Wednesday 30 April 2008

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.

Tuesday 29 April 2008

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.

Sunday 27 April 2008

Jury consultation expected

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

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

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

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

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

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

[Juror] Eaton: The judge.

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

[Juror] Eaton: Your mother.

Friday 25 April 2008

The male stripper and the offensive weapon:
appeal dismissed.

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

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

Friday 18 April 2008

The male stripper and the offensive weapon:
latest developments

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

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

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

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

A written decision will be issued in due course.

Thursday 17 April 2008

A very bad news day

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday 15 April 2008

Defence against what?

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

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

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

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

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

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

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

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

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