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Getting in quick

18 February 13

Latest criminal cases, including sentencing discounts and uplifts; dock identification; Moorov rule; taking of samples from accused; withdrawal of guilty plea

by Frank Crowe

It is with trepidation that I take over this column so ably composed by my former shrieval colleagues Charles Stoddart and Andrew Lothian. My approach will, of necessity, not reach the scholarly and academic levels of my predecessors but hopefully will contain some practical views and comment. As usual, there is no shortage of appeal decisions to comment upon.

The facts of Murray v HM Advocate [2013] HCJAC 3 (12 December 2012) have already been dealt with comprehensively (Journal, January 2013, 21). It is, however, a landmark case, highlighting that any discount is a matter for the sentencing judge, that a s 76 letter needs to be tendered at the earliest possible stage if it is to attract the full discount of one third, and that a sentence may be increased by the appeal court in the context of a defence appeal.

The s 76 letter had been submitted on the appellant’s 55th day in custody following full committal. The grounds of appeal did not challenge the starting point for the sentence but contended that a discount in the region of a third ought to follow an s 76 letter. Leave was granted at the second sift and the appeal was heard by the Lord Justice General, the Lord Justice Clerk and Lady Paton.

The appeal was refused, and the sentence increased from seven years to nine years six months’ imprisonment.

Future appeals are unlikely to make it through the sifting process on the ground that an inadequate discount was applied.

Murray, doubtless, will have a significant downward effect on the workload of the appeal court. It remains to be seen how it will impact on the early resolution of cases at first instance.

At summary level, such is the volume of work that, in the writer’s humble view, agents and accused need to know they might expect a certain discount if an early plea is tendered.

As a result of Murray, agents will be expected to tender s 76 letters at the earliest possible stage if the full one-third discount is to be given. In some cases, however, notably drugs cases involving white powder, it must be prudent to have confirmation from an analysis of the type of drug first. Murray does reiterate what was said in Thomson v HM Advocate 2006 SCCR 265, that the later a plea is tendered to make enquiries into the strength of the Crown case, the less discount can be expected.

The vexed question of dock identification has featured in a number of decisions recently and is a topic I am likely to return to.

In Brodie v HM Advocate [2012] HCJAC 147 (16 November 2012), where the appellant was one of three accused convicted of being concerned in supplying heroin, evidence came from a police officer who was part of a surveillance exercise. She had not known the appellant previously and was not required to take part in an identification parade involving him. No objection was taken when the officer was asked to identify the appellant at trial.

The grounds of appeal challenged the leading of, and the judge’s failure to direct the jury on the specific dangers of, dock identification evidence. The Lord Justice Clerk said at para 19 that it would have been sufficient if the trial judge had pointed out that the person whom DC Wilson said she saw was not someone she knew; that over 15 months had elapsed between that sighting and her identification in court; and that she had not taken part in a formal parade. The judge should have directed the jury that a dock identification lacked the safeguards inherent in a parade through the presence of stand-ins; to bear in mind that when identified, the appellant was sitting in the dock between two custodial officers (Holland v HM Advocate [2005] UKPC D1, para 47); and finally, that it was entirely for them to decide whether these considerations gave them any cause to doubt the reliability of DC Wilson’s identification.

The court held that these misdirections did not give rise to a miscarriage of justice, since there was a sufficient and compelling circumstantial case against the appellant and his identification by DC Wilson was “entirely peripheral”.

The Holland case was central to the appeal in NC v HM Advocate [2012] HCJAC 139 (18 September 2012). The appellant was charged with an assault to severe injury and permanent disfigurement alleged to have occurred in a nightclub. The appellant had not been known to any of the five witnesses who spoke to the incident. The complainer identified the appellant from a selection of photographs, but no identification parade took place.

At a continued first diet in November 2011 the appellant sought the holding of an identification parade. The sheriff ruled the application too late as the trial was due to take place the following week. A bill of advocation in respect of this decision was refused by the appeal court in May 2012. A preliminary issue minute and devolution minute were then lodged seeking declarator that the Crown had no power to seek a dock identification at trial. Both minutes were refused and appeals taken.

