Criminal Evidence and Procedure: An Introduction 9781474494670

A practical guide to the conduct of criminal cases in Scotland Centred around The Criminal Procedure (Scotland) Act 1995

148 80 2MB

English Pages 352 Year 2022

Table of contents :
Contents
Table of Statutes
Table of Orders, Rules and Regulations
Table of International Materials
Table of Cases
Preface
1. Absolute Basics
2. Jurisdiction
3. The Prosecution of Crime
4. Investigation of Crime
5. Petition Procedure
6. Bail
7. Solemn Proceedings from Petition to Preliminary Hearing or First Diet
8. Preliminary Hearings and First Diets
9. Summary Proceedings from First Appearance to Trial
10. Vulnerable Witnesses
11. The Trial: Evidence
12. The Trial: Procedure
13. Sentencing
14. Appeals
Index

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Criminal Evidence and Procedure: An Introduction
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Criminal Evidence and Procedure: An Introduction

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For Susan

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Criminal Evidence and Procedure: An Introduction Fourth Edition

Alastair N Brown

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Edinburgh University Press is one of the leading university presses in the UK. We publish academic books and journals in our selected subject areas across the humanities and social sciences, combining cutting-edge scholarship with high editorial and production values to produce academic works of lasting importance. For more information visit our website: edinburghuniversitypress.com Previous editions published in 1996, 2002 and 2010 by Avizandum Fourth edition 2022 © Alastair N Brown, 2022 emilybentonbookdesigner.co.uk Edinburgh University Press Ltd The Tun – Holyrood Road 12(2f) Jackson’s Entry Edinburgh EH8 8PJ Typeset in 11/15 Monotype Baskerville by IDSUK (DataConnection) Ltd, and printed and bound in Great Britain A CIP record for this book is available from the British Library ISBN 978 1 4744 9465 6 (hardback) ISBN 978 1 4744 9466 3 (paperback) ISBN 978 1 4744 9467 0 (webready PDF) ISBN 978 1 4744 9468 7 (epub) The right of Alastair N Brown to be identified as the author of this work has been asserted in accordance with the Copyright, Designs and Patents Act 1988, and the Copyright and Related Rights Regulations 2003 (SI 2003 No. 2498).

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Contents

Table of Statutes xi Table of Orders, Rules and Regulations xxviii Table of International Materials xxix Table of Cases xxx Preface xli 1. Absolute Basics 1 Types of procedure 1 The courts 1 The parties 2 Finding the law 2 The Criminal Procedure (Scotland) Act 1995 2 Act of Adjournal (Criminal Procedure Rules) 1996 3 Practice notes 3 Case law 3 Proof 4 Burden of proof 5 Admissibility of evidence 7 Sufficiency of evidence 7 Credibility and reliability 9 Standard of proof 10 Excusal of procedural irregularities 11 Chapter overview 12 2. Jurisdiction 13 Jurisdiction based on territory 13 General 13 Fraud and cross-border crimes 14 Crimes in more than one sheriff court district 16 Jurisdiction based on nationality or residence 17 Jurisdiction over particular crimes 18 The High Court of Justiciary 18

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vi Criminal Evidence and Procedure: An Introduction

Sheriff court JP court Chapter overview 3. The Prosecution of Crime The Lord Advocate Advocate deputes Procurators fiscal Brief history and functions Relationship with police and other investigators The decision to prosecute Alternatives to prosecution No proceedings, warning letters and diversion Fixed penalties, compensation offers and work orders Choice of procedure The prosecutor as ‘master of the instance’ Chapter overview

18 19 20 21 21 22 22 22 23 24 25 25 25 26 26 28

4. Investigation of Crime 29 Introduction 29 Arrest 30 When can the police make an arrest? 30 Criminal Justice (Scotland) Act 2016 31 Procedure after arrest 35 Investigative liberation 37 Questioning suspects 38 Initial enquiries 38 Particular suspicion 39 Questioning at a police station 43 The right to legal advice 43 Questioning a person who has been officially accused 48 Search 49 Search of the person 49 Invasive search 52 Search of property 54 Was the search within the scope of the warrant? 58 Cases of urgency 59 Regulation of investigatory powers 60 Identification procedure 62 Chapter overview 63 5. Petition Procedure Committal for further examination Chapter overview

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Contents vii

6. Bail 69 Bail applications 69 Relevant considerations 70 Conditions 72 Domicile of citation 74 Bail appeals 75 Marking and intimation 75 Bail reviews 75 Bail appeal after conviction 76 Chapter overview 77 7. Solemn Proceedings from Petition to Preliminary Hearing or First Diet 79 Introduction 79 Crown preparation 80 Time limits 80 Extensions 83 Precognition on authority of petition warrant 84 Precognition on oath 85 Disclosure 86 Prosecutor’s duty 86 Defence statement 88 Duty of investigating agency 88 Rulings about disclosure 88 Defence precognition and identification parade 89 Plea of guilty before service of indictment 90 The indictment 91 Service 91 Charges 92 Relevancy 93 Specification 94 Aggravations and dockets 98 Aggravations 98 Dockets 101 Amendment of charges 102 List of witnesses 105 Productions 105 Labelled productions 106 Documentary productions 109 Notice of previous convictions 112 Action by the defence between service of indictment and first diet/preliminary hearing 113 Defence statement 113

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viii Criminal Evidence and Procedure: An Introduction

Compatibility issues 113 Notice of special defences, defence witnesses and defence productions 115 Preliminary pleas and preliminary issues 116 Preliminary pleas 117 Challenges to competency or relevancy 117 Preliminary issues 124 Written record 129 Chapter overview 130 8. Preliminary Hearings and First Diets 133 Is the accused allowed to conduct their defence personally 133 Preliminary pleas 134 Recording the plea 134 Preliminary issues 133 Other objections to the admissibility of evidence 135 Which witnesses are required 136 State of preparation 136 Agreement of facts by joint minute 136 Statements of uncontroversial evidence 137 Other matters 138 Appeals 138 Fixing the trial 139 Chapter overview 139 9. Summary Proceedings from First Appearance to Trial 141 The complaint 141 First appearance 143 The first calling in summary procedure 145 Procedure on guilty plea 148 Withdrawal of guilty plea 148 Procedure on not guilty plea 148 Adjournment for trial 148 Intermediate diet 149 Bail 150 Prevention of delay in trials 150 Disclosure 151 Intermediate diet 151 Chapter overview 154 10. Vulnerable Witnesses 156 The problem 156 Closing the court 158

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Contents ix

Child witnesses: Discretionary powers 158 Special measures for vulnerable witnesses 159 Which witnesses are ‘vulnerable’ 159 The special measures 163 Prior sexual conduct of the complainer 168 Chapter overview 171 11. The Trial: Evidence 173 What things constitute evidence 173 Admissibility of evidence 174 Objections 174 Particular rules 179 Sufficiency of evidence 207 General 207 Course of criminal conduct – The Moorov doctrine 210 Corroboration of confessions 213 Fingerprints, DNA, CCTV, etc. 215 Chapter overview 216 12. The Trial: Procedure 219 Failure of the accused to appear 219 Back-up trials and call over 220 Commencement of the trial 220 Summary trials 220 Indictment 220 All cases 223 No case to answer submissions 226 Defence case 228 Recalling witnesses 228 Additional evidence 229 Evidence in replication 229 Submission as to sufficiency of evidence 230 Speeches 231 Jury directions 231 Verdict 232 Chapter overview 233 13. Sentencing 235 Procedure 235 Motion for sentence 236 Previous convictions 236 Unexpired portion of a sentence 237 Crown narrative 238

