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The limits of belief

20 October 08

Latest criminal cases, including reasonable belief; partnerships; judicial interventions; child witnesses; public indecency

by Andrew Lothian

What follows death

The style of the Edinburgh Book Festival brochure might be described as infectious, but not in a good sense, so… “What better way to start the day than with Scotland’s best-loved appeal court as it grapples with the concept of causing death by careless driving?” So too, it must be said, was the Fringe brochure: “Causation and negligence? It was too much for H L A Hart and a host of other jurisprudes, but that hasn’t deterred the legislature from putting this new show on the road”.

I have previously drawn attention to Sheriff Linda Ruxton’s excellent paper on this subject and I fear that we shall be looking at it again soon. However, just one thought: what is to happen to culpable homicide if, as is suggested – and it is the stated intention of Crown Office routinely to prosecute careless driving on indictment (in spite of what the English sentencing guidelines suggest by way of penalty, viz in many cases community service) – sentencing is to be on the basis of consequences rather than culpability? What happens when someone is punched once by their best friend and hits their head, fatally, on the pavement? Or indeed, to the parent whose momentary driving carelessness is followed by the death of their child? Are the remaining siblings to be condemned to five years or so of prison visiting? It looks like that curious belief that the courts can somehow turn the clock back as regards harm done, by imposing a swingeing sentence, has struck again.

Perhaps it is worth repeating that dangerous driving is a crime of intention and careless driving is not.

It is thought, unless you are an unreconstructed Benthamite, that there is a difference. Perhaps someone might like to define the mens rea of this crime, bearing in mind that the operative words are “causing death” and not “careless driving”?

Reasonable belief

But on to some decided cases. Lieser v HMA [2008] HCJAC 42; 2008 GWD 26-412 clears up what for some of us has been a bit of a difficult area, namely, in cases involving provocation or self-defence does the accused’s belief have to be an honest or a reasonable one? Since Drury v HMA 2001 SLT 1013 there has been a school of thought which has subscribed to the belief set out in the appellant’s argument in Lieser. This is to the effect that when one is dealing with a crime of intention, the critical matter is whether the accused has the necessary mens rea. Accordingly, any belief that the accused had, had only to be genuine. The importance of reasonableness was therefore confined to deciding whether or not a stated belief was credibly and reliably stated to have been held.

The appeal court, however, held that longstanding cases such as Owens v HMA 1946 SLT 227 and Jones v HMA 1990 SLT 517 were binding authorities for the proposition that a person who invoked any defence involving a belief that he was in imminent danger had to have reasonable grounds for this belief. Drury, it was said, did not cast any doubt on this. As I think we can exclude a situation in which an accused holds a belief that is genuine but not reasonable, what we seem to be left with if the defence is to succeed is either a reasonable belief that is in fact well founded, or a genuine but mistaken belief that is nevertheless based on reasonable grounds.

The end of personality Balmer v HMA [2008] HCJAC 44; 2008 GWD 26-410 deals with a situation which, one hopes, will not become more common in our present difficult times, namely what remains of a partnership after its dissolution. Three individuals petitioned the nobile officium for declarator that an indictment brought against a dissolved firm in which they had been partners was incompetent. Resisting this, the Crown involved the case of Gordon v Douglas, Heron & Co (1795) 3 Paton’s App 428 as well as a couple of other decisions dating from the last century, but to no avail. The court held that the juristic personality of a partnership terminated at dissolution. There was said to be no support in the authorities for the idea of a limited degree of personality continuing, and in any case such an idea was, juridically, hard to understand. The court felt that the structures and principles of the law relating to the creation and extinction of a legal personality were not to be lightly departed from.

It was however observed that it was undesirable that the prosecution of a criminal offence could be thwarted by dissolution either by the partnership itself or otherwise, although in common law cases at least it might be possible for the partner actually responsible to be prosecuted in his personal capacity. It is thought that this might be preferable in any case, lest partners finding signs of criminal activity in their business should, by virtue of reporting same, find themselves in the dock.

By the court

Mulligan v HMA [2008] HCJAC 32; 2008 GWD 24-381 is an appeal arising out of a conviction for raping a girl of 14. The grounds were based on what was submitted, without success, to have been conduct by the judge which denied the appellant a fair trial. One part of the appeal was based on an assertion that certain evidence was only before the jury because of certain actions by the presiding judge. This was rejected as a matter of fact, but had this not happened it is possible that the appeal court would have had to give the ground rather more prolonged consideration. Certainly traditional wisdom is that, at least with a jury present, the judge should intervene only to clear up ambiguities. Further, in respect of an intervention by the judge during the cross examination of a police officer, while the appeal court categorised this as no more than legitimate concern in the manner of cross examination, it was also said that a better course might have been to have asked the jury to withdraw until the issues were resolved.

Now, it is clear that too many interruptions from the bench may lead to a successful appeal. However, a question does arise when the judge feels that the prosecution is not properly safeguarding the interests of one of their witnesses through not objecting to questions or to the manner in which they are put. There may of course be a reason for this; tactically it may suit the prosecutor either to have the defence seen to bully a witness or to leave a capable witness to take care of him or herself. Least said, soonest mended, is probably the watchword here; certainly it is easier to ask the jury to withdraw while a point is settled if the objection comes from the prosecutor and not ex proprio motu from the judge.

Inside the jury’s mind

One sort of question which the appeal court sometimes has to resolve is what we might call the “What if?” situation. By this is meant whether a trial might have turned out differently if a certain thing which did not happen, had been allowed to happen. Thus in Dye v HMA [2008] HCJAC 40; 2008 GWD 24-380 the appeal arose out of the sheriff’s refusal to allow certain parts of the appellant’s application to cross examine two children whom the appellant was said to have abused. In this case it was held that since the jury had already been made aware of discrepancies between what the witnesses told the police and what they said in evidence and had been reminded of this by the sheriff, and had still found the witnesses credible and reliable, it could not be said that it was likely that the introduction of additional material would have affected the jury’s assessment as regards the essence of the charge. That being so, it seems that it was not necessary to consider whether or not the refusal was of itself correct.

Shameless indecency’s legacy

Anyone who thought that our law about sexual offending was perhaps a little more complicated than it need be might find their view reinforced by the case of Clark v HMA [2008] HCJAC 35; 2008 GWD 24-383, in which Lord Carloway dissented in part. The appellants had pleaded guilty to the charge of public indecency. They argued that this offence neither was such that an extended sentence could be imposed nor such that registration on the sex offenders register was competent. The majority of the court accepted this, Parliament having drawn a distinction, which it was not for the courts to elide, between public and shameless indecency. Lord Carloway, however, took the view that public indecency was a sub-species of what had come to be known as shameless indecency and further, if the courts acted in accordance with Parliament’s intentions, since public indecency had to be regarded as falling either under lewd, indecent or libidinous behaviour or shameless indecency, anyone convicted thereof was liable to be made the subject of notification requirements.

I hope that I am not one for calling for legislation where the common law is doing its job satisfactorily, and archaic phrases about panels tholing their assize give me nothing but pleasure. It may be time, however, that something is done.

Literary pick: Russell

This is George Lyttelton (Humph’s father) writing to a friend about a visit to the law courts:“…the bravest man I ever heard of who, as Lord Russell of Killowen began his summing up, said to him: ‘Make it snappy, old cock.’”


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