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New cases, old problems

16 February 09

Latest criminal cases, including alternative verdicts; incest and human rights; delay and human rights; and the time to bring a verdict

by Charles Stoddart

Alternative verdicts

The problem of whether a trial judge is obliged to charge the jury on alternative verdicts which might be open to them on the whole evidence in the case, irrespective of whether the alternatives have been canvassed or been the subject of submission to the jury, continues to rumble on. We have now had four cases in the space of a year, all on the question of murder/culpable homicide.

Coubrough v HM Advocate 2008 SCCR 317, where there was no evidence to support a verdict of culpable homicide, was followed by Mackay v HM Advocate 2008 SCCR 371, where the traditional view was restated: the judge’s obligation to charge the jury is fenced by the way that the case is presented by both or all of the parties; it is not for the judge to speculate or embark on areas of possible verdicts which might arise. Within months, these latter observations were disapproved by a differently constituted bench in Ferguson v HM Advocate [2008] HCJAC 71, where it was held that the jury is entitled to be told of any obvious alternative verdict reasonably available on the evidence, irrespective of the position taken by either side. Now, in Hopkinson v HM Advocate [2009] HCJAC 9, one of the reasons for allowing the appeal was that the approach in Ferguson had not been followed. Perhaps I am not alone in thinking we have not heard the last of all this.

Leviticus and the Human Rights Act

Although we are now accustomed to seeing prosecutions brought under statutes passed by the Holyrood Parliament, it is rare indeed to encounter one where the statute predates the Union of 1707. But such a case has recently occurred, in which the Incest Act 1567 was in issue. That Act was of course repealed by the Incest and Related Offences (Scotland) Act 1986, now re-enacted as ss 1-4 of the Criminal Law (Consolidation) Scotland Act 1995.

It was the Crown that appealed in HM Advocate v BL [2008] HCJAC 77, a case in which the offence dates preceded even the commencement of the 1986 Act. Accordingly the prosecution had been brought under the 1567 Act; it was alleged that the accused had committed incest with his stepdaughter. Such intercourse was made an offence under s 2B of the 1986 Act and its successor s 2 of the 1995 Act; but was it the offence of incest under the old law, which (as legal historians at least will remember) was drafted with reference to the Bible and in particular the 18th chapter of Leviticus?

The appeal court decided (after an extensive examination of the authorities) that the judge at first instance had been wrong to hold that the charge did not disclose a contravention of the 1567 Act. But what is of equal interest is that the accused had argued that the Act was incompatible with the Human Rights Act 1998, a point not decided at first instance but which was developed by way of devolution minute and minute of incompatibility in the course of the Crown’s appeal. The substantive point in both minutes was based on article 7 of the European Convention, which prohibits a finding of guilt on account of any act or omission which did not constitute a criminal offence at the time it was committed. That article of course implies accessibility to the relevant legal rules, and foreseeability of the legal consequences of the conduct in question.

When the 1567 Act was passed, the only version of the Bible then in use was the Geneva Bible. Accordingly, that was where one had to look for the relevant chapter. But if, as in the present case, one was prosecuted in Kilmarnock High Court in 2007/2008 for offences allegedly committed between 1976 and 1982, how would one find out whether one’s alleged incest was criminal under the 1567 Act? The court noted that there is only one copy of the Geneva Bible in the National Library of Scotland in Edinburgh.

The court rejected the respondent’s arguments that the law was not reasonably accessible and was formulated without sufficient precision. A person such as the respondent would seek legal advice on whether intercourse between stepfather and stepdaughter constituted incest; such advice would be based on the standard criminal law texts, which were unequivocal on the point. The true nature of the offence was foreseeable; and so the case was remitted to the trial judge to proceed as accords. No need to pore over the Geneva Bible; no need for further research in Scotland’s historical archives.