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x Criminal Evidence and Procedure: An Introduction

Forfeiture 238 Notification requirements 239 Adjournment for inquiry 240 Mitigation and proof of mitigation 241 ‘Discount’ for guilty plea 241 Particular sentences 244 General matters 244 Custodial sentences 248 Community disposals 252 Financial penalties 258 Chapter overview 263 14. Appeals 266 Defence appeals 266 Solemn procedure 266 Summary procedure 277 Crown appeals 283 Solemn procedure 283 Summary procedure 284 Bills of advocation and bills of suspension 285 Advocation 285 Suspension 286 Procedure 287 The nobile officium 287 Chapter overview 288 Index 291

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Table of Statutes

Abusive Behaviour and Sexual Harm (Scotland) Act 2016�� 120, 126 s 1�� 258 (1) (a)�� 72 (2)�� 99 (5)�� 97 s 1A�� 147 Adults with Incapacity (Scotland) Act 2000�� 120 Antisocial Behaviour etc. (Scotland) Act 2004�� 256–7 s 9�� 257 Children’s Hearings (Scotland) Act 2011�� 45 s 199�� 251 Civic Government (Scotland) Act 1982�� 239 s 46 (1)�� 126 s 60�� 55 Civil Evidence (Scotland) Act 1988 s 6�� 109 Coronavirus (Scotland) Act 2020�� 25, 193 Criminal Justice (Scotland) Act 1980 s 26 (7)�� 215 Criminal Justice (Scotland) Act 2003 s 42 (2)�� 256 Criminal Justice (Scotland) Act 2016 s 1�� 31–2, 63 (1)�� 31–2 (a)�� 36 (2)�� 32–3 (3)�� 32–3 s2 (1)�� 37 (2)�� 31 s 3�� 34 s 4�� 33–5

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xii Criminal Evidence and Procedure: An Introduction s 5�� 34 s 6�� 34 s 7�� 34 s 11 (1)�� 36 (2)�� 36 (3) (a)-(b)�� 36 (4)�� 36 (6)�� 36 (7)�� 36 s 13�� 35–6 (4)�� 36 s 14�� 35–6 s 16 (2)�� 37 (3)�� 37–8 s 17�� 38 s 18�� 38 s 19�� 38 (2)�� 38 s 21�� 31, 65, 145 (2)�� 36 s 26�� 36–7 s 31 (2)�� 42, 44 s 31–37�� 60 s 33�� 45 s 34�� 65 (2)�� 45 (4)�� 33–4, 43 (5)�� 45 s 35 (1)�� 49 (2)-(4)�� 49 (6)-(7)�� 49 s 36 (1) (a)-(b)�� 49 s 38 (1)�� 35 s 39�� 35 s 40�� 33 s 43�� 33 s 44�� 33, 43 s 45�� 33 s 54�� 31 s 63�� 34, 48

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Table of Statutes xiii

s 65�� 50 s 78�� 66 Sch 1 1 (1)(a)�� 37 Criminal Justice and Licensing (Scotland) Act 2010�� 244 s 38 (1)�� 191 s 39 (1)�� 161 s 116–167�� 23–4, 86 s 119 (2)�� 88 s 121�� 86–7, 151 (3)�� 88–9, 113 s 123�� 88 s 124�� 113 s 125�� 151 s 128�� 88, 89, 113, 138, 151 s 129�� 89 s 130�� 89 s 145�� 87, 89 s 164�� 88 Criminal Procedure Act 1701�� 68 Criminal Procedure (Scotland) Act 1700�� 23 Criminal Procedure (Scotland) Act 1995�� 2, 12 s3 (2)�� 18 (3)�� 249 (6)�� 18–19 s4 (2)�� 14 (4)�� 19 s5 (2)�� 249, 258 s6 (2)�� 19 s7 (3)�� 19 (4)�� 19 (5)�� 249 (6) (a)�� 249 (b)�� 258–9 (7)�� 259 (8)�� 19, 20 s9 (1)�� 16

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xiv Criminal Evidence and Procedure: An Introduction (2)�� 16 (3)�� 16 s 10�� 16–17 s 11�� 17 (1)�� 17 (2)�� 17–18 (3)�� 18 (4)�� 18 s 12�� 23 s 17 (2)�� 66 s 18�� 51, 64 (2)�� 51 (3)�� 51 (6)�� 51 (6A)�� 51, 204 (8)�� 51, 56 s 22A�� 69 s 23 (1)�� 69 (2)�� 69 (3)�� 68 (4)�� 69 (5)�� 69 (6)�� 69 (7)�� 69 s 23B�� 77 (1)�� 70 (3)�� 70 (5)�� 70 s 23C�� 70, 72, 77–8 (1)�� 71 (2)�� 71 s 23D�� 70, 71–2, 78 s 24 (1)�� 69 (6)�� 73 (7) (b)�� 75 (4)-(5)�� 72 s 25 (1)�� 74 (2)�� 74 (2B)�� 74 (3)�� 144 s 27�� 74 (1)�� 99 (a)�� 219

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Table of Statutes xv

(3)-(5)�� 99 (4A)�� 99, 147 (4B)�� 99, 147 (5)�� 99, 249 s 28 (1)�� 31 (1A)�� 36 s 29�� 74 s 30�� 75–6 s 31�� 76 (2)�� 76 (3)�� 76 s 32�� 74 (2)�� 74 (3)�� 75 (4)�� 75 (7)�� 75 (8)�� 75 s 34�� 31, 94 s 34–40�� 65–6 s 41�� 118 s 41A�� 118 s 49�� 50 s 50 (3)�� 158 s 51A�� 120 (1)�� 116 (4)�� 116 s 53 (8)�� 120 s 53F�� 82, 118 s 54�� 119 (1) (c)�� 119 (2B)�� 119 s 55�� 119 (1)�� 120 (4)�� 120 (5)�� 120 (6)�� 119 s 56 (3)�� 120 (7)�� 121 s 57�� 120 (2)�� 120–1 s 57A (2)�� 120 (7)�� 120

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xvi Criminal Evidence and Procedure: An Introduction s 58 (1A)�� 120 s 59�� 120 s 64�� 94 (1)�� 118 (2)�� 94 s 65�� 80, 82 (1) (a),(aa)�� 82 (b)�� 82, 137 (1A)�� 82 (2)�� 82, 219 (3)�� 82 (4) (a)�� 81 (aa)�� 81 (b)�� 81 (5)�� 81 (6)�� 82 s 66 (4)�� 74, 92 (4ZA)�� 74 (6)�� 83 s 67�� 105, 130–1, 138 (5)�� 105 (6)�� 136 s 68 (2)�� 87, 106, 127 s 69 (2)�� 112 s 70 (2)�� 92 s 70A�� 88 (4)-(5)�� 113 s 71�� 133, 137 (2)�� 79, 116–17, 127 (2ZA)�� 135 (A1)�� 133 s 71B�� 139 (3)�� 139 (6)�� 139 s 71C�� 129 s 72�� 121, 133, 137 (2)�� 133 (3)�� 79, 117 (6) (b)(i)�� 79, 117, 127 (9)�� 135

