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Court of review or court of appeal?

1 February 02

Latest criminal cases, on statements, trials within a trial, fairness, nobile officium, warrants, appeals, road traffic and human rights

by Lothian, Andrew

Sheriff Andrew Lothian rounds up issues including mixed statements, warrants and appeals against sentence in his ongoing series which is essential reading for all who practise in the criminal courts

We are keeping a close eye on the English courts these days.  This is from The Guardian of 5th January.  Lord Justice Brooke is dealing with a forseeability point.   “Anyone who reads newspapers is familiar with the distressing psychiatric disorders suffered by released prisoners in well known miscarriage of justice cases.”   “Here is a man who believes what he reads in the newspapers “ used to be the familiar response of the heckled soapbox orator. The Guardian report might be wrong, of course, but if it were, would not that rather prove my point? But let us to our muttons.

Mixed statements

Probably the most important case to be decided recently, and by nine judges at that, is McCutcheon v HMA 2001 GWD 40-1507, which is about what have come to be known as “mixed statements”. Essentially what the appellant sought was a restatement, or rather reformulation, of the second rule enunciated in the leading case of Morrison v HMA 1991 SLT 57 at page 62, to the effect that the contents of a mixed statement could be led by prosecution or defence. It was argued that otherwise were the Crown not to agree to the statement being put and were the defence anxious that this should be done, this would necessitate the accused giving evidence, which would compromise his right not to. Obviously anyone involved in a mixed statement case will want to reread the rules as laid down in McCutcheon beforehand, it not being something that could come at you out of the blue. However, it might be convenient to restate them here:

  1. It is a general rule that hearsay is not admissible as evidence as to the truth of what was said.
  2. Evidence of what an accused had said is generally admissible in exculpation, and can be relied on by the defence only to show that it was as said or to show the accused’s attitude at the time it was said, as part of a more general picture.
  3. Exceptionally, where the Crown leads evidence of the statement for purposes of incriminating the accused, the defence is entitled to use any (other) part of the statement for the purpose of qualifying, explaining or excusing the statement against interest.

The Court went on to make two further important observations. First, the trial judge will have to direct the jury about what weight it should give to a statement made not on oath and not subject to cross-examination. Secondly, where the defence does lead evidence without objection of a statement that is wholly or partly exculpatory, the trial judge will have to remind the jury that the statement is admissible only for the purposes set out in (2) above.

Trial within a trial

The “ trial within a trial” procedure continues to cause problems. It is a cumbersome and time-consuming affair and may well be capable of producing its own forms of injustice in as much as what the jury eventually hears is, for better or for worse, the witnesses’ second version of the evidence. There is a concern, too, that juries may be sent out and kept waiting for days while the court goes through the first version of the case. It is difficult not to believe that the present situation is the best that can be devised and it looks as if some sort of preliminary hearing will have to be introduced when the point is to come up. That would, of course, require legislation. For the moment, let us have a look at the case of HMA v Jenkinson 20012 GWD 33-1305. Following Thomson v Crowe 1999 SLT 1434, Lord McEwan held that unless the rules about police interviews had been blatantly broken, public interest required that the court should be very slow to hold evidence of that sort inadmissible and that having heard the interview tape, in the instant case the court had no reasonable doubt that the evidence was admissible. His Lordship commented on the differences in procedure between a summary case like Thomson and the present, solemn, case, where the procedure had involved the jury being absent, in the course of the crown case, for almost a week.

Informed reasonable observer

I wonder whether “The Pilgrim’s Progress” is still widely read.  To its splendidly named cast of characters (Mr Worldly Wiseman et al) today we might have to add Mr Informed Reasonable Observer, a chap who turns up in the case of Clampett v Stott 2001 GWD 33-1307. This was a summary trial in which at the close of the Crown case there was lodged a number of papers in support of an alleged bail aggravation, including among other things a list of previous convictions. It was argued on appeal that even if this were done carelessly the impression would be given that justice was not being done. The case had its specialities, in particular in respect that the Crown sought to withdraw the papers before the sheriff was aware of the said list. However, the underlying reason for refusing the appeal seems to have been that the IRO would not have thought that there was any chance of bias on the part of the sheriff. On the assumption that the information in the possession of such an observer would include knowledge of the substantive law as well as a full appreciation of the true facts, this attractive, if mythical, figure would in fact appear to be no different from an appeal court judge and may, indeed, be jurisprudentially unnecessary. In Penman v Stott 2001 GWD 36-1336, a previous conviction was disclosed by a police officer while giving evidence, but the appeal court held that there had been no miscarriage of justice in as much as this did not come about as a result of a deliberate or negligent act on the part of the Crown.

