Video evidence now a nuisance?

by Andrew Lothian

Latest criminal cases, including video evidence; delay; leniency; breach of the peace; search warrants; corroboration; sentencing procedure

The Journal, February 2003, page 31

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There is some law or other, along the lines of Murphy’s or Sod’s, to the effect that there is a certain period after which an innovation which had been useful becomes a nuisance. It may be that this stage has been reached as regards the uses and abuses of video evidence in court, be it security or interview. However, for the present, let us content ourselves with looking at Rooney v HMA 2002 GWD 31-1059, which is about sufficiency of evidence. The appellant had been charged with being concerned in the supply of drugs to her boyfriend immediately after the visit that comprised the Crown evidence. The defense argued that the Crown had not excluded the possibility of the drugs having been in the boyfriend’s possession when he entered the visiting area. “What’s the chance of that happening?” as Harry Hill would say. Anyway, in delivering the opinion of the court, Lord Kirkwood said: “The principal evidence against the appellant was the CCTV video recording…” and later “We agree with the trial judge that the jury would have been entitled to interpret it as evidence of a clandestine transaction taking place….” Now up till now at any rate there has been a school of thought that says that CCTV evidence is in theory only illustrative of what the witness who speaks about what seems to be shown is saying, and that what the jury has to ask itself is whether or not it agrees with that conclusion. Here, however, the appeal court may be saying that it is for the jury to look at the videotape and decide of itself what it is seeing. Of course the jury always has had to do this, if only for the more limited purpose of checking the oral testimony which it has been hearing, but the appeal court here seems to be saying that the jury can look at a video and decide what it shows. This, it had hitherto been thought, puts the jury in the position of a witness and as such is inappropriate. There is not space here to develop the matter and it is expected that in practice the jury will almost always be guided through the tape by someone who purports to say what it shows. There is a difference, of course, between a recording of a crime happening e.g. a bank robbery and one of something, as in the present case, which could be a crime happening. However, until such time as a trial judge says to the jury “Here’s the tape; now work out what’s going on and in particular decide if you think the bloke with the bag marked “Swag” is the accused” and someone then appeals it does not seem likely that we will get a clear and comprehensive survey of the law and the videotape. Is it, for example, appropriate for a jury to take into account the demeanour of a person being interviewed on tape to see if they believe what is being said? But it is time for us to turn to the very familiar topic of delay.

Delay

Goldie v HMA 2002 GWD 38-1249 is probably a case decided very much on its own facts, though still worth reading. Gillespie (1279) and HMA v R (1280) are of rather more general importance. In the former case the High Court observed that in appeals based on the decision in Anderson v HMA 1996 SLT 155 the court should invite those involved to make appropriate comments by a certain date in order to progress appeals timeously, although in the instant case it was accepted that the delay of some five years in concluding the appeal was predominantly the responsibility of the court. The appeal court held that such a delay had resulted in a breach of the appellant’s rights and in respect thereof the punishment part of the life sentence imposed was reduced by six months. The latter is a case heard by the Privy Council and addresses the question of what is the proper remedy when a case has not been brought to trial within a reasonable time. It is therefore a “must-read” case. It is also one in which three Scots went one way and two English the other. Procedurally, Drummond v HMA 2003 GWD 1-15 is also likely to be a one-off. It was an appeal against conviction on two charges of embezzlement and one of attempting to pervert the course of justice on the ground that a material part of the trial had proceeded outwith the presence of the appellant. In the course of the appellant’s own evidence a debate about admissibly had taken place and the appellant had been removed from the court while this happened. In allowing the appeal, the court held that the terms of s 92(1) of the 1995 Act were peremptory and that a miscarriage of justice had thus arisen even without the appellant being able to demonstrate actual or possible prejudice. At a subsequent hearing the Crown’s motion for authority to bring a new prosecution was refused, one particular ground for the refusal being the failure of the Crown to take steps at the original trial to point out that it was not competent for the trial to proceed in the absence of the accused.

Leniency

There are few things which cause so much concern to the public as the perceived leniency of the courts in cases where death has been caused by careless, as opposed to dangerous, driving. Understandably, the focus of public attention will be the consequences rather than the quality of the criminal act. In the light of this, it is worth going to Ross v HMA 2002 GWD 39-1314. This was an appeal (unsuccessful) against a sentence of three years imprisonment imposed in respect of charges of causing death by careless driving and also failing to provide a specimen of blood. In confirming the sentence, the appeal court did state that the presiding sheriff has misdirected himself in concluding that the nature of driving was not a relevant consideration when sentencing on the careless driving charge. Accordingly it is confirmed, if confirmation is necessary, that the matter is to be approached in the same way as death by dangerous driving, that is to say by paying particular attention to the manner of driving, so that a slight degree of carelessness will be visited with a less serious penalty that a gross degree, albeit that the consequences are the same.

