Back to top

Tread warily with mixed statements

1 March 01

Latest criminal cases, including road traffic; cross examination; statements; delay; sentencing; provocation

by Andrew Lothian

Road traffic

It is to be supposed that means of transport have always been legally regulated. There was the, surely not common law, offence of furiously riding a bicycle and I seem to recall something about a man from Forfar being drunk in charge of a horse, but who would have thought that we would have had so much business from the internal combustion engine? So road traffic law it is. The first case Codona v Higson 2001 GWD 1-75, however, which concerns an appeal against sentence in a dangerous driving case, is interesting for a more general reason. It seems that the fines were regarded as cumulatively excessive on the basis that they would take 120 weeks to pay. This might be seen as supporting the relatively new and otherwise I think bad practice of the instalments, which the accused considers he could afford being suggested as part of the pleas in mitigation. Of rather more substantive interest is Murray v HMA 2000-GWD 1512 which involved a charge of causing death by dangerous driving. It has been clear for a long time that dangerous driving, what ever else it was, was not simply what the reasonable onlooker would characterise as dangerous. The problem in the present case was that, as often happens, a number of separate actions in the course of driving had been specifically libelled in the indictment, one of them being an allegation that the accused had been using a mobile phone at the material time. On appeal the crown conceded that this part of the charge should have been withdrawn but argued without success that it did not make any difference to the merits of the conviction. The appeal was successful, with a conviction of careless driving substituted. The court held that regardless of whether the correct test was whether the jury would have “necessarily” have convicted or would have done so “without doubt”, it could not be said that the evidence in relation to the mobile phone would have been immaterial to the jury’s consideration. The moral is that when a charge of dangerous driving is being considered, careful consideration must be given to all of the constituent parts of the libel and to the evidence given in respect of each. For the record, the next reported case, Brown v Stott is the one with which you will all be familiar in which the Privy Council differed from the Court of Appeal over the question of admissions made in terms of s 172 of the Road Traffic Act 1988. Finally, on the ever-interesting topic of toting-up, McNally v Higson 2000 39-1468 confirms that the consequences of a professional driver, in that case at least, losing his licence and thus his job do not amount to exceptional hardship since such an outcome would be a normal, and presumably foreseeable, consequence. Exceptional, it is clear, means just that.

Restriction of cross-examination

Moving on to general questions of fairness, those interested from a political or an academic point of view in the question of the restriction of cross-examination cases involving allegations of sexual assault or abuse, as well as practitioners, will be interested in Thomson v HMA 2001 GWD 4-153. In that case it was argued on appeal that a miscarriage of justice had occurred as a result of the defence not being allowed to put certain points to the complainer about her alleged sexual history. Among the reasons given by the appeal court for upholding the decision of the trial judge was that so far as some of the matters were concerned there was no evidence available to support what was being put to the witness, so that in effect the questioner was to be regarded as fishing for a favourable answer. So far as other matters which it sought to raise were concerned, the appeal court agreed with the trial judge’s assessment the subject matter as being too remote from the concerns of the trial. The case does illustrate yet again how difficult the concept of judicial discretion is. From a practical view, one also has to remember that decisions of this sort, which may have serious consequences, have to be taken in the anxious atmosphere of a jury trial, which is of course much different from the studies and reflective atmosphere of the appeal court. The complainer’s right not to be harassed and the accused’s right to whatever defence is appropriate cannot, I suspect, be reconciled so that whatever solution is reached on this difficult topic will be a political one in the end. Perhaps clearer thinking might result from a clearer appreciation in some quarters as to what is the only proper concern of a criminal trial, that is to say the proof or otherwise of the guilt of the accused.

Evidence – mixed statements

Turning to the law of evidence, one must admit to certain difficulties when it comes to the question of mixed statements by accused persons and their evidential value. It was with some relief therefore that one read McCutcheon v HMA 2001 GWD 22, which has the effect of remitting the whole matter to a court of nine judges so that the case of Morrison v HMA 1991 SLT 57 may be reconsidered, among other things in the light of art 6(3) of the Convention. One of the suggested difficulties about the law as it stands is the rule that a mixed statement is admissible in evidence only if led by the Crown or the defence without the Crown objecting and that this appears to allow the Crown to be able, without justification, to prevent the jury hearing exculpatory evidence. We shall see, but for the moment anyone confronted with a mixed statement should go warily.


There are a couple of cases worth a look on the topic of delay, to be found at 88 and 89 in 2001 GWD-2. Hendry v HMA was an unsuccessful appeal in terms of art 6(1) of the Convention on the basis of a 14-month delay between the passing of the petition warrant to the police and the appellant’s indictment. Mitchell v HMA proceeded on the basis of a 20-month delay between the DHSS fraud department sending the papers to the Crown and the service of the indictment. Perhaps it will not be necessary to spend too much time on these cases however as it was observed in the latter one that what was in issue was the application of the art.6 principles to the facts of the case in point and that unless there was a close analogy with a previous case, reference to prior decisions were not likely to be helpful. 1113


Now for a few cases about sentencing. Stewart v Carnegie 2001 GWD 1-33 was a successful appeal against a sentence of imprisonment in respect of behaviour of a taxi driver saw the court emphasising that although the appeal would be allowed it was to be understood that taxi drivers did have a special responsibility to young passengers. Morgan v HMA 2001 GWD 1-34 shows the sort of risk heroin dealers are running, a sentence of seven and a half years being confirmed in respect of someone dealing to four or five people in order to fund his own habit. Baird v HMA 2001 GWD 1-44, which was a petition to the nobile officium following imprisonment for 60 days for breach of a supervised attendance order, seems to see the appeal court looking to the original offence and the alternative to the fine then imposed as guidelines for what should happen in the event of breach. While the decision of the appeal court is undoubtedly entirely correct, it does point up some difficulties as regards supervised attendance orders. In the first place it is difficult to see what attention if any in fixing the sentence is to be paid to the fact that the appellant has not only failed to pay the fine but has also failed to carry out another order of the court. Secondly, there is a strange situation which arises out of the low levels in terms of days in prison to fines, namely that by not paying a fine one ends up with a term of imprisonment so short as to have never been in the sentencer’s contemplation in the first place. It is perhaps time to say that supervised attendance orders may have to be looked at again by the legislature since although they are quite good in theory they do not seem to have been much of a success. In particular, it might be worth considering again whether or not they might be a first-option sentence rather than a fine-default based one.


Finally and unreported at the time of writing there is the case of Drury v HMA (February 2001) in which five judges reconsidered the doctrine of provocation in the context of a verdict of culpable homicide as opposed to murder being justified. The appellant had been convicted of murdering his former partner after finding out that she had been unfaithful to him. The direction given by the trial judge was to the effect that the jury should consider whether the degree of violence used was grossly disproportionate to the provocation. The appeal court ruled that the test of proportionality was not appropriate in a case where the provocation did not take the form of an assault. The Crown was granted authority to bring a new prosecution. The Court confirmed something which is sometimes misunderstood, namely that once a plea of provocation has been raised it is for the prosecution to exclude it. Further, in a case of this sort it must be established that the relationship between the parties was one on which sexual fidelity could be expected, that the accused had lost self-control due to provocation (thus not being possessed of the mens rea necessary for murder) and that the test for establishing whether the accused had lost his self-control as a result of provocation is whether an ordinary (as opposed to a reasonable) man thus provoked would have been likely to act as he did. The test of commensurateness is accordingly not applicable.