and is on the topic “From Moll Flanders to Tess of the D'Urbervilles: Gender, Identity and Criminalisation in Eighteenth and Nineteenth Century England".

Professor Lacey delivered both the Clarendon Lectures (on the same topic as her Edinburgh lecture) and the Hamlyn Lectures last year. Her last Hamlyn lecture is currently available as a podcast from the LSE website.

(b) Jury verdicts “under explanation”

According to the first appeal court decision of 2008, juries not only have the power to delete words from an indictment, but can also add extraneous words in the form of “explanations”.

In Fletcher v HM Advocate [2008] HCJAC 1, the accused was charged with being concerned in the supply of a controlled drug, the locus being specified in the indictment as “at East Car Park, Low Causeway, Culross; the public car park at Low Valleyfield; 52 Chapel Place, High Valleyfield; 67 Chapel Street, High Valleyfield; 6 Valleyfield Avenue, High Valleyfield; 23 Pentland Terrace, High Valleyfield; all Fife and elsewhere”. (Two other addresses in Fife had been included in the list but deleted on the motion of the Crown.)

When the jury returned their verdict of guilty, the foreman was asked if they had any amendments to make, and replied: “The verdict applies to 26th May at Bourtrees Farm services.” After discussion, it was agreed that the jury were to be understood as deleting references to the other places named in the charge, and the verdict was recorded as “The Jury by a majority find the accused Brian Paul Fletcher guilty on charge one (as previously amended) on 26 May 2004 at Bourtrees Farm Services.”

On appeal, counsel for Mr Fletcher objected that the verdict was incompetent, because the jury could not add words to a libel and so it did not specify a location within the jurisdiction of the court. The appeal court rejected this argument, saying that, given the words “and elsewhere” in the charge, it was open to the jury to return “a verdict of guilty under deletion of the specifically named locations but with an explanation as to what place or places elsewhere their verdict related. That in substance is what the jury did in the present case.” (para 8)

The court’s suggestion that juries can return verdicts “under explanation” may be contrasted with the hostility to riders evidenced by HM Advocate v Tracey [2007] HCJ 14 (see earlier post), but the two cases are obviously very different in nature. (Incidentally, if anyone has any idea where "Bourtrees Farm Services" actually is - a Google search for the name throws up no results - feel free to leave a note in the comments section.)

(c) An unusual confession

Finally, not a Scottish case, but one which is surely worth a mention: David Henton is currently standing trial for the murder of his long-term partner in Swansea. The main evidence against him is exceptional: apparently he confessed to his cats. (See, amongst other sources, the BBC News website and the Telegraph.) Sadly, there is no indication that the cats themselves will be asked to give evidence.

"Protecting" doctors, again (and more besides)

An earlier post on this blog noted the Government’s intention to extend the Emergency Workers (Scotland) Act 2005 to cover GPs and other primary health care staff. Yesterday, in line with that proposal, the Justice Committee approved the draft Emergency Workers (Scotland) Act 2005 (Modification) Order 2008. For the Official Report of the Committee’s proceedings, click here.

As predicted earlier, the proposed change did not meet with opposition. Instead, there was much discussion about the availability of statistics of assaults on emergency workers, although it is not clear to what use these could have been put or how they could have affected the Committee’s recommendation. A couple of features of the discussion are of note, however:

First, the Minister for Public Health, Shona Robison, used statistics to argue that the 2005 Act has been a success, as follows:

“I will share some information on the success that has been achieved so far. According to the most recent figures, 1,256 charges have been laid under the 2005 act, of which 1,008 have led to prosecution and, thus far, 594 convictions. A further 218 cases are on-going. Seventy-five per cent of cases that have led to prosecution have resulted in convictions, which is a very high number indeed. I suggest that that shows the success of the act.” (col 469)

Quite apart from the fact that we (inevitably) have no pre-Act figures to draw comparisons with, it is difficult to see how this shows “success”. (Apart from anything else, we have no idea what the test of “success” is – what figures would constitute failure?) But prosecutions under the 2005 Act are necessarily summary proceedings, where over 90% of cases are concluded by way of a guilty plea without even proceeding to trial. (See F Leverick, ‘Plea and confession bargaining in Scotland’ (2006) 10(3) EJCL, at 17.) Against that background, describing a seventy-five per cent conviction rate as “a very high number indeed” makes little sense.