A rare case

A retired sheriff of my acquaintance was always chary about spending too much time worrying about things which seldom happened, so that he might, possibly, think that we were legislating for rare birds in paying any attention to the case of Arthur v HMA (No 2) 2002 GWD 38-1253, which poses the question what is to be done if the judge imposes a sentence without the Crown having moved that he should do so. Actually my feeling is that as a student of legal history he might welcome this reminder of the role of the Lord Advocate in solemn proceedings and of a reminder that, as the office may seem to be undergoing elements of downsizing, the situation remains that if the Crown does not move for sentence the Court is powerless to pronounce one. (Incidentally did anyone see the episode of Judge John Deed in which the eponymous hero reacted to a verdict of acquittal by locking up the accused?) Arthur was not of course a case in which the Lord Advocate, with a view to restricting the pains, chose in the public interest not to require a sentence, it was rather a case of the judge, in a capital case, moving rather quickly.

Breach of the peace

It is always interesting to see what is happening on the breach of the peace front, which brings us to the linked cases of Hamilton (13) and McMillan (14) both against Higson, reported in 2003 GWD-1. In each of these cases, Lord Cameron of Lochbroom dissented, although the disagreement in the court seems to have depended on whether or not the judge in question found that the conduct proved amounted to such as to be a catalyst for a serious disturbance, there being no findings in fact of actual upset caused. The appeals against conviction were both successful and the whole thing does highlight the difficulty in fixing a boundary between legitimate protest and public disorder. I suspect that this is really because the two are not truly opposites and in some circumstances legitimate protest will cause public disorder. How far can you go in offending fascists, say?

Search warrants

Search warrants have been under consideration a lot recently and here is another one, Crawford v Dyer 2003 GWD 1-18, where the appellant, charged with fraud by creating and presenting fictitious letters as to his creditworthiness sought suspension of eight warrants. There had been a previous search and the appellant now claimed that he should have been given an opportunity of opposing the application in respect of a further search, that the sheriff granting the warrant should have made inquiries which would have revealed the existence of the prior search and thus led to the warrant being refused, and that sheriff had been misled by the fact of the previous search not being mentioned in the petition. The court held that there were pretty obvious good reasons for not giving notice that premises were to be searched, that there was no requirement for a sheriff to carry out investigations where the grounds are set out properly in the petition and that there was no basis for the appellant’s contention that it was what had been found in the first search that was the cause of the later applications.

Corroboration

Just when it seems safe to go back in the water of corroboration another fin breaks the surface. In Gracie v HMA 2003 GWD 1-10, a case involving allegations of lewd, libidinous and indecent behaviour towards a child, the Crown had sought at trial to rely for corroboration on evidence from the appellant’s sister that he had told her in a telephone conversation that he would be pleading guilty. The appeal was successful, the court holding that the trial judge had been wrong to conclude that the remark, not made in response to a specific allegation, could reasonably amount to corroboration of the charge, so that the jury were really left to speculate about the extent and meaning of the statement as an admission of guilt.

Corroboration and Moorov turn up again in H v HMA 2003 GWD 2-44, where an interesting point about the jury’s verdict had to be considered. Put briefly, the verdicts in respect of the charges, (two unanimous guilty, one majority guilty) demonstrated that in one case a minority of the jury must have failed to follow the jury must have failed to follow the judge’s directions properly. The appeal court rejected the appellant’s submission that the jury should have been sent out again to reconsider, it being sufficient that a majority had followed the said directions properly.

Finally, Stephen v Chief Constable, Grampian Police 2003 GWD 2-49, although a civil case, may be of interest to criminal practitioners. It was an appeal against a decision of the Chief Constable to treat as lost or abandoned property a sum of  £2,700.91 which had been taken from the appellant who had been travelling in a car with three other people when it was stopped by the police. 50 ecstasy tablets and a large sum of money were found on one of the others and it was suspected that the money found on the appellant was associated with drug dealing. During interview, he had declined to answer questions about who owned the money. After proof, the sheriff held that on a balance of probability the appellant had satisfied the court that the money had been given to him by his parents (who gave evidence to that effect) and that in view of the fact that the appellant had been told of his right to silence before he was interviewed it might be unduly harsh to draw adverse inferences from his silence.

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