The reasonable time guarantee: again

The provision in article 6(1) of the European Convention that a person accused of crime is entitled to trial within a reasonable time has been productive of much litigation, not just in Scotland but elsewhere. Some of that case law has been concerned with identifying, for the purposes of the article, the point at which time starts to run; the latest such case was decided by the Privy Council at the end of last year. Burns v HM Advocate 2009 SLT 2 is an important reminder that it was the UK, rather than Scotland or England, which became a party to the Convention and, irrespective of internal constitutional arrangements, has the obligation to secure the rights set out there.

At first instance, Sheriff Mitchell at Glasgow had decided to refuse a devolution minute brought by a person indicted on five charges, each broadly concerned with child pornography. The accused had been arrested in England and extensively interviewed in Luton on 18 February 2003, after his house in Glasgow had been searched under warrant a few days before and his computer examined by the police. But the English police were uncertain how to proceed as a matter of jurisdiction, although they made it clear that the accused should be charged. The accused was therefore released on police bail, while the case was reported to the CPS. They thought that the Scottish courts had jurisdiction; the papers were transferred to Strathclyde Police; and this culminated in a report to Crown Office, the issue of a petition warrant and a first appearance thereon in Glasgow on 17 December 2004.

Sheriff Mitchell decided that for the purposes of article 6(1), time had only begun to run from that latter date. This was a Scottish prosecution and since the Lord Advocate had been completely unaware of what had been going on in Luton, it could not be said that the accused had been “charged” there. The accused unsuccessfully appealed to the High Court (2008 SCCR 105), but the Privy Council reversed both the High Court and the sheriff, holding that the events which started in Luton and ended in Glasgow Sheriff Court were in effect a continuum; it was artificial to ignore everything which happened before December 2004, having regard to how the guarantee set out in Stögmüller v Austria (1969) 1 EHRR 155 is to be interpreted. From February 2003 onwards, the accused was in a continuous state of uncertainty about his fate. The case now goes back for trial, at the end of which the issue of whether there has been unreasonable delay and, if so, what remedy is appropriate, can be addressed (Speirs v Ruddy 2008 SLT 39).

Jury under pressure

Although it is competent for a jury to give its verdict after consultation in the jury box without the need to retire (Criminal Procedure (Scotland) Act 1995, s 100(3)), juries are almost never told this. Instead, it has become standard practice for judges/sheriffs to invite the jury to retire to consider its verdict and to say specifically that the verdict can be returned “at any time”. This might be in a matter of minutes, hours or even days depending on the circumstances. Under the present law, jurors do not have to be secluded in a hotel if their deliberations extend beyond the end of the court day, no doubt to the great relief of the Scottish Court Service.

If it was ever in doubt in modern times, what the judge/sheriff should not do is to say anything which might be construed either as putting pressure on the jury to deliver its verdict by a particular time, or as indicating that all the jurors have to do is to vote, rather than discuss the evidence. This was one of the things which went wrong in Dyer v HM Advocate [2009] HCJAC 7, in which the late Lord Dawson was held to have erred in making a number of unfortunate remarks on the last day of a rape trial. At the beginning of the day, as counsel were about to address the jury, he remarked inter alia that he “did not imagine that speeches would take very long”; “certainly within the hour for both of them”; that it had been a very short case with only six witnesses; and that he expected that the jury would be able to retire before lunch.

After the advocate depute had spoken for about 40 minutes, defence counsel respectfully declined the judge’s pointed invitation to limit his remarks and spoke for around 45 minutes. Thereafter, in charging the jury, Lord Dawson said (in the context of the competency of a majority verdict) that there was no need for them to persuade each other to any particular point of view; and that lunch would still be available, whether they came back before or after 1 pm. The jury retired at 12.26 pm, returning with a verdict of guilty 37 minutes later.

It was the cumulative effect of the judge’s remarks which caused the appeal court to hold that that there was a serious risk that the jury would think they were expected to reach their verdict quickly. The court indicated that the conviction could not stand, but invited submissions at a later date on the disposal of the appeal.

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