Secondly, committee members expressed concern that the “protection” offered by the 2005 Act did not extend more widely. (Optometry Scotland had made a formal submission in respect of optometrists and dispensing opticians, for which see the Committee papers, J/S3/08/1/3). The Minister’s response was to say that further extension would require primary legislation, and that her “door was open” in this regard, although she was "not minded" at present that this was necessary.

This drive to extend the “protection” offered by such legislation – even when it is doubtful whether any such effect exists – is well illustrated by another announcement yesterday, when the Government said that it would support Patrick Harvie MSP’s proposal for a Sentencing of Offences Aggravated by Prejudice (Scotland) Bill (see this press release, and click here for more detail on the original proposal). The proposed bill would “require the aggravation of an offence by prejudice on grounds of disability, sexual orientation or transgender identity to be taken into account in sentencing”, as racial and religious prejudice already are.

The proposal seems to have sufficient support to make it into legislation, but was criticised by Bill Aitken as the Conservative party justice spokesman, who said “In Scotland, we pride ourselves in the fact that we are all equal in the eyes of the law but some it now seems are more equal than others, which cannot be right” (see this BBC News report). One correspondent in the lively debate on Brian Taylor’s blog remarked caustically that Mr Aitken was indeed right in saying that “some people are more equal than others”, “and as a white, heterosexual, Western male you should know and benefit from that more than most”.

(It was not, incidentally, a good day for Mr Aitken: as the Justice Committee’s convenor, he concluded the discussion on the modification order by arguing that the maximum sentence under the 2005 Act should be increased from nine months to twelve, seemingly forgetting that he had made the same objection at the outset of the discussion and that the Minister had told him that this had already happened.)

Oh, ye cannae fling hamsters oot the third floor o' a flat [UPDATED]

According to the BBC News website yesterday, a man by the name of Andrew Thompson is standing trial in Dumfries Sheriff Court, the case against him being that he "went "berserk" in a third floor flat and recklessly threw a hamster in a cage and other items out of the window".

The precise charges against Mr Thompson are not clear from the report, but it does not seem that any specific charge has been laid in respect of the hamster. Instead, the charge presumably relates to the risk to the public caused by throwing the cage out of the window (the hamster's presence being, strictly speaking, irrelevant). This is an oddity of animal protection legislation. The relevant offence criminalises causing "unnecessary suffering" to animals (Animal Health and Welfare (Scotland) Act 2006, s19, replacing s1 of the Protection of Animals (Scotland) Act 1912).

Hamsters are notoriously recalcitrant when interviewed by police officers, and it is not obvious how one would assess whether the hamster had "suffered" - even, it seems, if it had not survived the fall. In Patchett v MacDougall 1983 JC 63, a man shot and killed a collie dog. The appeal court quashed his conviction for an offence under the 1912 Act, noting that although there was no doubt that he had acted "wantonly and unreasonably", it could not be established that the dog had suffered.

Lord Wheatley suggested that the accused might have been charged with malicious mischief instead. If that is correct, then vandalism - under s52 of the Criminal Law (Consolidation) (Scotland) Act 1995 - would have been an equally valid charge, but presumably his Lordship recoiled from endorsing a charge as absurd as vandalising a dog by shooting it dead.

Regardless of such questions of terminology, protecting animal welfare through property offences is an unsatisfactory solution, because such offences would be inapplicable where the accused himself owns the animal in question.

If Patchett v MacDougall suggested a defect in the 1912 legislation, it has not been remedied by the 2006 Act. Although that Act says that the offence of causing unnecessary suffering "does not apply to the destruction of an animal in an appropriate and humane manner" (s19(5)), it does not follow from this that destroying an animal in an inappropriate and inhumane manner is necessarily an offence. Nor, it seems, is throwing hamsters out of third-floor windows any different.

Update (3.25pm): The BBC News website now reports that Mr Thompson has been found guilty of a number of the charges against him (including recklessly throwing items from the flat window), but acquitted of some others. It is noted in this report that the hamster subsequently died.

