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Contortions of corroboration

1 September 99

Latest criminal cases, including bail; co-accused; self-representation; lawful authority; fire raising; Moorov rule

by Andrew Lothian

Reported cases these days fall into two classes, old friends revisited, in which fresh ingenuity is brought to bear on old problems, and the children of Europe, which reflect the changing political circumstances in which we live. Actually the ethos of the Convention, reflecting as it does post-war, cold war conditions, makes it very difficult to predict whether or not some hallowed practice of Scots law will now stand as repugnant to all right thinking people, so that we will probably have a lot of appeals taken on a just in case basis, like the one about temporary sheriffs.

So far as devolution issue cases are concerned, the likelihood is that most of these will be made in the Sheriff Court, with the responsibility of little reporting, except via the Internet, unless and until matters reach the High Court. In this connection, there is the case of PF Hamilton v Allan Selfridge and Another, not yet reported, in which the High Court issued an opinion on 4th August 1999. The case is not, I think, of far-reaching importance, dealing as it does with an argument that the statement which now is provided disclosing the evidential basis of a prosecution might have a prejudicial effect on the workings of the sheriff’s mind when considering the question of bail. It is generally agreed that the strength or otherwise of the case against an accused is not one of the matters which the court should take into account when considering a bail application and this case seems to support that understanding. However doubt has been expressed in some quarters as to what should be taken from the High Court’s reference to the statement as “additional safeguard for individuals against arbitrary arrest and detention.” The appeal, perhaps not surprisingly, did not get a favourable response. So far as other cases are concerned, it is known that sheriffs have already begun to acquaint one another with some of the devolution issues decisions via the Internet and it is obviously in everyone’s interest that what is happening around the country is generally known to practitioners.

Turning to criminal procedure, Munro v HM Advocate 1999 GWD 17-773 is a case involving two accused in which it was argued that a taped interview in which one made incriminating remarks about the other, outwith his presence, should not have been played to the jury. The presiding judge gave directions that what was said was not evidence against the co-accused (although such directions in principle do tend to remind one of Lionel Daiches’s remarks about asking them to hold onto the skunk while ignoring the smell.) It was the view of the appeal court that the judge had exercised his discretion correctly, although there was mentioned the possibility that in certain cases the appropriate thing would be to provide an edited transcript.

One can however envisage certain cases in which a person who gave a statement would want the jury to hear it in its entirety. In such a case the interests of the two accused would appear to conflict and it may be that the best course for the co-accused, were the difficulty anticipated, would be to seek a separation of trials.

Fairness was again the question in two cases involving difficulties regarding representation. In Venters v HMA 1999 GWD 18-823 counsel found it necessary to withdraw from acting, the reasons for which are explained in the report but of course are something that a court a has to be very careful about enquiring into. It was held that the appellant had been denied the opportunity of seeking legal advice and that accordingly, Lord Morison dissenting, justice had not been seen to be done. In Bullock v HMA 1999 GWD 20-930 an accused who had begun by himself asked on the fourth day of evidence for the services of a solicitor. This he did not get, but the appeal court felt that he should have and that the proper course would have been given the opportunity of arranging representation and for the court to decide at that stage whether the diet should be deserted. These cases taken together seem to demonstrate that no matter what an accused does, he must not be seen to be denied a fair trial.

That the wind can occasionally be tempered to the shorn lamb that is the Crown can be seen from the case of McNaughton v Friel 1999 GWD 21-986, where it was held that an adjournment for the Crown to get more witnesses was reasonable when it emerged in the course of evidence that two police officers could not speak from direct knowledge to the malfunctioning of a Camic machine. It was re-emphasised that fault is not a bar to the granting of an adjournment and that the sheriff is entitled to have regard to the public interest in exercising his discretion.

Turning now to matters of substantive law, one case which came as something of a surprise was Scott v Crowe 1999 GWD 17-772 which put a construction on section 57(1) of the Local Government Act 1982 which perhaps differed from what had been generally supposed. The section deals with the offence of being on premises with intent to commit a crime. The place in question here was a shop doorway, a place to which the public had generally implied authority to be. In this case the appellant was found in possession of a Stanley knife, a crowbar and a knife. It was held, however, that it was necessary for the Crown to prove an exception to the general rule and that an intention to commit theft could be inferred. While it might be argued that the general invitation to the public was for certain purposes, which did not include breaking into the shop, it here does look as if the law will require to be rephrased. Another area in which it might have assumed that the law was reasonably settled was that of mens rea, but pitfalls never cease to be discovered and Reid v HMA 1999 GWD 19-871 certainly deserves to be looked at. It was argued on behalf of the appellant that the presiding judge had misdirected the jury inasmuch as he told them that they could take into account the evidence about the appellant’s behaviour immediately after the incident in question in considering the question of wicked recklessness. Accordingly it seems quite clear that there is no cutting off point beyond which evidence of behaviour after an incident may not cast light on attitude before.

