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?