Paying fines at the corner shop

In an opinion piece for the new journal Scottish Criminal Law a few months ago, I argued against certain changes being made to fiscal fines, concluding (half-jokingly) that “[c]riminal justice should require offenders to confront their wrongdoing, not merely be invoiced for it.”

This may not have been such a joke after all. Friday’s Evening News (click here) reports that the Scottish Court Service plans to allow offenders to pay fines at the corner shop, or by credit or debit card. No doubt this will be more convenient for offenders, but paying a fine is not supposed to be convenient. Coincidentally, a report in yesterday’s Sunday Herald (click here) is critical of the increasing use of non-court disposals, saying that:

“The latest figures reveal the use of warning letters and fiscal penalties to deal with low-level offences shot up from 72,000 in 2005-06 to 117,000 in 2006-07. Sara Matheson, president of the Glasgow Bar Association, said taking so many cases out of the courts posed long-term risks of re-offending. “Going to court was a disincentive to offending,” she said. "Now there is a danger of turning too many cases into paper exercises.””

Collection rates for fines are lower than anyone would like, and there are good arguments in favour of what the SCS proposes to do. But collecting fines and processing cases is not the aim of a criminal justice system – these are only means to an end. Whether measures such as these make for better prevention, deterrence and punishment of crime is a rather more difficult question to answer.

Friday miscellanea number 4 [UPDATED]

(a) Aamer Anwar, again

Mr Anwar is not having a happy time of it at the moment. Not only is he awaiting a High Court hearing regarding allegations of contempt of court (see earlier post), judicial aspersions were cast upon his credibility as a witness at Glasgow Sheriff Court yesterday. After trial, Lorraine Ferrie was acquitted of a having committed a racially aggravated breach of the peace directed against Mr Anwar and his wife. According to the BBC News website, Sheriff Coutts said:

"There were certain aspects in which the Crown witnesses Mr and Mrs Anwar were not credible… I find Miss Ferrie a reliable witness and, where her story was not consistent to that given by the Anwars, I preferred her evidence.”

(b) Backdating sentences

In Simpson v HM Advocate; Christie v HM Advocate [2007] HCJAC 76, the appeal court has given guidance on the proper practice in backdating sentences to take into account time spent in custody before trial, in accordance with section 210(1) of the Criminal Procedure (Scotland) Act 1995. The question, as the court puts it, is straightforward: if a sentence is to be backdated, “should it be to the date of committal for further examination, or to the date of committal until liberated in due course of law (full committal)?” (para 1).

The normal practice, as the court observes, is to backdate to the earlier of these two dates (committal for further examination). It would be strange if it were otherwise, as that would fail to give any recognition to a period during which the accused had been deprived of his liberty. Nevertheless, in respect of Mr Simpson and Mr Christie, a Dundee sheriff – not named in the court’s opinion – took the view that because the statutory provisions refer to time spent in custody “awaiting trial or sentence”, backdating should only go so far as the date of full committal. This result arose, in his view, because an accused committed for further examination could not be regarded as “awaiting trial”.

In a brief opinion, Lords Nimmo Smith and Abernethy confirm that the normal practice is correct and that the sheriff’s approach in these two cases was wrong. They consider the sheriff’s construction of the phrase “awaiting trial or sentence” to have been incorrect, but argue that even if it was correct backdating is nevertheless a discretionary exercise and suggest that backdating might go back beyond even the date of committal for further examination, for example where the accused spent the weekend in police custody before that date.

Lords Nimmo Smith and Abernethy say that they felt it appropriate to issue their opinion because “there has not hitherto, so far as we are aware, been a decision of this Court about the proper interpretation and application of section 210 of the 1995 Act” (para 8). It is interesting that, despite the point of law involved, they were happy to proceed with the bare quorum appropriate for an appeal against sentence and did not consider it necessary for the case to be heard by a bench of three judges: that may indicate just how little persuasion they required in respect of the appellants’ cases.

[Update (11/01)] (c) HM Advocate v Tracey

An earlier post on this blog noted the procedural mess that had arisen in the case of HM Advocate v Tracey [2007] HCJ 14, after a judge purported to reject a guilty plea tendered by Mr Tracey which had been accepted by the Crown and signed by both Mr Tracey and that same judge. Mr Tracey was today sentenced to 21 months' imprisonment and put on the sex offenders register. From the report on the BBC News website, there is no indication of any point having been taken as to the competency of the proceedings.

