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Bread and butter matters

1 December 99

Latest criminal cases, including temporary sheriffs; delay; road traffic; breach of the peace; Moorov rule; and citizen's arrest

by Andrew Lothian

While it is the big devolution issues that have been making the headlines recently, we do not propose to discuss them in detail here, preferring for the moment to stick largely to bread and butter matters.  However, it is clear that all of our practices are being scrutinised in the Euro-glare and that human rights legislation is now firmly at the heart rather than on the periphery of that we do.  However, one cannot ignore either Starrs v Ruxton or Thompson v Crowe, both of which are to be found, conveniently, in the same issue of Greens Weekly Digest, namely no 37 at 1793 and 1790 respectively.  The first, which is the one about temporary sheriffs and by implication much else besides, falls into the category of “if you read only one case this year…”. The second, which infuses a bolt of electricity into the Frankenstein’s monster that is the trial within a trial.  Those in a  hurry will be glad to see that the Lord Justice General has provided a most useful summary of what is to be done in various circumstances.  This appears at the end of his judgment which is of necessity a lengthy one, involving as it does a discussion of and a return to correct principles.

For those who would like to have a look at other devolution issues in action, it may be sufficient to mention HMA v Little 1999 GWD 28-1320 and McLean v HMA 1999 GWD 36-1732.  The first of those deals with the question of undue delay which is struck at by article 6(1), providing for as it does a fair and public hearing within a reasonable time.  One of the interesting things about the court’s analysis of the situation is the ruling that delay has to be considered separately from any question of prejudice caused thereby: we have accordingly moved away from the position when there was a sort of three step test of whether there has been delay, whether it was unjustified and whether there had been prejudice.  Do not miss this one if you have a client facing trial a considerable time after the date of the offence.  The second deals with two matters: the first ground of appeal related to the latitude taken in the indictment “between 1st November 1994 and 27th November 1994” – which it was argued, unsuccessfully, infringes the right granted by subsection 6(1)(a) of the Convention to full details of the charge one faces.  The second, also unsuccessful, related to delay and will be of interest to those whose clients have also become involved in Children’s Hearing proceedings in respect of the same factual situation.

A consideration of the foregoing cases will make it perfectly plain that the Convention is not an option even if you think that it is pretty difficult to apply principles devised to stop people like Hitler and Stalin locking people up without explanation and declining to give them a date of release.  The fact is that on advising a client about a situation involving a criminal charge, the first thing that you should think about is the question of Convention rights and this applies even when our law and practice has previously found what you are faced with to be unobjectionable.

Now to road traffic law. McNee v Ruxton 1999 GWD 28-1354, which is actually a case about offensive weapons, deals in passing with sec 163 of the Road Traffic Act 1998, which allows the police to stop motorists for a check on roadworthiness under sec. 67.  The court, observing that the powers granted under this Act were very wide, held that evidence about what was found in the vehicle in question was admissible.  Thus while we do not allow stoppages at random, it does appear that if done for the purpose of section 67, anything else criminous that turns up is fair game.  As this would clearly include drink and driving matters, it might be best if a clear power to carry out random stops with a view to obtaining breath samples if alcohol was suspected were granted by statute.

It is remarkable that even at this distance in time since its introduction we are still getting new matters raised in connection with the breathalyser.  Here are four of them.  In Wilson v Webster GWD 1999 27-1300 the appellant had been required to give a blood sample because the dates and times on the Camic print did not make sense.  As the blood sample turned out to have been insufficient for analysis, the Crown relied on the original Camic readings, there being noting wrong with the machine’s analytic function.  This was held to be in order, the court observing that if it had been the blood which was relied on the prosecution would have failed as the Camic procedure had been properly carried out and thus the blood had been improperly obtained.  Thomson v Ritchie 1999 GWD 31-502 was an appeal on the basis that police officers had no reasonable grounds for administering a breath test.  There had been an anonymous phone call describing a car with a driver under the influence.  Shortly thereafter police officers observed the car stationary and unoccupied and then saw the appellant enter it and drive off.  It was unsuccessfully argued that there had been a material break between what the caller described and what the officers saw and the appeal was refused.  Gallacher v Dick 1999 GWD 32-1558 was a successful Crown appeal against a successful objection before the sheriff in circumstances where officers required a blood sample because they had been told by the sergeant acting on information from another officer that the machine was faulty.  It was held on appeal that on this basis they could reasonably believe that a reliable device was not available and so were entitled to proceed as they did.  Finally Brannigan v McGlennan 1999 GWD 35-1713 is a rather unusual case in which the appellant was charged with failing to provide a breath sample when the machine gave a “breath invalid” print-out before it was realised that it was not working.  The appellant then refused to give a blood sample.  The original charge was subsequently dropped.  It was held that the fact that the appellant had been deprived of the chance of complying with the original requirement was not relevant, the failure to give blood being procedurally quite separate.

