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.