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.

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.

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.

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.

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 8^th 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.

Voluntary intoxication as a defence to rape

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. (I use that rather cumbersome formulation because it’s not clear what the offence should actually be called, as the statute, unhelpfully, doesn’t give it a name. But the offence is constituted by engaging in a sexual act with or towards a mentally disordered person who does not consent or is incapable of doing so by reason of mental disorder.)

What is significant about the case is the trial judge’s explanation of the jury verdict, reported by the BBC as follows:

“Jailing him, Judge Roger Craik QC said, “The jury must have thought you were very drunk at the time of commission of this offence and were probably not fully aware of what you were doing. Presumably that is the reason for the jury finding the rape charge against you not proven.” But, added the judge, the jury obviously came to the view that Mierzwa should reasonably be expected to know the identity and nature of his victim.”

Does this make sense? Scots lawyers tend to take the view that voluntary intoxication can never be a defence to a criminal charge, a principle which flows from the decision in Brennan v HM Advocate 1977 JC 38. There are some difficulties with applying the principle in Brennan to crimes of intent (see this earlier note on HM Advocate v Purcell [2007] HCJ 13), but as the mens rea of rape requires only recklessness as to a lack of consent, the reasoning in Brennan could be much more readily applied to a case like Mr Mierzwa’s.

But, of course, this demonstrates one problem with the decision in Brennan: is recklessness really generic in nature, which can be matched up with whatever criminal actus reus the accused commits thereafter? In Ross v HM Advocate 1991 JC 210, the appeal court sought to rationalise Brennan by saying that where voluntary intoxication negated mens rea the accused would be “assumed to have intended the natural consequences of his act” (at 214 per the Lord Justice-General (Hope)).

That has problems of its own, because Lord Hope referred to situations “where the condition which has resulted in an absence of mens rea is self-induced”, which does not quite make sense. If intoxication has resulted in the accused doing something he would not have done sober, in what sense has intoxication “resulted” in the absence of mens rea, which would have been absent in any event?

But the issue is different here. The absence of consent to sexual intercourse is not a consequence of anything (it is a circumstance), so does this mean voluntary intoxication can be a defence to a charge of rape? Assuming that Scots law is to continue to take a strict approach to the unavailability of intoxication as a defence, presumably it should not be (contrary to what Mr Mierzwa’s case seems to suggest), but Ross does not explain how that result would obtain.

Perhaps the best approach would be that suggested by section 2.08(2) of the Model Penal Code (endorsed by Lord Elwyn-Jones LC in in DPP v Majewski [1977] AC 443 at 475):

"When recklessness establishes an element of the offence, if the actor, due to self-induced intoxication, is unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial."

(Incidentally, the temporary judge’s sentencing remarks give some indication of the directions which were given to the jury as to the fault requirement under section 311 of the 2004 Act, something on which the statute is itself silent.)

"Passing a bad law is a criminal act"

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 "proximity of age" defence - now looks like a self-contradictory attack on the proposals altogether.

(In addition, the Sunday Herald has taken out a few words in the first paragraph which mentioned that even teenage kissing could be a criminal offence in England and Wales under the Sexual Offences Act 2003. I suspect they might have taken them out because the claim seemed so ridiculous as to be patently incorrect, but sadly it's true. There's a good explanation available on the BBC News website.)

For the record, the article should have ended as follows:

"This is not to say that the fears of bodies like the Christian Institute can be ignored. There must be a danger that if the Commission’s proposals make it into law, then some teenagers will misinterpret the changes and believe that the age of consent has been radically lowered. That is better addressed by education than by passing unenforceable laws, but it means it is crucial that the Scottish Government considers exactly how to communicate the effect of new legislation.

And just one other thing. In proposing a defence for teenagers two years or less apart, the Commission seems to be concerned that they may not know each other’s exact birthdays. So, they suggest that the defence should be based on “whole age”. That is, if a boy of 16½ engages in sexual activity with a girl just turned 14, they would be regarded as only two years apart. But that would cause problems when the boy turned 17 and the girl was still 14 – would their ongoing sexual activity suddenly become criminal now that they were three years apart?

Ah, says the Commission, we have a solution: there will be a supplementary defence saying that sexual activity between teenagers three years apart in “whole age” will not be criminal if they had previously engaged in sexual activity while they were only two years apart. But that cannot be right. On that basis, the law would tell this hypothetical couple that, to avoid committing a crime, they were obliged to start engaging in sexual activity on the evening of the boy’s 17th birthday unless they wanted to wait six months until the girl turned 15.

It surely cannot be right that the law should encourage teenage sexual activity in this way. Of course, teenagers are hardly likely to keep a copy of the Sexual Offences (Scotland) Act on their bedside tables to guide their sexual choices, but that is hardly the point. Criminal law is supposed to be addressed to the public, and if a rule of the criminal law has to be defended on the basis that no-one other than lawyers will pay attention to it, it is a bad rule."