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Table of Statutes xvii

s 72A�� 139 (3)�� 139 (6)�� 139 s 72E�� 129 s 74�� 266–7, 278 (2)�� 266 (2A) (b)�� 138 (3)�� 267 s 76�� 89, 90–1, 131 s 77 (2)�� 133 s 78�� 179 (1)�� 221 (a)�� 110 (b)�� 111 (1A)�� 111 (3)�� 115 (4)�� 116 s 79 (1)�� 116–17, 127, 135–6, 175 (2)�� 112–13, 117, 124 (b)(v)�� 127 (3A)�� 125–6 s 79A (2)�� 117, 175 (3)�� 175 (4)�� 175 s 83A�� 137 s 83B�� 137 s 86 (2)�� 221 s 88�� 218 (5)�� 221 s 89�� 219 s 90�� 221 s 91�� 223 s 92 (3)�� 158, 171 s 96�� 142 (2)-(3)�� 102–3 s 97�� 5, 226 (2)�� 227 s 97A�� 230 s 97B�� 230 s 98�� 231 s 101�� 102 (1)�� 184

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xviii Criminal Evidence and Procedure: An Introduction s 101A�� 112–13 s 102A (1)�� 219 (2)�� 219 (5)�� 219 s 103�� 273 (7)�� 273 s 106�� 268, 279, 288 (3) (a)�� 269–70 (b)�� 271 (3A)�� 269–70 s 107�� 268, 275 (2)�� 275 s 107A�� 228, 230, 283, 290 s 107B�� 179 s 107D�� 283 (6)�� 283 s 108�� 284, 290 s 109�� 273 (4)�� 273 (5)�� 273 s 110 (1)�� 273 (a)�� 277 (3)�� 273 s 111�� 273 (2)�� 273 s 113 (1)�� 273 s 118�� 275 (1) (c)�� 276 (2)�� 276 (3)�� 276 (4)�� 276–7 (5)�� 276 (7)�� 244 (8)�� 102, 176 s 119�� 276 s 123�� 284, 290 (5)�� 284 s 130�� 286 s 133 (5)�� 21 s 135�� 31 s 136 (3)�� 144

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Table of Statutes xix

s 138�� 141 (2)�� 95 (4)�� 142 s 139 (2)�� 145 s 140�� 143 s 141�� 143 s 144 (1)�� 145–6 (4)�� 147, 278 (5)�� 146–7 s 145�� 144 s 145ZA�� 146–7 s 146�� 148 (2)�� 146–7, 148 (3)�� 149 (3A)�� 143 (4)�� 149 s 147 (2)�� 150 s 148�� 149 (3AA)�� 152 (5)�� 149 s 148A�� 149 s 149B�� 152 s 150 (3)�� 144, 217 (8)�� 150, 219 (10)�� 219 s 150A (1)�� 219–20 s 159�� 142 (2)�� 99 s 160�� 5, 226 (2)�� 227 s 161�� 231 s 166 (3)�� 184 s 166A�� 142–3 s 174�� 278 (1)�� 278 (1A)�� 285 (2)�� 278 (4)�� 278 s 175 (2)�� 278 (b)�� 282 (3)�� 284

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xx Criminal Evidence and Procedure: An Introduction (4)�� 284 (5)�� 278 s 176 (1)�� 279 (3)�� 280 s 177 (1)�� 279 (5)�� 281 s 178�� 280–1 s 179�� 281–2 s 180�� 282 s 182 (3)�� 280 s 183�� 282 s 186�� 282 s 187�� 283 s 189�� 283 (7)�� 244 s 191A (2)�� 287 s 191B�� 285 s 194A�� 274 s 194B�� 274–5 s 194ZB (1)�� 266 (3)�� 266 s 195�� 248, 249 s 196�� 264 (1)�� 241–3 s 197�� 244 s 201�� 240 (4)�� 76–7 s 202�� 246–7, 273 s 203�� 240 s 204 (2)�� 240 (2A)�� 240 (3A)�� 251, 265 (3B)�� 251 s 205�� 248 s 207�� 251–2 s 208�� 251 s 209�� 250 s 210A�� 249–50 (1)�� 250–1 (2)�� 250 (6)�� 250 (10)�� 248

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Table of Statutes xxi

s 210AA�� 249 s 210B�� 248 (3) (a)�� 248 s 210C (7)�� 249 s 210D�� 248 s 210F�� 248 s 211�� 258 (7)�� 259 s 212�� 259 s 214�� 260 s 217�� 260 s 219�� 260 s 221�� 260 s 225�� 19 (2)�� 258 (8)�� 258 s 226A�� 260 s 226B�� 260 s 227�� 261 s 227A�� 253 (2)�� 253 (4)�� 253 (5)�� 253 s 227B4�� 240 s 227G�� 254 (1)-(2)�� 255 s 227H�� 254 s 227I�� 254 s 227K�� 254 s 227P�� 254 s 227Q�� 254 s 227R�� 255 s 227S�� 255 s 227T�� 255 s 227U�� 255 s 227V�� 255 s 227W�� 255 s 227X�� 255 s 227ZC (7)�� 255–6 (8)�� 256 s 234A�� 257–8 (1A)�� 97, 100 (2)�� 258 (4)�� 257 (6)�� 257

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xxii Criminal Evidence and Procedure: An Introduction s 234AA�� 257 (3)�� 257 (9)�� 257 (11)�� 257 s 234AZA�� 99–100, 257–8 (4) (c)�� 258 s 234B�� 256 (3) (b)�� 240, 256 (4)�� 256 s 234C�� 256 s 234F�� 256 s 234G�� 256 s 234H�� 256 s 245A (1)�� 252 (2)�� 252 (3)�� 253 (4)�� 252 (6)�� 252 s 245C�� 253 s 245E�� 253 s 245F�� 253 s 245F-245J�� 253 s 245G�� 253 s 246�� 247 s 249�� 261 s 253F (1)�� 260 s 255�� 126, 145, 146–7 s 256 (2)(b)�� 137 s 257 (1)�� 136–7, 151 s 258�� 137–8 s 259�� 164, 192–3, 217 (2)�� 193 (2A) (a)�� 191 (3)�� 194 (5)�� 195 s 260�� 167, 198–200, 212, 217 (1)�� 167, 199 (2)�� 167–8 s 261 (1)�� 200 s 261A�� 224

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Table of Statutes xxiii

s 261ZA�� 192–3 s 262 (1)�� 167, 200 (2)�� 200 (3)�� 200 s 263 (4)�� 197, 201, 217 (5)�� 228 s 264�� 180 s 265 (2)�� 180 s 266�� 184–5 (1)�� 228 (4)�� 183 (7)�� 187 s 267�� 224–5 (2)�� 225 s 267B�� 59, 62, 64 s 268�� 229 (1)�� 229 (2)�� 229 s 269�� 229–30 s 270�� 183, 188 s 271�� 159–60 (1) (a)�� 160 (b)�� 162–3 (2)�� 161 (3) (a)�� 160 (b)�� 160, 161 (c)�� 160 (d)�� 163 (4)�� 162 (4A)�� 162 (5)�� 159, 160 s 271A (1) (1)�� 161 (10)�� 161 (14)�� 163–4 s 271A-271Z�� 3 s 271B�� 160 s 271BZA�� 162, 164 (3)�� 162 s 271BZB (2)�� 164 s 271F�� 160

