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Time to clarify rules on additional evidence

1 December 02

Latest criminal cases, including inadequate representation; self-incrimination; withdrawing a guilty plea; bills of suspension; additional evidence after conviction; sentencing

by Andrew Lothian

The new(ish) ground of appeal against conviction that the defence case was not properly put has come up for scrutiny again.  In Ditta v HMA 2002 GWD 28-963 the appellant had been convicted of blackmailing a doctor by threatening to reveal that he had been involved in homosexual conduct. There were two grounds of appeal. The first was that medical records should have been recovered and lodged since they might show something different about the parties’ contacts during the relevant period to that spoken to by the doctor. It was held that at best to have done this would have provided another line of attack on the witness’s credibility, but that it would have been in the nature of a response to evidence given on a collateral matter which could not have been reasonably foreseen.  The other ground related to an alleged failure by the presiding judge to direct the jury properly about the prosecutor’s suggestion that the failure of the appellant’s solicitor to put certain matters to a witness in cross-examination indicated that the appellant had made them up in the witness box.  It was held that the matter had been dealt with properly.

Right not to self-incriminate

Another fairly new friend, art 6(1) cropped up in Brown v Gallacher 2002GWD 30-1055, this time in connection with the Intoximeter.  It was argued that one’s right not to incriminate oneself extended to not having to give a breath sample. The appeal was not successful. Had it been, it would have been groundbreaking, there being nothing in any known jurisprudence to justify the submission. A distinction was drawn, and it does seem a pretty obvious one, between material provided in accordance with statutory procedures and answers obtained under compulsion.  A subsidiary argument was advanced to the effect that the sanction imposed in respect of a failure to comply constituted a degree of compulsion that destroyed one’s right not to self-incriminate.  The court’s opinion was that any degree of compulsion was not disproportionate having regard to the fact that the requirement could be made of an arrested person only and that in any case the penalty for failing to provide was no greater than that for the substantive offence. I wonder if this involves an underlying assumption that the most likely reason for refusal is fear of failure? If so, this might seem to be in contrast with authority to the effect that failure to stop after an accident is probably because to do so might lead to the discovery of another serious offence.

Withdrawing a guilty plea

One of the hiccups in sheriff court procedure is what is to be done when a person decides that they want to withdraw a guilty plea.  Often, say in cases where an inexperienced person has tendered the plea without legal advice, the Crown will have no objection.   Matters however were a little more complicated in the case of Madden v Higson 2002 GWD 29-997. The charge was one of possession of an offensive weapon and the appellant had written to the court pleading guilty on the standard form and explaining that he had carried it as a deterrent. At the sentencing diet the agent appearing sought to withdraw the plea as inconsistent with his instructions which were also not consistent with the explanation in the letter. A bill of suspension was lodged on the basis that the sheriff had not at the time allowed an adjournment for the agent to consult with his client about this state of affairs.  As the sheriff could not say that this was not the case, the court proceeded on the basis that the sheriff had never got to the stage of being able properly to consider any explanation for this discrepancy, as Healy v HMA 1990 SCCR 110 requires, and so could not say that there was no conceivable justification for what had happened.   The bill was passed and the case remitted to a different sheriff, the court declining to take the view that the reason for the discrepancy was something that might have properly been discussed between agent and client before the motion was made.

Bill of suspension

I may be missing something, but I find it hard to understand how appeals by way of bill of suspension of warrants granted by sheriffs or justices can be anything other than speculative. It seems, however, that in Graham v Higson 2002 GWD 34-1140 the justice involved was willing to give a statement by way of precognition to those acting for the appellant.  It is not clear whether he was aware that he was entitled to refuse to do so.   Be that as it may, the more important document in the case was the report obtained in response to an interlocutor of the appeal court.  It was made clear that while the justice did not recollect the particular circumstances of the application, his statement that he would have put the applicant on oath and asked questions before granting the warrant meant that it could not be inferred that he had failed to act as an independent judicial officer and the bill was refused. Two evidential matters are reported in the same number of the digest. Brown v HMA (1136), which is about the role of false evidence by the accused in corroborating evidence of identification of a driver, casts doubt on the prevailing authority on the point, Winter v Heywood 1995 SLT 586, but the court was not asked formally to reconsider that case and so did not do so. This may be regarded perhaps as an invitation to ask the court to do so next time that the point comes up.   Lennox v HMA(1139) dealt with mixed statements and highlights the difficulty of deciding whether a statement is indeed mixed or merely exculpatory and as such not evidence of the facts referred to therein. The case involved charges of being concerned in the supply of drugs and the statements in question were to the effect that the drugs were for the appellants’ own use. Put shortly, the appeal court was of the view that in as much as the statements were relied on in part by the prosecution and in part by the defence then they were clearly mixed and that the jury should have been directed accordingly.