Nobile officium

Another procedural case of some interest is McBride, Petnr 2002 GWD 2002 which confirms the general proposition that the nobile officium procedure should be used only to prevent injustice in unusual or unforeseen circumstances and never when its use is in conflict with a clearly expressed or implied statutory provision. In some respects similar is the case of Newall v McFadyen 2002 GWD 40-1515, which demonstrates that a bill of advocation is to be reserved for very special circumstances, in which an irregularity in preliminary procedure in a summary case will cause the sort of injustice that cannot be cured by a subsequent bill of suspension. In this case, the bill, taken against a sheriff’s refusal to grant leave to appeal against the dismissal of a plea to the competency, was itself declared incompetent.


There has been much concern expressed recently about warrants; Swift v Gilchrist 2001 GWD 39-1452 however finds the appeal court considering the admissibility of evidence about the result of a search without a warrant. The conviction was for carrying a knife in a public place and the circumstances were that the police had searched a group of youths, including the appellant, following a recent report that someone had a firearm and that a group of youths was involved. The matter was held to be one for the presiding judge, there being ample evidence that the police had acted promptly and in good faith.

Appeals against sentence

There is a good swatch of reports of appeals against sentence to be found in 2002 GWD 1. Thomas v HMA (-24) is a culpable homicide case in which it was argued without success that the sentence was excessive in respect that the trial judge had not given sufficient weight to the fact that the victim had twice declined medical help which might have saved his life. McLeod v HMA_(29), which did see a sentence reduced from four years to eighteen months, is a curious one in respect that while the charge to which the accused pleaded guilty involved cocaine to a value of £2,800, the plea was tendered and accepted on the basis that the appellant had been buying amphetamine for friends at a price of £75. In Ali v Ritchie (-30) there was a successful appeal against a prison sentence of six months for being concerned in the supply of cannabis where the appellant was a first offender with a good background report. The substitution of the maximum period of community service can probably be regarded as exceptional. Finally, both Dillon v HMA (-36) and Gallacher v Watt (-37) are successful appeals against sentences which the appeal court, especially in the latter case, do not seem to have regarded as wrong. Both may be worth a look for any appellant who seeks to argue that a more lenient sentence, if not better, would have been just as good. Taken along with the case of Barrie  v HMA (-31) in which a sentence of five years imprisonment was substituted for one of six, these cases would appear to indicate that the court is on occasion willing to act as one of review rather than appeal. 637

Road traffic

On the road traffic front Goodson v Higson 2002 GWD 1-55 was an unsuccessful attempt at an appeal against conviction on the basis that the appellant had not been lawfully arrested before the various subsequent requirements were made. The circumstances were that an off-duty police officer had smelled alcohol on the appellant’s breath and had subsequently seen him driving rather badly in a car park. He had alerted the cashier, who asked for and received the appellant’s car keys, and telephoned the police. It was argued, rather strangely, that the police officer had thus made a citizen’s arrest. The appeal court held that he had not but indicated that in the circumstances he would have been entitled to. Young v Barbour 2001 GWD 39-1488 is a so-called “road rage” case which resulted in a conviction for dangerous driving. The facts appear to be that the accused drove very close behind the other car involved while making angry gestures for a distance of something under a mile. The appeal court indicated that while too much emphasis should not be put on the fact that the behaviour was deliberate, such a factor should not be left out of the general assessment of the nature and quality of the appellant’s driving. There is something teasing about the (possibly) implied notion that one could deliberately drive without due care and attention, which would have been a possible alternative. The practical result would seem to be that anyone who deliberately creates a material risk, which would not otherwise exist, will be in danger of being convicted of having acted dangerously, which is surely as it should be.

Human Rights Act

Finally we come to the case of Stevens v HMA 2001 GWD 1361, in which Lady Paton was asked to make a declaration of incompatibility in terms of sec.4 of the Human Rights Act 1968. The two pieces of legislation involved were the Civic Government (Scotland) Act 1982 s 58, which involves the charge of possessing tools from which it could be reasonably inferred that the appellant intended to commit theft and the European Convention, art 6. It was argued that in as much as the onus was on the appellant to prove that his possession of the tools was not for the purpose of committing theft, his right to silence under art 6 was infringed. The minute was dismissed.  It was held that a devolution issue did arise and that since the appellant had not lodged the appropriate minute in terms of the Act of Adjournal the application was incompetent. The court also gave its opinion that there was nothing in the relevant legislation (sec 4 of the Human Rights Act and s307 of the Criminal Procedure (Scotland) Act) to suggest that a court of more than one judge had to be convened to decide whether legislation was compatible with Convention Rights. And there the matter rests. I think.