So wrong, so long?

Latest criminal cases, including bail; contempt of court; sentence discounts; backdating; delay; concert

The Journal, February 2008, page 38

Bail: a new dawn

The new bail laws, which seem to have as their primary purpose that of transferring responsibility if the media think that things have gone wrong from the prosecutor to the judge, are nevertheless with us now. For that reason, attention has to be paid to the case of Gault v United Kingdom, ECHR App no 1271/05, 20 November 2007. The case is one from Northern Ireland, but deals with a matter of European law in connection with bail rules similar to ours.

The appellant had been convicted of murder and for various reasons was to be retried soon. Bail was refused. Essentially what the case says is that the court found the reasons for refusal given neither relevant nor sufficient. It was made clear that reasons for refusal of bail must be linked either to ECHR or to statutory criteria. In particular it was held that the attitude of the prosecuting authorities was not a crucial factor. How could we have been wrong for so long? It is a bit like discounts for guilty pleas, which went overnight from being anathema to mandatory.

Still on the ECHR front, there is Dickson and McNaughton v HMA [2007] HCJAC 65; 2007 GWD 40-692, which revisits something a lot of us thought we had heard the last of, viz temporary sheriffs. It may be sufficient here to say that the court, though not obliged to, followed the English House of Lords (criminal) decision in R v Lambert [2002] 2 AC 545, noting that while there were respectable arguments for either view advanced in the appeal, it was undesirable that there should be conflicting decisions in Scotland and England on the point at issue, retrospective effect. (And see Journal, December 2007, 40.)

Undisguised contempt

When the name of Kyprianou was first abroad in the land, it gave not just a bizarre glimpse into the workings of the court in which it originated, but also raised the spectre of an extremely complicated situation developing here there and everywhere as regards the law of contempt of court. The matter has now been fully considered in Robertson and Gough v HM Advocate [2007] HCJAC 63; 2007 GWD 37-643 and we can all rest a little easier. Among other things, the court held that to appear naked in court was unquestionably a contempt, being not only indecorous but also such as to be capable of offending, upsetting or alarming those present and generally impairing the administration of justice.

More generally, the court held that while it was not disputed that article 6 applied, the requirement of both subjective and objective impartiality had been long recognised at common law. A submission that cases in which imprisonment for contempt was a possibility should be treated in a different way was rejected as impracticable, since that is, potentially, the penalty for all contempt. Further, it was emphasised that the Crown and the court had different considerations in respect of contempt. For the Crown, it had to be decided whether or not the behaviour in question constituted a crime, and if so, whether it was in the public interest that there should be a prosecution. The court, however, was concerned with the maintaining of decorum and the eliciting of truthful evidence. A distinction was also drawn between the sort of contempt with which a judge could deal in a summary way, where the contempt was of the process of justice, and that directed at the judge personally, which should be left to others to deal with.

Abuse from unhappy persons can always be a problem: to veer into anecdote, one recent imprecation “I hope you die in your bed” might even be construed as benevolent in its effect. Practitioners are recommended to read the case carefully, as contempt of court has a way of arising abruptly and unexpectedly and a swift reaction may go a long way to defusing a potentially nasty situation.

The court went on to set out the appropriate procedure where a judge felt able to deal with contempt. It also recognised that in certain cases a remit to a colleague would be necessary. Since this might happen at all levels of the legal system, it was observed that it was desirable that a detailed code of procedure should be devised urgently, with a view to the numerous matters of procedure which might be involved being prescribed by Act of Adjournal.

Qualifying for discount

Another case of particular practical importance is Spence v HMA [2007] HCJAC 64; 2007 GWD 36-629. The appellant was charged with murder. Before the preliminary hearing his solicitor wrote to the Crown enquiring as to what the reaction to a plea of guilty of culpable homicide might be. The response being a negative one, the appellant pleaded not guilty, acknowledging that he was aware of the terms of s 196 of the 1995 Act, with a special defence of self-defence. On the first day of the trial the appellant’s representative told the Crown that he would be willing to plead guilty to culpable homicide but this was again rejected. The verdict subsequently reached was guilty of culpable homicide and the appellant was sentenced to eight years’ detention. He appealed, submitting that the sentence was excessive, one consideration being the alleged inadequacy of any discount for his offers to plead guilty.