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xxiv Criminal Evidence and Procedure: An Introduction s 271H�� 163, 167 (1) (e)�� 167 s 271HB�� 158 s 271I�� 159, 164–6 (1A)�� 165 (1ZA)�� 165 (1ZB)�� 165 (1ZD)�� 165 (b)�� 165 (2)�� 165 (3)�� 165 (8)�� 164 s 271J (1)�� 166 s 271K (1)�� 166 (2)�� 166 s 271L�� 163, 166 (3)�� 167 s 271M�� 167–8 (2)�� 167 (3)�� 165, 167 s 271N�� 127, 129 s 271Q�� 124 (2) (a)�� 152 (5)-(6)�� 152 s 271R�� 123 (2)-(7)�� 128–9 s 271–271M�� 159, 169 s 274�� 152, 168, 170, 172, 179, 188 s 275�� 134, 152, 168–71, 170, 172, 178, 179 (1)�� 189 s 275A�� 171, 188–9 (7)�� 189 s 276�� 107 s 277 (2)�� 46 s 280�� 173 (1)�� 173, 192, 195 (4)�� 196 (5)�� 196 (6)�� 173 (8)�� 196 (9)�� 147 s 281�� 173

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Table of Statutes xxv

s 283�� 175 s 287 (2)�� 22, 118 s 288A�� 102, 266 s 288B�� 101 s 288C�� 73, 77, 132, 143, 168 s 288D (2)-(3)�� 133 s 288DC�� 132, 143 s 288E�� 133 s 288F (2)�� 134, 135 s 288ZA (2)�� 114 s 288ZB (2)�� 114 s 290�� 90 s 291�� 88 s 292�� 18 (6)�� 18–19 s 300A�� 11–12 s 302�� 25 s 302A�� 26 s 302B�� 26 s 302ZA�� 26 s 303ZA�� 113, 141, 143, 236 s 307�� 251 Sch 2�� 94, 142 Sch 3�� 94, 95, 142 para 2�� 97 para 4�� 93 (1)�� 94, 96 (2)�� 96 (6)�� 93 para 11�� 98 Sch 4�� 121 Sch 5�� 95, 142 Sch 8�� 108, 109, 174 para 1�� 110 para 2�� 110 (1)�� 106–7 para 3�� 226 para 4�� 108 para 10�� 226 Sch 9�� 173, 216 Criminal Proceedings etc. (Reform) (Scotland) Act 2007 s 62�� 14

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xxvi Criminal Evidence and Procedure: An Introduction Domestic Abuse (Scotland) Act 2018 s 1�� 126, 147, 258 (1)�� 72 s 7�� 147 Double Jeopardy (Scotland) Act 2011 s 1�� 121, 123 s 2�� 122 s 3�� 122 s 4�� 122 s7 (2)�� 122 (3)�� 122 (4)�� 122 s 8�� 123 s 9�� 123 s 11�� 123 s 12�� 123 Education (Scotland) Act 1980 s 43 (2)�� 21 Firearms Act 1968�� 59 Hate Crime and Public Order (Scotland) Act 2021 s 1�� 97–8 (4)�� 101 s 2�� 100 Human Rights Act 1988�� 86, 119 s 6�� 113–14 Mental Health (Care and Treatment) (Scotland) Act 2003 s 181–204�� 120 s 328�� 162 Misuse of Drugs Act 1971�� 173 s 23 (2)�� 50 (3)�� 54, 55–6, 57–8 Police and Fire Reform (Scotland) Act 2012 s 17 (3)�� 23 s 20 (1) (d)�� 23 Prisoners and Criminal Proceedings (Scotland) Act 1993�� 51 s 2�� 249 s 16�� 237–8, 251

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Table of Statutes xxvii

s 17�� 237–8 s 18 (2)�� 250 Proceeds of Crime Act 2002�� 265 s 92�� 261 (9)�� 262 s 93�� 263 s 95�� 263 s 96�� 262 s 101�� 261 s 102�� 262 s 116�� 263 (5)�� 263 s 118 (5)�� 263 s 142�� 262 s 143�� 262–3 s 144�� 263 s 380�� 56 s 387�� 56 s 380–386�� 56 Sch 4�� 262 Proceeds of Crime (Scotland) Act 1995 s 21–27�� 238 s 24�� 238 Protection from Harassment Act 1997 s8 (3)�� 257 Regulation of Investigatory Powers Act 2000�� 61 Regulation of Investigatory Powers (Scotland) Act 2000 s 5–8�� 61–2 Road Traffic Act 1988 s 170�� 176 s 172�� 47 Road Traffic Offenders Act 1988 s 21�� 207 s 23�� 226–7 s 33A�� 239 Road Traffic Regulation Act 1988�� 173 Scotland Act 1998 s 29 (2) (e)�� 22 s 44 (1) (c)�� 22

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xxviii Criminal Evidence and Procedure: An Introduction s 48 (5)�� 22 s 57�� 124 Sexual Offences (Scotland) Act 2009�� 95, 126, 207 s1 (1)�� 19 s 3�� 104 s 18�� 19 s 20�� 103 s 50�� 226–7 s 55�� 17–18 s 80�� 239 s 82�� 239 s 83�� 240 s 92�� 239–40 (2)�� 240 Sch 3�� 161, 239–40, 264 Sheriff Courts and Legal Officers (Scotland) Act 1927�� 23 Territorial Sea Act 1987 s1 (1) (a)�� 14 Wireless Telegraphy Act 1949 s5 (b)(i)�� 59–60

Table of Orders, Rules and Regulations Act of Adjournal (Criminal Procedure Rules) 1996 [SI 1996 No. 513 (S47)]�� 3, 12 rule 2.2�� 92 rule 4.1�� 74 rule 9.3A�� 130 rule 9.3A(2)�� 129, 130 rule 9.5�� 267 rule 9.6�� 138 rule 9A.4�� 129, 130 rule 9A.6�� 267 rule 9A.7�� 267 rule 12.7(2)�� 139 rule 14.1A (1)�� 220 rule 14.2�� 221 rule 15.15�� 274 rule 16.1�� 142 rule 16.3�� 143

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Table of Statutes xxix

rule 19.1 (4)-(5)�� 278 rule 21.3�� 195 rule 26.1�� 108, 110 rule 40.2�� 114 rule 40.3 (1)�� 150 rule 40.6�� 114 Criminal Procedure (Scotland) Act 1995 Compensation Offer (Maximum Amount) Order 2008 (SSI 2008 No. 7)�� 26 Criminal Procedure (Scotland) Act 1995 Fixed Penalty Order 2008 [SI 2008 No. 108 ]�� 25 Victim Surcharge (Scotland) Regulations 2019 [SI 2019/387] Sch 1�� 260

Table of International Materials Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings [2012] OJ L 142/1�� 34 European Convention on Human Rights 1950 art 5 (3)�� 36 art 6�� 43, 62, 158, 171, 188 (1)�� 124 (2)�� 5, 47 art 7�� 93–4 art 8�� 38, 54 (1)�� 61 (2)�� 56, 60–1