Further developments too may be looked for in the law relating to the crime of wilful fire-raising following the first hearing of an appeal in the case of Byrne v HMA 1999 GWD 18-822, which has been remitted to a court of five judges, where it is hoped, and expected indeed, that the question of intention, considering that we also have crime of culpable and reckless fire raising (of which indeed, on one view of previous cases, wilful fire-raising as applied to certain objects may be a branch) will be sorted out. A good case might be made out for suggesting that this is an aspect of law in which reform might be carried out fairly quickly by way of legislation, but unless this happens any agent involved in a case of this sort should watch out for the forthcoming hearing.

C v Criminal Injuries Compensation Board 1999 GWD 21-985 is a petition for judicial review, refused, on behalf of a mother whose daughter had been the victim of three incidents of indecent exposure. The Board’s conclusion that none of the incidents involved a crime of violence was upheld, this being a matter for consideration of the facts of each particular case to ascertain whether there had actually been violence. It was also argued that the Board had failed to give adequate reasons for the decision, but the court held that what had been provided was sufficient which reserving its opinion as to whether the Board was generally obliged to give reasons.

As for evidential matters, students of the Moorov Doctrine will be pleased to see it again in Reid v HMA 1999 GWD 20-919, in a case which must be about as narrow as could be. The charges were of rape and attempted rape and it was argued, unsuccessfully, that the evidence went no further than showing that the appellant had a disposition to commit this sort of offence. There have, as usual, been a number of other cases about corroboration, of which Hendrie v Ruxton 1999 GWD 20-920 deals with one of the flavours of recent times, since McDonald v Scott 1994 SLT 673 at least, conjunction of testimony and MacLeod v Spiers 1991 GWD 21-980 in part at least with corroboration by distress. In the latter case the complainer’s account that he had been indecently assaulted while asleep was held to be capable of being corroborated by another witness who hears certain noises and saw what one might reasonably describe as the aftermath. While it is true that it is a long time since it was suggested with any degree of persuasiveness that the items of evidence from the separate sources should have to be of themselves incriminating in the crime charged, we are now clearly in an era when a credible witness requires so little by way of corroboration whether we are actually doing any more than paying lip-service to the requirement and if so whether the law should be changed by legislation. It might not be entirely charitable to describe as contortions some of the propositions put forward in the last half of this century, but we are clearly a long way away from what is popularly and proudly, if inaccurately, thought to have been the badge of the superiority of our law, namely the proposition that you can’t be convicted of a crime unless two people say you did it.

Finally three assorted cases which might be of interest since the general circumstances of each are relatively common. Gillespie v Brown 1999 GWD 21-1036 deals with the problem of the passenger in the stolen car. In this case, there had been a verdict of guilty of theft, but the appeal court, in so far as it had not been shown that the appellant had been present at the time of the original theft, substituted a verdict of reset.

Brown v Kennedy 1999 GWD 24-1141 was an appeal against a conviction of possession of an offensive weapon, in this case a 6 to 8 inch kitchen knife, in a public place. As the knife was found by police officers in the hem of the appellant’s woollen hat, in a public house, it was held that this was sufficient, this state of affairs being inconsistent with the appellant’s explanation that the knife was being taken home. (Experience indicates that the usual reason for having a knife in a public place are 1) for fishing, 2) for laying carpets and 3) in order to prevent the immediately previous possessor, “a younger boy”, from doing harm with it.)

Givens v O’Donnell 1999 GWD 24-1183, which is about the terms of a reply to caution and charge, reminds us first, by implication, that there is not much use in the court knowing what the reply was unless it knows what the charge was, a point often overlooked by prosecutors anxious to reach the incrimination bit. The charge in this case was of wilfully damaging a car window and the reply “Sorry pal, I fell out with the girl” was held on appeal to be an apology which might refer only to the fact of the widow being broken and not to the commission of the crime. The lesson would seem to be that unless the admission is uniquely referable to the charge then it is of no assistance. What happens in the case of accused persons who have misunderstood the charge is not clear: presumably they have to give acceptable evidence to that effect.