Post-mortem retention of body parts, nearly a century on

According to the BBC News website yesterday, a relative of the victims in one of Scotland’s most notorious murder cases has called for the return of body parts which were taken by the two pathologists in the case, Sir Sydney Smith and Harvey Littlejohn, and are held by Edinburgh University.

Patrick Higgins stood trial for the murder of his two sons in September 1913, the case against him being that he had assaulted them and thrown them into the water-filled Hopetoun Quarry. He was found guilty, was not reprieved, and was hanged on Wednesday, October 1, 1913.

His trial is of some legal significance, because the judge, Lord Johnston, told the jury that they could not consider the partial defence of diminished responsibility, which was gradually coming to be recognised as a basis for reducing murder to culpable homicide. Lord Johnston told the jury that he could “understand irresponsibility, but I cannot understand limited responsibility… I desire very humbly to enter my protest against this doctrine being accepted as part of the criminal law and practice of Scotland until the matter is more deliberately dealt with by a larger Court” (HM Advocate v Higgins (1913) 7 Adam 229, at 233).

Interestingly, Sir Sydney Smith wrote quite openly about the “body-snatching” (as he termed it) in his popular 1959 book, Mostly Murder, which sheds some light on the decision to retain specimens from the post-mortem.

This was not, it seems, the arbitrary retention of body parts which simply happened to be available to the pathologist. The bodies of Higgins’ children had been in the water for almost two years before they were found, which meant that an unusual process had taken place. As Smith later explained:

“When a body is left for a long period in water, or buried in damp ground, it undergoes a distinctive change. Human fat, which is normally semi-fluid, is gradually converted to a fat that is quite firm, like mutton suet. This is adipocere. The conversion is a slow process, but permanent when complete. We were interested from a purely medical point of view, because extensive transformations are rarely come across, and these specimens were quite exceptional.”

According to Smith, a university magazine “at the time” went so far as to describe Smith and Littlejohn’s actions in verse:

“Two bodies found in a lonely mere,
Converted into adipocere.
Harvey, when called in to see ‘em,
Said, “Just what I need for my museum.””

Despite what this might suggest, the retention was hardly open and honest. At the post-mortem in Linlithgow, Smith arranged with Littlejohn for the latter to distract the attention of the two police officers present by asking them to leave the mortuary so that he could confer with them. While they were outside, Smith packed up a substantial part of the bodies (the heads, internal organs and half of the limbs), put the remains in a coffin and screwed down the lid. Smith and Littlejohn then took the train back to Edinburgh with the body parts parcelled up and placed on the luggage rack, in a crowded carriage on a day so hot that the pair feared that the smell would give their plot away.

Although the children’s mother had died a year before them, their grandmother was still alive and gave evidence at Higgins’ trial, as did two of his sisters and his brother in law (see The Scotsman, 11 September 1913, p7). From Smith’s account, it seems that none of them would have had any reason to doubt that the coffin contained the complete remains of their relatives. In 1959, according to Smith, the specimens were still on display at the university and used to illustrate adipocere formation to students.

Interesting legal questions might well arise in this situation, but in any event they have been forestalled by a statement from the University that it will return the remains provided that the relative who has made the request (Maureen Marella) can provide proof of her relationship to the two boys and that other surviving relatives agree. (As the case involves Edinburgh University, I should point out that I have no knowledge of the request and the current circumstances beyond what has been reported by the BBC.)

Update (10/1): Today's Scottish edition of the Times includes (on page 3) a lengthy report of the story, clearly drawing - as does this blog entry - on the account of the case in Sir Sydney's book. It also quotes Tim Squires, a lecturer in forensic medicine, who points out that the specimens have never been on public display.

Reform: the swifter the better

An earlier post on this blog noted the remarkably short timescale which the Government has agreed with the Scottish Law Commission regarding its new criminal justice projects. I have just seen an article in the Times Higher Education Supplement by Fiona Hyslop, the Education Secretary, which provides some insight into the Government’s current thinking on the appropriate timescale for review projects:

“As we work to build a prosperous and sustainable economic future for our nation, I believe the time is right to consider what Scotland needs from its universities between now and 2028.