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Table of Cases

A v HM Advocate [2012] HCJAC 29, 2012 JC 343�� 167, 197 Adcock v Archibald [1925] HCJ 1, 1925 JC 58�� 14 Advocate (HM) v Abid, HM Advocate v Hayat 2020 SCCR 12�� 76 Advocate (HM) v AE 1937 JC 96�� 97 Advocate (HM) v Allan (1873) 2 Couper 402�� 15–16 Advocate (HM) v AM [2016] HCJAC 34, 2016 SCCR 227�� 87, 106 Advocate (HM) v Auld [2016] HCJAC 18, 2016 SCCR 159�� 122 Advocate (HM) v Bell 1984 SCCR 430�� 57 Advocate (HM) v Bell 1995 SCCR 244�� 284 Advocate (HM) v Bradbury (1872) 2 Couper 311�� 15–16 Advocate (HM) v Brown 1984 SCCR 347�� 84 Advocate (HM) v Cheung 2013 SLT (Sh Ct) 131�� 263 Advocate (HM) v Coulter 2017 JC 115�� 122 Advocate (HM) v Cowan 2017 SCCR 526�� 83 Advocate (HM) v Cumming 1983 SCCR 15�� 58 Advocate (HM) v Cunningham, Glasgow HC, 14 February 1974�� 183 Advocate (HM) v Dennison 1978 SLT (Notes) 79�� 108 Advocate (HM) v Dickie [2002] HC 3, 2002 GWD 7–222�� 154 Advocate (HM) v Discovery Homes (Scotland) Ltd and Pratt [2010] HCJAC 47�� 259 Advocate (HM) v DS [2007] UKPC D1, 2007 SCCR 222�� 188–9 Advocate (HM) v Duffy [2009] HCJAC 5, 2009 SCCR 20�� 6 Advocate (HM) v Forrester 2007 SCCR 216�� 79 Advocate (HM) v Friel 1978 SLT (Notes) 21�� 46 Advocate (HM) v Gilmour [2019] HCJAC 74, 2020 SCCR 1�� 123 Advocate (HM) v Gordon 1996 SCCR 274�� 284 Advocate (HM) v Griffiths [2009] HCJ 1, 2009 GWD 34–576, 2009 SLT 1054�� 28 Advocate (HM) v Hastings 1985 SLT 446�� 97 Advocate (HM) v Hepper 1958 JC 39�� 58 Advocate (HM) v Hutchinson 2013 SCCR 479�� 284 Advocate (HM) v Jones 1964 SLT (Sh Ct) 50�� 76 Advocate (HM) v Kay 1970 JC 68�� 183 Advocate (HM) v M 1986 SCCR 624�� 81 Advocate (HM) v Mackenzies (1913) 7 Adam 189�� 97 Advocate (HM) v McCann 1977 SLT (Notes) 19�� 82 Advocate (HM) v McGachy 1991 SLT 921�� 202 Advocate (HM) v Meechan 1967 SLT (Notes) 75�� 81 Advocate (HM) v Megrahi (No. 3) 2000 SLT 1401�� 198

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Table of Cases xxxi

Advocate (HM) v Milford 1973 SLT 12�� 53 Advocate (HM) v Monson (1893) 1 Adam 114�� 85 Advocate (HM) v Moynihan [2018] HCJAC 43, 2019 SCCR 61�� 102 Advocate (HM) v Murray [2008] HCJAC 1, 2008 SCCR 276�� 241 Advocate (HM) v O’Neill 1992 SCCR 130�� 27 Advocate (HM) v Parker and Barrie (1888) 2 White 79�� 125 Advocate (HM) v Rae 1992 SCCR 1�� 57 Advocate (HM) v Richards 2010 SCCR 843�� 84 Advocate (HM) v Rolley 1945 JC 155�� 215 Advocate (HM) v Smith 2014 SCCR 39�� 244 Advocate (HM) v Stewart (1855) 2 Irvine 160�� 197 Advocate (HM) v Stewart and Stewart 2010 SCCR 341�� 227 Advocate (HM) v Strachan 1990 SCCR 341�� 58 Advocate (HM) v Swift 1984 SCCR 216�� 83–4 Advocate (HM) v Turnbull 1951 JC 96�� 59 Advocate (HM) v Witherington (1881) 8R(J) 4�� 15–16 Affleck and Quinn v HM Advocate 1987 SCCR 150�� 232 Ahmed v HM Advocate 2009 SCCR 861�� 200–1 Al Megrahi v HM Advocate 2002 SCCR 509�� 112, 205, 231, 270–2 Al Megrahi v HM Advocate 2021 SCCR 64�� 272 Allan v Douglas 1978 JC 7�� 33 Allan v HM Advocate 1997 SCCR 21�� 252 Allan v Tant 1986 SCCR 175�� 57 ALM v HM Advocate [2015] HCJAC 74, 2015 SCCR 389�� 252 Anderson v Allan 1985 SCCR 399�� 93 Anderson v HM Advocate 1974 SLT 239�� 288 Anderson v HM Advocate 1996 SCCR 114�� 269 Anderson v HM Advocate [2007] HCJAC 50, 2007 SCCR 507�� 10 Anderson v Laverock 1976 SLT Notes 14�� 108 Andersons v McFarlane (1899) 2 Adam 644�� 197 Andrew Redpath & Son v MacNeill 1990 GWD 25–1423�� 259 Armstrong v HM Advocate [2005] HCJAC 139, 2006 SCCR 21�� 268 Assessor for Lothian Region v Wilson 1979 SC 341�� 205 Atkinson v HM Advocate 2011 JC 57�� 79 Aziz v HM Advocate 1998 SCCR 736�� 57 B v HM Advocate 1995 SLT 961�� 41 Ballard v North British Railway Co 1923 SC (HL) 43�� 205 Balsillie v HM Advocate 1994 SLT 1116�� 111 Barberà, Messegué and Jabardo v Spain (1989) 11 EHRR 360�� 5 Baxter v Scott 1992 SCCR 342�� 55 Beattie v Hingston 1999 SLT 362�� 90 Beattie v HM Advocate 1995 SLT 275�� 215 Begg v HM Advocate 2015 SLT 602�� 226 Bell v Hogg 1967 JC 49�� 50 Bennet v HM Advocate 1994 SCCR 902�� 287 Bhowmick v HM Advocate [2018] HCJAC 6, 2018 SCCR 35�� 175 Bickerstaff v HM Advocate 1926 JC 65�� 82