To be fair, the breathalyser is not the only old friend still attracting comment.  Breach of the peace cropped up again in Grogan v Heywood 1999 GWD 28-1317 in the context of that not altogether unknown activity, swearing at the police.  While the success of the appeal turned to a large extent on the way in which the case had been stated the case reminds us of the necessity of proving at least the possibility of fear and alarm.  It is not inconceivable that the existence of the crime may be challenged on a human rights basis: it is an odd survival, since it does not require criminal intent, strictly speaking, to commit a breach of the peace it might be said that the whole concept is too wide for fairness to the accused.  To introduce a personal note, ever since I  was present in the appeal court and heard that crafty judge Lord Walker chuck a spanner in the works during an appeal about shameless indecency by asking “what would happen if an actress came on stage with her breasts all bare and everyone wanted to see them?”, the subtleties of this crime have been something of a puzzle.  The appeal court addressed that matter in the case of Usai v Russell 1999 GWD 32-1519, which incidentally confirms that indecent exposure is a form of shameless indecency (although it could be argued that it had more in common with, and in fact was, a form of assault).  In the appeal it was argued that there had to be proof of criminal intent or at least reckless indifference to the effect the appellant’s behaviour might have on others.  The court held that in the instant case the necessary mens rea could be inferred from the proven facts. The law seems to be settled that this involves either a deliberate intention or behaviour carried out in circumstances where it must have been obvious that it was likely to be observed and cause upset.  Where this leaves Lord Walker’s question I am still not sure.

And so to Moorov, cropping up again in HM Advocate v Reid 1999 GWD 29 1362.  The charge here was of lewd conduct towards two girls, each speaking to what she had said had happened to her.  It is well settled by now of course that evidence of two separate acts spoken to by one witness can allow a jury to conclude that they were part of a course of systematically pursued criminal conduct.  The argument in the appeal was that the trial judge should have directed the jury that the evidence of one girl might be sufficient to corroborate the other but not to establish the charge spoken to directly by her.  The novel proposition was rejected by the appeal court as involving a logical contradiction, with the court pointing out that it was possible for the jury to delete part of a charge if they were not satisfied.  The unsuccessful argument is really the other side of the occasional situation in which a jury, faced with a two-witness Moorov situation, decides to do what the court says they should not and convict on one charge and acquit on the other. The doctrine has proved useful to the Crown in securing convictions over the years, and not just in sexual cases, but in all conscience one does wonder just how much there is in the “ongoing course of conduct” line when two examples are enough to establish it.  Moorov must by now, I think, have been stretched to the limit.

And now for something rather less familiar, the citizen’s arrest, which was considered in the case of Wightman v McFadyen 1999 GWD 27-1267.  This was an appeal on the basis that the arrest had been an illegal one and the first point to be clear about is that contrary to what the sheriff thought, the court held that an illegal arrest would taint what had been done after the police arrived.  The point is an interesting one for it was not I think suggested that the actings of the police, per se, were objectionable.  Be that it may, the court differed from the law as set out in Renton & Brown and held that while mere suspicion was not enough to justify a citizen’s arrest, where there was what was described as a moral certainty that a crime had been committed and that a particular person had committed it, then an arrest was justified.  It is accordingly a mater of degree, although as a matter of public policy one would assume that it is to be hoped that there are not too many citizen’s arrests.  One major criminal, it is recollected, was of course arrested on the evidence of, though not actually by, the Glenrothes neighbourhood watches.  But it is quite a step from that to licensed vigilantes.

Finally, and in something of a rush, it is worth having a look at Cullinton v HMA 1999 GWD 28-1314, which looks again at the question of distress as a corroborating factor, emphasising that it is a lack of consent, and no more than that, which is involved, a suitable reminder that that which corroborates something does not necessarily corroborate everything.