Reliance was placed on the speech of Lord Rodger in Holland at para 41, suggesting that in an extreme case, a judge might conclude that admitting dock identification evidence would inevitably render the trial unfair. However, the court took the view that this was not an extreme case and refused to look at witness statements which demonstrated discrepancies as between the descriptions given by the eyewitnesses to the police, since that might not be the oral testimony at trial. The court highlighted the stringent safeguards available at trial, including the requirement for corroboration, the availability of cross examination, the opportunity to address the jury on the weight of evidence, and the standard jury directions on the possible weakness of eyewitness identification, particularly dock identification.

Leave to appeal to the Supreme Court was refused on 29 January.

In MR v HM Advocate [2013] HCJAC 8 (16 January 2013) the appellant had been convicted inter alia of an indecent assault on his daughter and the rape of a niece. A full bench reaffirmed that it was looking for “the conventional similarities in time, place and circumstances in the behaviour proved in terms of the libel… such as demonstrate that the individual incidents are component parts of one course of criminal conduct persisted in by the accused” (para 20). Although the charges were five years apart, one involved an assault with the intention of having intercourse and the other a rape. Penetration in the latter charge was corroborated by “near penetration and an expressed desire to achieve it” in the former. These convictions were against a backcloth of other charges proved, involving young female relatives attacked when the appellant was alone with them.

In Lukstins v HM Advocate [2012] HCJAC 146 (14 November 2012) a full bench overruled Cowie v HM Advocate [2012] HCJAC 111. The appellant had been detained in respect of an alleged rape. He was interviewed, then arrested. Sixteen hours later he was charged with rape, following which police took a mouth swab from him. An objection to the leading of DNA evidence derived from the swab was repelled and the appellant convicted at trial. On appeal, he relied on Cowie, where a swab taken after the accused had been charged was held inadmissible.

A unanimous court held that s 18(6A) of the 1995 Act was clear and unambiguous, and should not be read so as to limit an officer’s power to taking samples prior to charge.

The decision reflects the actuality that procedures at the police station charge bar are designed to produce a computerised audit trail of steps taken during detention and arrest, although individual officers may carry out certain steps at different stages of the procedure.

It remains to be seen whether this aspect of police powers will be the subject of further legislative activity following Lord Carloway’s review. It has taken several cases to reach this point of clarification; further amendment to s 18 may cause confusion.

Blockley v PF Cupar [2013] HCJAC 2 (9 January 2013) highlights how problems may occur taking instructions in the corridors of the court on a busy day.

The appellant and her sister were charged with assaulting another woman. CCTV evidence was obtained by their solicitor a few days before a continued diet, but despite efforts, he was unable to see his client until at court. In a brief discussion he said his interpretation of the evidence was consistent with a plea of guilty rather than self-defence. The appellant pled guilty to an amended charge and the Crown accepted the co-accused’s plea of not guilty. Later that day the appellant, having had second thoughts, contacted her solicitor as she wished to withdraw her plea. The solicitor very properly withdrew from acting. At a subsequent hearing, new solicitors failed to persuade the sheriff to allow the plea to be withdrawn.

A bill of suspension was raised and the original solicitor provided a full statement in which he accepted that it would have been better for his client to have seen the CCTV footage before tendering the plea.

The appeal court repeated that withdrawal of a plea of guilty would be permitted only in exceptional circumstances. These would rarely occur when the plea had been tendered on legal advice and with the accused’s authority; but here there was clear prejudice. The bill was passed and the conviction quashed.

The appellant, aged 26, had no previous involvement in court procedures. She had been accompanied by her mother at earlier stages but had attended court on her own that day. Earlier meetings with her solicitor had concentrated on securing legal aid, and the discussion prior to tendering the plea had been brief. The CCTV evidence was not conclusive of her guilt, and might be regarded as consistent with self-defence, which she had expressed at the outset.

This case should serve as a warning to agents when dealing with cases under pressure. In most cases the court will allow further time to consider matters if a plea may be forthcoming and there is time to call the case again prior to trial.

Frank Crowe, sheriff at Edinburgh

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