The appeal was rejected, the court holding (1) that the appellant could have tendered a plea of guilty to culpable homicide at the preliminary hearing or the trial diet. Even if the Crown did not accept such a plea, it would have been recorded and there would have been no reason for s 196 not to apply; (2) that the letter had been no more than a hypothetical inquiry and did not represent a position held on to by the appellant thereafter. Following HMA v Booth 2005 SCCR 6, the court confirmed that, for discounting purposes, what was required was an unequivocal indication of the position of the offender which was thereafter adhered to throughout. Far from allowing the appeal, the court held that the sentencing judge had erred in mitigating the sentence by virtue of the appellant’s alleged willingness to plead guilty to what he was eventually convicted of, the true position being that no mitigation was appropriate. The sentence was increased to one of 10 years’ detention.

The essence of backdating

Another case about sentencing, this time about backdating, at present not reported is McCafferty or Simpson v HMA; Christie v HMA [2007] HCJAC 76. In these solemn cases the sheriff had decided to backdate not to the time of committal for further examination in custody but to the date of full committal, being of the view that only then was the appellant, with reference to s 210 of the 1995 Act, “on remand awaiting trial”. The approach was characterised on appeal as not in accordance with general practice and in any case the important matter was to ascertain the point at which the appellant was deprived of his liberty. The court emphasised that backdating is a discretionary matter and in these cases the sheriff had fettered his discretion by allowing his interpretation of s 210 to be the decisive matter.

Undue delay from afar

Article 6 of the Convention was invoked again in the case of Burns v HM Advocate [2007] HCJAC 66; 2007 GWD 37-641. The appeal court upheld a sheriff’s refusal of a devolution minute in which the appellant contended that he had been deprived of his right to a hearing within a reasonable time. The appellant had been arrested in England in February 2003, detained, interviewed and released on police bail. The papers were then passed to Strathclyde Police and a petition warrant was served on him in December 2004. On the basis that the Metropolitan Police could not be described as an integral part of the Scottish criminal justice system, the sheriff held that the first official notification had been given to the appellant in December 2004. The court considered that matters might have been different had the English police been acting on a Scottish request. The appellant’s contention that this was a mechanistic approach which did not address the spirit of the Convention, and in particular the requirement that proceedings should be brought without undue delay, was rejected by the court.

Inferring concert

Donnelly v HMA [2007] HCJAC 59; 2007 GWD 40-693 is a successful appeal by three accused in respect of a conviction on a charge of attempted murder on the basis of concert. The victim had suffered a stab wound to the heart consistent with the use of a knife. Of the accused, one had carried and used a baseball bat, one a spring cosh and the third had struck the deceased with a belt. No knife was ever found. Two main considerations arose in the appeal as regards the sufficiency of the presiding judge’s charge. The first concerned the fact that just before the fight started, someone, probably the wife of one of the accused, was heard to say “You are dead”. There was a disagreement between Lords Macfadyen and Marnoch as to whether this remark formed part of the res gestae. If it did, then clearly Lord Macfadyen would be correct in saying that as such it could not support an inference that the accused had formed a common criminal purpose, and the charge should have made this clear to the jury.

It was held that the trial judge’s emphasis in his charge on the question of actual knowledge of the knife, where there was no evidence of such knowledge by any of the accused, far less by all of them, was inconsistent with the only case which the prosecution could make in the circumstances, namely spontaneous concert of murderous scope inferred from the nature of the weapons used. This shortcoming was judged to be productive of a miscarriage of justice. It was also held that given the emphasis put by the Crown at the trial on the remark referred to, the jury should have been particularly directed that it could not be used as a basis for an inference of concert with murderous scope.

LITERARY PICK: THE PERSUIT

Moray McLaren, a well-known Scottish man of letters some half century ago, who could be seen striding up the North Bridge in Edinburgh piebald with snuff, was the author of many books of which perhaps the most interesting to us nowadays is The Pursuit. In it a QC, dissatisfied with the conviction of his client on a charge of murder, somewhat surprisingly puts his junior in funds to go off investigating.

It is a well told story, out of print of course but worth keeping an eye open for.