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xxxii Criminal Evidence and Procedure: An Introduction Binks v HM Advocate 1984 JC 108�� 185 Black, Petitioner 1991 SCCR 1�� 288 Blair v Keane 1981 SLT (Notes) 4�� 98 Boustead v McLeod 1979 JC 70�� 186 Bowman v Jessop 1989 SCCR 597�� 281 Boyle v HM Advocate 1976 SLT 126�� 273 Brady v HM Advocate 1986 SCCR 191�� 180 Brogan v O’Rourke Ltd 2005 SLT 29�� 12 Brogan v United Kingdom (1989) 11 EHRR 117�� 36 Brown v HM Advocate 1966 SLT 105�� 40 Brown v HM Advocate 1992 SCCR 59�� 124–5 Brown v Stott 2001 SCCR 62�� 47, 180 Burgess v HM Advocate [2010] HCJAC 68, 2010 SCCR 803�� 226 Burn, Petitioner 2000 SCCR 384�� 70–1 Cadder v HM Advocate 2011 SC (UKSC) 13, 2010 SCCR 951�� 43 Cameron v Cottam (No. 1) 2013 JC 12�� 72 Carmichael v B 1991 SCCR 715�� 84 Carmichael v Monaghan 1986 SCCR 598�� 185 Carpenter v Hamilton 1994 SCCR 108�� 212 Carruthers v Macgregor 1927 SC 816�� 205 Cassels v HM Advocate 2006 SCCR 327�� 169 CH v HM Advocate [2020] HCJAC 43, 2020 SCCR 411�� 170 Chalmers v HM Advocate 1954 SLT 177�� 39–40 Cirignaco v Lockhart 1995 SCCR 157�� 90 CJM v HM Advocate [2012] HCJAC 83, 2013 SCCR 215�� 169–71, 181 Clark v Donald 1962 JC 1�� 27 Clayton, Petitioner 1991 SCCR 261�� 273 Clyde and Co (Scotland) LLP v Richardson 2016 SLT 1200�� 287 Clydesdale Group plc v Normand 1994 SLT 1302�� 94, 98 Coll, Petitioner 1977 SLT 58�� 200, 201 Connell v Mitchell (1905) 5 Adam 641�� 93, 237 Conner v Lockhart 1986 SCCR 360�� 187 Connor v HM Advocate 2002 SCCR 423�� 60 Copeland v McPherson 1970 SLT 87�� 33 Cordiner v HM Advocate 1978 JC 64�� 184 Cordiner v HM Advocate 1991 SCCR 652�� 176, 227 Crooks v Russell 2002 SLT 221�� 179 Crossan v HM Advocate 1996 SCCR 279�� 91 Cummings v HM Advocate 1982 SCCR 108�� 34–5 Cuthill and Arbuckle v Guild 1989 SCCR 717�� 97 Davidson v Brown 1990 SCCR 304�� 54–5 Davie v Magistrates of Edinburgh 1953 SC 34�� 204–6 Deb v Normand 1997 SLT 107�� 224 Deeney v HM Advocate 1986 SCCR 393�� 186 Devlin v Normand 1992 SCCR 875�� 49–50 Dickson v Crowe 1998 SCCR 406�� 57–8

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Table of Cases xxxiii

Dickson v HM Advocate 1980 SLT (News) 265�� 136 Ditchburn v HM Advocate [2020] HCJAC 55, 2021 SCCR 1�� 268–9 Donald v Hart (1884) 6D 1255�� 85 Donaldson v HM Advocate 1983 SCCR 216�� 277 Doyle v Ruxton 1999 SLT 487�� 205 Dreghorn v HM Advocate 2015 SCCR 349�� 157 Drummond, Petitioner 1998 SCCR 42�� 90 Drummond v HM Advocate 1992 SCCR 290�� 59 Dryburgh v Galt 1981 SCCR 26�� 32 DS v HM Advocate 2007 SC (PC) 1�� 171 Du Plooy v HM Advocate 2005 1 JC 1�� 241 Duffy v HM Advocate 1991 SCCR 685�� 84 Duffy v Ingram 1987 SCCR 286�� 104 Duke v Griffiths 2010 SCCR 44�� 231 Dunbar, Petitioner 1986 SCCR 602�� 68 Durant v Lockhart 1986 SCCR 23�� 279–80, 285, 286 Dyce v Aitchison 1985 SCCR 184�� 98 Edgley v Barbour 1994 SCCR 789�� 59–60 Edwards v HM Advocate 2009 SCCR 871�� 269 Fairley v Fishmongers of London 1951 JC 14�� 30, 58 Falconer v Brown (1893) 1 Adam 96�� 281 Farrell v HM Advocate 1984 SCCR 301�� 81 Fenton, Petitioner 1981 SCCR 288�� 288 Finlay v PF Perth [2020] SAC (Crim ) 1�� 100, 258 Forrester v HM Advocate 1952 JC 28�� 199–200 Foster v Farrell 1963 SLT 182�� 47 Fox v HM Advocate 1998 SCCR 115�� 7, 207–9 Frew v Jessop 1989 SCCR 530�� 197–8 Frost v McGlennan 1998 SCCR 573�� 148 Gallagher v HM Advocate [2010] HCJAC 130, 2011 SCCR 108�� 188 Gardner v Lees 1996 SCCR 168�� 80 Gemmell and McFadyen v MacNiven 1928 JC 5�� 125 Gemmell v HM Advocate 2012 SLT 484; 2012 SCCR 176�� 242–4 Gibbons, Petitioner 1988 SCCR 270�� 69–70 Gilchrist, Petitioner 1991 SCCR 699�� 288 Gilchrist v Scott 2000 SCCR 28�� 14 Gilmour v HM Advocate 1982 SCCR 590�� 215 Gilroy v HM Advocate 2013 JC 163�� 41–2 Glass v HM Advocate 2018 SCCR 379�� 194, 199 Glover v HM Advocate 2014 SCCR 68�� 92–3, 95 Glover v Tudhope 1986 SCCR 49�� 190–1 Gordon v Allan 1987 SLT 400�� 280–1 Gordon v Hansen (1914) 7 Adam 441�� 280 Graham v HM Advocate 1984 SLT 67�� 186 Grant v HM Advocate 1938 SLT 113�� 192

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xxxiv Criminal Evidence and Procedure: An Introduction Grugen v Jessop 1988 SCCR 182�� 150–1, 286 Gubinas v HM Advocate 2017 SCCR 463�� 216 Haashi v HM Advocate 2015 JC 4�� 138, 267 Hamill v HM Advocate 1999 SLT 963�� 191 Hamilton v Grant 1984 SCCR 263�� 108 Hamilton v HM Advocate 1934 JC 1�� 215 Hamilton v Ross 1992 SLT 384�� 147 Harley v HM Advocate 1995 SCCR 595�� 42 Hartley v HM Advocate 1979 SLT 26�� 40, 46, 213 Hay v HM Advocate 1968 SLT 334�� 52–3 Healy v HM Advocate 1990 SCCR 110�� 91 Henderson v HM Advocate [2017] HCJAC 43�� 88 Herron v A, B, C and D 1977 SLT (Sh Ct) 24�� 67–8 Herron v Gemmell 1975 SLT (Notes) 93�� 103 Hester v MacDonald 1961 SC 370�� 118 Hewatt v Edinburgh Corporation 1944 SC 30�� 202–3 Heywood v Smith 1989 SCCR 391�� 9 Hilson v Easson 1914 SC (J) 99�� 121 Houston v Carnegie 1999 SCCR 605�� 32 Howden v HM Advocate 1994 SCCR 19�� 8 Howdle v Beattie 1995 SCCR 349�� 26 Howitt v HM Advocate 2000 SLT 449�� 6 Howman v Ross (1891) 3 White 57�� 96 Hoyers (UK) Ltd v Houston 1991 SCCR 919�� 286 Hudson v Hamilton 1992 SCCR 541�� 46–7 Hughes v Donnelly 1994 SCCR 598�� 241 Hughes v Skeen 1980 SLT(Notes) 13�� 107 Hull v HM Advocate 1945 JC 83�� 143 Hutchison v Valentine 1990 SCCR 569�� 214–15 IG v HM Advocate 2018 SCCR 343�� 246 Ingram v Macari 1982 SCCR 372�� 205 Innes v HM Advocate 1955 SLT (Notes) 70�� 8–9 Innes v Jessop 1989 SCCR 441�� 59 Jack v HM Advocate 1999 SCCR 296�� 48 Jamieson v HM Advocate (No. 2) 1994 SCCR 610�� 198–9 Johnston v Allan 1983 SCCR 500�� 185 Johnston v Lockhart 1987 SCCR 537�� 260 Jones v Milne 1975 SLT 2�� 40 Kane v HM Advocate 2003 SCCR 749�� 246 Keane v Bathgate 1983 SLT 651�� 285 Kerr v HM Advocate 1958 SLT 82�� 202 Kerr v HM Advocate 1986 JC 41�� 42 Kerr v HM Advocate 2015 JC 32�� 122 Kerr v Jessop 1986 JC 41�� 185