Additional evidence after conviction

Although it is not exactly an everyday occurrence, the hearing of additional evidence after conviction is a matter of great importance and the case of Lyon v HMA 2002 GWD 34-1138 is accordingly worth a look.

The appellant had been convicted of murder. His then co-accused, who had incriminated him, had now signed an affadavit stating that he himself had delivered the fatal blow but had not told the truth about this at the trial. He had now become a Christian. It was argued that his age, state of mind and interest in protecting himself explained why the evidence had not been given earlier and his conversion explained why he was ready to give it now. The court allowed the evidence to be heard, in so doing possibly veering away from the approach which the court seemed to be adopting in the case of Campbell v HMA1998 SLT 932.  The court found it difficult to say that a desire to protect himself coupled with a genuine change of heart could not amount to a reasonable explanation as to why the evidence had not been given before and could be given now. Accordingly it was appropriate that the court should allow the evidence to be heard before deciding the difficult legal questions which arose.  This “proof-before-answer” approach does rather differ from what was said in Campbell, namely that the satisfaction of the tests put forward by sec 106 of the Criminal Procedure (Scotland) Act 1995 should take place before any attempt was made to assess the effect of any new evidence. It seems unfortunate that there should be doubt about the proper application of a reasonably important piece of legislation, a situation that falls, I think, to be laid at the door of the legislature.

Sentencing

There have been a number of sentencing cases of more general interest than is sometimes the case.  Withers v HMA 2002 GWD 29-1009 dealt with the sometimes difficult question of inconsistent statements of fact. The appellant was given a sentence of seven years imprisonment for being concerned in the supply of cannabis. There was a plea of guilty. Drugs with a street value of several thousand pounds were found in the appellant’s house.  He was also found to have £11,000 in his possession and the sentencing judge inferred was to be used to buy more drugs.  At the time of the search the appellant was said to have said that he had “ not got the drugs yet.”  He later denied saying this. The crown initially said that its position was that he had made the statement, but later said that it was not aware of the appellant’s intentions in relation to the money found. The appeal court held that the matter had to be dealt with on the latter basis.  It was said that it should not be left to the court to try to resolve ambiguous or inconsistent statements and that if there was a dispute between prosecution and defence about a material matter there might have to be a proof in mitigation. Marshall v Stott 2002 GWD 29-1014 considers once again the circumstances in which a schedule of offences discloses an offence inferring personal violence and so makes the case before the court one appropriate for a custodial sentence of up to six months.  The appeal court confirmed that the relevant dates to bring s 5 of the Criminal Procedure (Scotland) Act  1995 into play were the commission of the offences. It was also suggested that it might be a good idea for the Crown to lodge extract convictions where appropriate so that the sentencer might be aware of the existence of a relevant prior offence.  Finally, Kelly v Brown 2002 GWD 29-1021 gives some measure of guidance as to how the court should deal with a breach of a supervised attendance order.  These orders, it will be recalled, are imposed at present (with a partial exception in the case of 16 and 17 year olds) only when the accused has failed to pay a fine (although it is understood that plans are ongoing to turn them into a sentence in its own right). For various reasons the court held that in the circumstances it could not be said that imprisonment was not the only option and accordingly it substituted a sentence of 12 months probation together with a requirement that the appellant do 100 hours of unpaid work.  Accordingly, having failed at the relatively simple hurdle of supervised attendance, he was now being offered the chance to do something rather more demanding. What the case does emphasise is that custody will not inevitably follow a failure to do supervised attendance properly. Once the word gets around about this it will be interesting to see what the effect is on a scheme which already has its compliance problems. However, as the appeal court recognises, the terms of s 204 of the 1995 Act – the “no other method of dealing with” provision as it related to a person who has not previously served a term of imprisonment – cannot be ignored. Accordingly the case may be seen as discouraging the up-tarriffing which occurs when someone ends up in custody for an offence that was only worth a fine in the first place and the custodial sentence is in effect imposed because of the accused’s failure to carry out the court’s original sentence.