That’s the role of our Joint Future Thinking Task Force. I want this to be a short, sharp exercise that delivers results – not a talking shop or an independent inquiry that takes two years to reach a conclusion.”

(“Building on the past, looking to the future”, THES 21 December 2007. For the Government’s press release (20/12/07) announcing the creation of the taskforce, which is to meet monthly until this summer, click here.)

Disclosure in criminal proceedings

McDonald v HM Advocate [2007] HCJAC 75 is a decision in three appeals concerning the currently high-profile issue of disclosure in criminal proceedings. The substance of the appeal is important, but some asides regarding the possibility of an obligation of disclosure being placed on the defence are perhaps more significant.

The appeal turns largely on the validity of two calls in petitions for the recovery of documents. (The calls made in a petition on behalf of the third appellant were more specific and his petition was continued to consider them.) Both of these calls were in the following terms (see para 4):

"1. All material in the possession of or under the control of the Lord Advocate which ought to have been (and ought to be) disclosed in terms of his [sic] obligation under Article 6(1) when read with section 57(2) of the Scotland Act 1998.

2. Failing principals, drafts, copies or duplicates of the above whether in paper or in digital form."

These terms are remarkably broad, and the Lord Justice-General was less than complimentary about the submissions made in support of their validity, stating (at para 5) that counsel for the appellants “presented a wide-ranging and essentially unstructured submission. We endeavour to summarise it…”. Subsequently (at para 47), the Lord Justice-General states that this submission “amounted in substance to the tautological proposition that the Crown had a duty to disclose what it had a duty to disclose”, going on to say (at para 56) that this “is true but tautological and, for practical purposes, accordingly useless”.

Against that background, it is unsurprising that the appeal court declined to make the orders sought. The courts are reluctant to grant orders in terms which merely restate a general legal obligation (so, to take an example from a different context, an interdict against “defamatory statements”, with no further specification, would be illegitimately wide: Shinwell v National Sailors’ and Firemen’s Union of Great Britain 1913 2 SLT 83) and it is difficult to see what use orders in the terms proposed would have been or how it would have been possible to establish if they had been complied with.

Although the point concerned may, put this way, seem rather narrow, the case is important as reaffirming that the general test for disclosure laid down in McLeod v HM Advocate (No 2) 1998 JC 67 – that the Crown “disclose all material evidence for or against the accused" – remains the relevant overarching principle despite the recent decisions in Sinclair v HM Advocate 2005 SC (PC) 28 and Holland v HM Advocate 2005 SC (PC) 3. The current importance attached to the issue is demonstrated by the fact that the Lord Advocate appeared in person before the court.

As noted earlier, an interesting feature of the decision is the attention paid to the question of whether the defence should be required to make advance disclosure of their case, even though that issue did not arise before the court. The Lord Advocate submitted (in the words of the Lord Justice-General) that “[t]he changes in practice engendered by Holland and Sinclair also required a change in culture from the defence. The information it held should be made known to the Crown, to allow the latter's obligations to be met. This could be in the form of a letter at precognition stage.” (para 24). The Lord Justice-General goes on to say (at para 58) that “[t]here may be an advantage in an accused being required, to a greater extent than at present, to give notice of what his defence to any charges is.”

This discussion seems connected to the recent review of disclosure (click here) by Lord Coulsfield, who considered this issue and concluded (at para 7.8) that “I have not been convinced that a general requirement for a defence statement would give any significant additional benefit, to justify the additional work and cost which would be generated.” He therefore declined to recommend such a requirement.

Despite this, the Scottish Government has chosen to specifically consult on the question “Do you agree that the defence should not be required to provide a defence statement following initial disclosure by the Crown…”? (A Statutory Basis for Disclosure in Criminal Proceedings in Scotland: Proposals for Legislation… (2007), Question O). That consultation closes on the 25th January. It seems reasonable to conclude (a) that we know how Crown Office will be responding to that question and (b) that they will now be fortified by what looks like at least tentative judicial support.