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Table of Cases xxxv

KH v HM Advocate [2015] HCJAC 42, 2015 SCCR 242�� 213 Khaliq and Ahmed v HM Advocate 1983 SCCR 68�� 93–4 Khan v HM Advocate 2020 SCCR 211�� 200 Khan v United Kingdom (2001) 31 EHRR 45�� 60–1 Kidd v HM Advocate 2000 SLT 1068�� 270 King v Lees 1993 SCCR 28�� 9 Kinloch v HM Advocate 2013 SCCR 100, [2013] 2 AC 93, [2012] UKSC 62�� 60 Kirk and Hunter v Brown 2012 SCCR 558�� 255 Kirkwood v Coalburn District Co-operative Society 1930 JC 38�� 26–7 KJC v HM Advocate 1994 SCCR 560�� 200 Knaup v Hutchison 2002 SCCR 879�� 55 KP v HM Advocate 2017 SCCR 462�� 231 Kruslin v France (1990) 12 EHRR 528�� 60 Kyle v HM Advocate 1987 SCCR 116�� 223 Laird and Goddard v HM Advocate 1984 SCCR 469�� 15 Lambie v HM Advocate 1973 JC 53�� 6, 116 Lawrie v Muir 1950 JC 19�� 29–30, 51 Leadbetter v HM Advocate [2020] HCJAC 51, 2021 SCCR 21�� 106, 109, 175, 228–9 Lees v Weston 1989 SCCR 177�� 53–4 Leggate v HM Advocate 1988 SLT 665�� 187 Letellier v France (1992) EHRR 83�� 71–2 Liddle v HM Advocate [2012] HCJAC 68, 2012 SCCR 478�� 137 Lindsay v HM Advocate 1993 SCCR 868�� 210 Lipsey v Mackintosh 1913 SC(J) 104�� 16 Little v HM Advocate 1983 SCCR 56�� 8 LL v HMA 2018 JC 182�� 170 Lockhart v BSM 1982 SCCR 188�� 104 Lockhart v National Coal Board 1981 SLT 161�� 94 Lockhart v Robb 1988 SCCR 381�� 150 Logan v HM Advocate [2020] HCJAC 10, 2020 SCCR 203�� 41–2 Long v HM Advocate 1984 SCCR 161�� 77 Lord Advocate’s Reference No. 1 of 2000 2001 SLT 507�� 202 Low v MacNeill 1981 SCCR 243�� 90 Lowe v Bee 1989 SCCR 476�� 141 Lyle v HM Advocate 1991 SCCR 599�� 84 Lyon v Don Brothers Buist & Co 1944 JC 1�� 281 M v Watson 2009 SCCR 847�� 72 McAdam v HM Advocate 1960 JC 1�� 47 Macaulay v Wilson 1995 SCCR 133�� 175 McBride, Petitioner 2002 GWD 1–19�� 288 McCall v Mitchell (1911) 6 Adam 303�� 236–7 McCarthy v HM Advocate 2021 SCCR 6�� 88 McCartney v HM Advocate 1997 SCCR 644�� 241 McCartney v Tudhope 1985 SCCR 373�� 145 McCluskey v HM Advocate 1992 SCCR 920�� 81 McClymont v HM Advocate [2020] HCJAC 1�� 87

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xxxvi Criminal Evidence and Procedure: An Introduction McCuaig v HM Advocate 1982 JC 59�� 184 McCulloch v HM Advocate 1995 SLT 918�� 82 MacDonald v HM Advocate 1987 SCCR 581�� 48 MacDonald v HM Advocate 1999 SLT 533�� 195 MacDonald v HM Advocate 2020 SCCR 251�� 269 MacDonald v Mackenzie 1947 JC 169�� 225 McDonald v Scott 1993 SCCR 78�� 207 McFadden and Spark v HM Advocate 2009 SCCR 902�� 62, 176–7 McFadyen v Annan 1992 SCCR 186�� 123 McGhee v HM Advocate 1991 SCCR 510�� 276 McGhee v HM Advocate [2006] HCJAC 87, 2006 SCCR 712�� 242 McGill v HM Advocate 2014 SCCR 46�� 73 MacGillivray v Johnston (No. 2) 1994 SLT 1012�� 230 McGlennan v Kelly 1989 SCCR 352�� 54 McGougan v HM Advocate 1991 SCCR 49�� 213 McGowan v B 2010 SCCR 109�� 43–4 McGregor v MacNeill 1986 SCCR 23�� 286 McInally v Procurator Fiscal, Edinburgh [2016] SAC (Crim) 5�� 241–2 MacIntosh v Metcalfe (1886) 1 White 218�� 103 MacIver v Mackenzie 1942 JC 51�� 106–7 McKellar v Normand 1992 SCCR 393�� 107 McKenzie v HM Advocate 1959 JC 32�� 10 Mackie v HM Advocate, 26 July 2001�� 209 Mackie v HM Advocate 1969 JC 20�� 17 McKillen v Barclay Curle & Co 1967 SLT 41�� 215 McLean v HM Advocate 2020 SCCR 16�� 250 McLeod, Petitioner 1975 SCCR Supp 93�� 288 MacLeod v Levitt 1969 JC 16�� 286 McMillan v Grant 1924 JC 13�� 96 McNair v HM Advocate HCJ, 25 January 1991�� 198 McNeill, Complainer 1984 SLT 157�� 56, 286 McNeillie v Walkingshaw 1990 SCCR 428�� 145 McNicol v Peters 1969 SLT 261�� 33 McPherson v HM Advocate 1986 SCCR 278�� 246 McQuarrie v Carmichael 1989 SCCR 371�� 272 McTavish v HM Advocate 1975 SLT (Notes) 27�� 47 McWilliam v Harvie 2016 SLT 648�� 287 Maguire v HM Advocate 2003 SLT 1307�� 215 Mailey v HM Advocate 1993 JC 138�� 231 Maitland v HM Advocate 1992 SCCR 759�� 270 Malone v United Kingdom (1984) 7 EHRR 14�� 60 Manuel v HM Advocate 1958 JC 41�� 214 Maznetter v Austria (1979–80) 1 EHRR 198�� 71–2 Menzies v HM Advocate 1995 SCCR 550�� 34 Miller v Smith 2013 SCCR 169�� 45 Milne v Cullen 1967 JC 21�� 40–1 Mitchell v Dean 1979 JC 62�� 186 Mitchell v HM Advocate 1991 SCCR 216�� 274

