Criminal Letters

Contempt, concluded

2008-07-22T22:55:00.004+01:00

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

Jury numbers: some recent history

2008-05-22T13:54:00.008+01:00

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

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

2008-05-21T18:41:00.004+01:00

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

You just can't trust Sun headlines...

2008-05-07T16:18:00.005+01:00

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

Peter Manuel: a further note

2008-05-06T08:57:00.001+01:00

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

Peter Manuel, 50 years on

2008-04-30T10:15:00.005+01:00

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

A Wednesday miscellanea

2008-04-29T22:18:00.003+01:00

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

Jury consultation expected

2008-04-27T23:50:00.002+01:00

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.)

The male stripper and the offensive weapon: appeal dismissed.

2008-04-25T14:48:00.002+01:00

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 male stripper and the offensive weapon: latest developments

2008-04-18T17:47:00.001+01:00

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

A very bad news day

2008-04-17T23:53:00.004+01:00

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

Defence against what?

2008-04-15T20:00:00.004+01:00

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 8th November 2007 in the Herald – is available here on the Scotland Against Criminalising Communities website. The

Voluntary intoxication as a defence to rape

2008-03-29T02:23:00.002Z

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. (

"Passing a bad law is a criminal act"

2008-03-15T23:21:00.004Z

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 "

Prejudicial publicity: two seductive fallacies

2008-02-22T21:52:00.006Z

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

Lost in the post

2008-02-17T23:43:00.003Z

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

"I won't make love to bruv"

2008-02-10T12:09:00.000Z

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

Friday miscellanea number 6

2008-02-01T15:50:00.000Z

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

Overlapping offences and evidence of crimes (arguably) not charged

2008-01-31T23:45:00.000Z

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

Breach of the peace, privacy and psychologists:further details

2008-01-29T23:49:00.000Z

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

Breach of the peace: privacy and psychologists

2008-01-23T00:06:00.000Z

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

Splitting the difference

2008-01-22T00:09:00.000Z

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

Corporate homicide and individual liability

2008-01-21T23:10:00.000Z

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"

Friday miscellanea number 5

2008-01-18T09:51:00.000Z

[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

"Protecting" doctors, again (and more besides)

2008-01-16T09:52:00.000Z

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

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

2008-01-15T09:07:00.000Z

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

Paying fines at the corner shop

2008-01-14T09:34:00.000Z

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

Friday miscellanea number 4 [UPDATED]

2008-01-11T02:35:00.000Z

(a) Aamer Anwar, againMr 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

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

2008-01-10T11:49:00.000Z

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

Reform: the swifter the better

2008-01-04T10:51:00.000Z

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

Disclosure in criminal proceedings

2008-01-03T00:05:00.000Z

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

Friday miscellanea number 3

2007-12-21T00:22:00.000Z

(a) Prejudicial publicity Thanks to Scott Wortley for drawing my attention to Sinclair v HM Advocate [2007] HCJAC 27, which deals with a point raised prior to the abortive World’s End murder trial. Sinclair's counsel argued here that he could not receive a fair trial due to adverse pretrial publicity, in particular direct speculation about whether he was responsible for the World’s End

Stop and search and political posturing

2007-12-20T10:34:00.000Z

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

Reforming sexual offences

2007-12-19T00:04:00.000Z

I understand that the Scottish Law Commission's Report on Rape and Other Sexual Offences is to be published today. If so, the report should be available shortly at this link, and a news release summarising it should be available here.[Update (19/12): See now news reports in The Herald (with a separate commentary including a piece by Sandy Brindley of Rape Crisis Scotland), The Scotsman (including

It's the bicycle that makes the difference

2007-12-18T00:11:00.000Z

In the first post on this blog, about Robert Stewart’s sexual escapades with a bicycle in an Ayrshire hostel, I included a link to the case of Steven Marshall, who pled guilty to simulating sex with a Galashiels pavement after drinking while taking medication for arthritis. At the time, Sheriff Drummond deferred sentence for background reports and placed Mr Marshall on the sex offenders’

The reasonable time guarantee: a fairly honourable defeat

2007-12-17T00:20:00.000Z

Thanks to Tony Kelly for drawing my attention to Spiers v Ruddy [2007] UKPC D2, a decision of the Judicial Committee of the Privy Council issued last Wednesday. Here, the Committee has resolved the conflict between Scotland and England over the reasonable time guarantee in criminal trials. Prior to Spiers v Ruddy, the position was as follows. (For discussion, see Himsworth (2004) 8 Edin LR 255

More Friday miscellanea [UPDATED]

2007-12-14T13:11:00.000Z

(a) Drunkenness and mitigation Thanks to Scott Wortley for drawing my attention to a Parliamentary written answer from the Justice Secretary on drunkenness as a mitigating factor in sentencing two days ago. The question and answer are as follows (click here for the original record): Hugh Henry (Paisley South) (Lab): To ask the Scottish Executive whether being drunk is considered to be a

Bad news for strippers

2007-12-13T19:04:00.000Z

It is fair to say that the original decision to charge police stripogram Stuart Kennedy with possession of offensive weapons did not, after Sheriff Stewart acquitted Mr Kennedy last week (see earlier post), receive a sympathetic response in the media. Among the more entertaining of the various critical comments was the response of an anonymous retired constable in the Press and Journal. In his

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

2007-12-13T14:11:00.000Z

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

Distress as corroboration and authors as authority

2007-12-12T12:09:00.000Z

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

"Protecting" doctors (allegedly)

2007-12-11T00:05:00.000Z

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

Criminal justice reform: last-ditch protesting

2007-12-10T14:21:00.002Z

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

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

2007-12-04T16:03:00.000Z

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

[Insert lewd joke here]

2007-12-03T13:52:00.000Z

Did you hear the one about the male stripper and the offensive weapon? No, really… Stuart Kennedy, who pays his way through university in Aberdeen by working as a police stripogram called Sergeant Eros, has gone on trial accused of carrying offensive weapons in a public place, the weapons being batons and a spray. The only evidence so far appears to have come from a police officer who

Jury riders - and a fine mess

2007-11-29T10:25:00.000Z

Posted yesterday on the Scottish courts website (but apparently issued last week), a report of some very peculiar procedures. The case is HM Advocate v Tracey [2007] HCJ 14.What seems to have happened in this case is as follows. Mr Tracey was charged with having unlawful sexual intercourse with DM, who was under the age of thirteen, on a “number of occasions”. He pled guilty as libelled, and both

Short-term sentences and short-term problems

2007-11-27T23:13:00.000Z

From the BBC News website today, a report of a sheriff livid at not being able to impose a longer custodial sentence. Sheriff Liddle sentenced two youths to 72 days in custody for an unprovoked attack on a stranger, remarking:"You two are young thugs, nothing more, nothing less. I tell you this, right here and now, you are lucky this charge was not brought on indictment, because if it had been

Trial within a reasonable time: a subtle shift?

2007-11-26T20:50:00.001Z

One of the guarantees under article 6 of the ECHR – which led to rather more litigation than Scots lawyers expected prior to the Scotland Act 1998 – is the right to trial within a reasonable time. That right runs, according to the European Court, from the time at which the person is “charged”. A charge, for these purposes, has been defined as “the official notification given to an individual by

Some Friday miscellanea

2007-11-23T12:35:00.000Z

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

Law Commission: new criminal justice project

2007-11-21T19:39:00.000Z

Earlier today, the Scottish Government announced that it has asked the Scottish Law Commission to carry out a “series of studies… aimed at ensuring an appropriate balance between the rights of the accused and the ability of the Crown to prosecute in the public interest”. The Commission has been asked to look at the following issues:Judicial rulings that can bring a solemn case to an end without

Temporary sheriffs: what were we worried about?

2007-11-18T18:53:00.000Z

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

Cross-border jurisdiction

2007-11-16T15:04:00.000Z

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

From bicycles to mannequins

2007-11-14T18:05:00.000Z

Earlier today, Robert Stewart, who had the dubious distinction of being the subject of the first item on this blog, was sentenced to three years on probation for committing a breach of the peace by having sex with a bicycle in a hostel room. A report is available on the BBC News website.As a postscript, it may be noted that judicial consideration of such activities is not peculiar to Scotland.

Murder: no safety in numbers

2007-11-13T15:58:00.001Z

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

More guidelines, and a remarkable injustice

2007-11-09T17:25:00.000Z

Within a few hours of the previous entry on this blog, speculating that the appeal court might make more use of its power to issue sentencing guidelines in the future, the court has issued an opinion doing just that. (Recommended Lottery numbers may appear here later.) The case is Spence v HM Advocate [2007] HCJAC 64.Spence refines the guidance on sentence discounting

Sentencing guidelines: a new development?

2007-11-09T11:20:00.001Z

Since 1995, the High Court has had the power to pronounce “sentencing guidelines” in appropriate cases, under section 118(7) of the Criminal Procedure (Scotland) Act 1995. However, the power does not appear to have been explicitly used until 2003, when the appeal court offered guidance on the appropriate discount for a plea of guilty (Du Plooy v HM Advocate 2005 JC 1) (although thanks to Fiona

Contempt, again

2007-11-08T10:39:00.000Z

Contempt of court seems to be flavour of the week. Yesterday, a Full Bench of the High Court issued opinions in Robertson v HM Advocate; Gough v HM Advocate [2007] HCJAC 63. The leading opinion, delivered by Lord Justice-Clerk Gill, is an important review of the law of contempt and the attendant procedure.(One of the cases under consideration involved four findings of contempt against Stephen

An unprecedented contempt case

2007-11-06T14:59:00.000Z

About two weeks ago, Lord Carloway indicated that he was considering whether comments made by the solicitor Aamer Anwar to the media after Mohammed Atif Siddique’s conviction for terrorism offences might have been a contempt of court. Today, he has announced that he is remitting the matter to the High Court in Edinburgh for a decision. His full reasons have been published on the Scotcourts

The bicyclist and the sex offenders' register

2007-11-05T17:10:00.000Z

According to a recent report in the Telegraph, a man by the name of Robert Stewart has been convicted of breach of the peace and placed on the sex offenders' register after being found by two cleaners having sex with a bicycle in a hostel room. Or, in the words of the Telegraph, "trying to have sex with a bicycle". So presumably he was unsuccessful (unlike Karl Watkins, whom the Telegraph reminds