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Table of Cases xxxvii

Mitchell v HM Advocate 2008 SCCR 469�� 271 MM v HM Advocate 2007 SCCR 159�� 168–9, 189–90 Mohammed v HM Advocate [2020] HCJAC 27�� 212–13 Moorov v HM Advocate 1930 JC 68�� 210–13, 252 Morris v McNeill 1991 SCCR 722�� 53 Morrison v HM Advocate 2013 SCCR 626�� 231 Mowbray v Crowe 1993 SCCR 730�� 86 Mraovic v Croatia 14 May 2020, 30373/13�� 158 Muldoon v Herron 1970 SLT 229�� 197–8 Muldoon v HM Advocate 1967 SLT 237�� 226–7 Murphy v HM Advocate 2012 SCCR 542�� 79, 134 Murphy v WTH 2016 SCCR 136�� 89 Murray v HM Advocate 2013 SCCR 88�� 243 N v HM Advocate 2003 SLT 761�� 195 Najafian v Donaldson 2010 SCCR 16�� 154 Neil v HM Advocate 1948 JC 12�� 232 Neilands v Leslie 1973 SLT (Notes) 32�� 287 Neizer v Johnston 1993 SCCR 772�� 230 Nelson v HM Advocate 1994 SCCR 192�� 181–2 Newlands v HM Advocate [2013] HCJAC 148,2014 JC 183, 2014 SCCR 25�� 11–12 Niblock v HM Advocate [2010] HCJAC 21, 2010 SCCR 337�� 199–200 Nichol v HM Advocate [2012] HCJAC 56, 2012 SCCR 448�� 83 Nisbet v JR and SAR 2014 SCCR 18�� 128–9 Nolan v McLeod 1987 SCCR 558�� 210 Noon v HM Advocate 1960 JC 52�� 236 Normand v McQuillan 1987 SCCR 440 (Sh Ct)�� 27–8, 67 Normand v Rooney 1992 SCCR 336�� 123–4 Normand v Wotherspoon 1993 SCCR 912�� 195–6 O’Brien v McCreadie 1994 SCCR 516�� 195–6 O’Leary v HM Advocate [2014] HCJAC 45, 2014 SCCR 421�� 114 O’Neill v HM Advocate 1998 SCCR 644�� 244 O’Neill v Tudhope 1984 SCCR 424�� 185 O’Reilly v HM Advocate 1984 SCCR 352�� 65 Parracho v HM Advocate [2020] HCJAC 59, 2011 SCCR 257�� 229, 285 Paterson v HM Advocate [2008] HCJAC 18, 2008 SCCR 605�� 103–4 Paton v Lees 1992 SCCR 212�� 126 Pennycuick v Lees 1992 SCCR 160�� 42 Pert v Robinson 1955 SLT 23�� 280 Platt v Lockhart 1988 SCCR 308�� 286 Porteous (1841) Bell’s Notes 293�� 183 Preston-Jones v Preston-Jones [1951] AC 391�� 205 Proctor v Tudhope 1985 SCCR 39�� 209–10 R v Abadom [1983] 1 WLR 126�� 206 R v HM Advocate 2013 SCCR 164�� 44–5

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xxxviii Criminal Evidence and Procedure: An Introduction R v Longworth [2006] 1 WLR 313�� 239 R v Lubema [2015] 1 WLR 1579�� 226 Radic v HM Advocate [2014] HCJAC 76�� 136 Ralston v HM Advocate 1987 SCCR 467�� 210 Reedie v HM Advocate 2005 SCCR 407�� 91 Reid v Duff (1843) 5D 656�� 85 Reynolds v Dyer 2002 SLT 295�� 143 Reynolds v HM Advocate 1995 SCCR 504�� 212 RG v HM Advocate [2019] HCJAC 18, 2019 SCCR 172�� 168 Riley v HM Advocate 1999 JC 308�� 93, 237 RMM v HM Advocate 2013 SCCR 79�� 94–5 Robertson v MacDonald 1992 SCCR 916�� 145 Robertson v Vannet 1999 SLT 1081�� 258 Robertson v Wilson 1949 JC 73�� 9 Robt. Turner (1881) 18 SLR 491�� 125 Ross v HM Advocate [2015] HCJAC 2137, 2015 SCCR 237�� 241 RR v HM Advocate 2021 SCCR 71�� 171 Russell v HM Advocate 2021 SCCR 111�� 76 Ryan, Petitioner 2002 GWD 6–181�� 288 S v HM Advocate 2020 SLT 1220�� 101–2 Scott v Howie 1993 SCCR 81�� 46 Scottish Criminal Cases Review Commission v HM Advocate 2000 SCCR 842�� 85 Shuttleton v Orr [2019] HCJAC 12, 2019 SCCR 185�� 216 Sinclair v HM Advocate 2016 SLT 444�� 88 Singh v HM Advocate 2001 SLT 812�� 58 SJS v HM Advocate 2016 SCCR 12�� 258 Skeen v Sullivan 1980 SLT (Notes)11�� 236 Skene v McLaren 1976 SLT (Notes) 14�� 153 Slack v HM Advocate 1995 SCCR 809�� 182 Smart v HM Advocate [2016] HCJAC 73,2016 SLT 1035�� 246 Smith v Allan 1985 SCCR 190�� 126 Smith v Cardle 1993 SCCR 609�� 54 Smith v HM Advocate 1952 JC 66�� 23 Smith v HM Advocate 1983 SCCR 30�� 274 Smith v HM Advocate 2017 JC 54�� 272 Smith v Lees 1997 SLT 690�� 207–8 Smith v Paterson 1982 JC 125�� 147 Souter v McLeod 1999 SLT 1006�� 207 Spence v HM Advocate 2007 SCCR 592�� 242 Spiers v Ruddy 2009 SC (PC) 1�� 124 Stark & Smith v HM Advocate 1938 JC 170�� 48 Stevenson v McLevy (1879) 4 Couper 196�� 103 Stewart v HM Advocate 2007 SCCR 303�� 213 Stewart v Normand 1991 SCCR 940�� 154 Stewart v Payne [2016] HCJAC 122, 2017 SCCR 56�� 21 Strathearn v Sloan 1937 JC 76�� 26 Strathmore Group v Credit Lyonnais 1994 SLT 1023�� 169, 180

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Table of Cases xxxix

Stuart v Crowe 1992 SCCR 181�� 57, 286–7 Symmers v McFadyen [2000] JC 149, 2000 SCCR 66�� 96 Temple v HM Advocate 1971 JC 1�� 270 Templeton v HM Advocate 1987 SCCR 693�� 267 Templeton v McLeod 1986 SLT 149�� 187 Teper v R [1952] AC 480�� 192 Thompson v Crowe [1999] ScotHC 15,1999 SCCR 1003, 2000 JC 173�� 41, 127, 177–9 Tierney v Allan 1989 SCCR 344�� 50–1, 59 Todd v McDonald 1960 JC 93�� 228–9 Tonge v HM Advocate 1982 SCCR 313�� 42, 45–6 Tudhope v Chung 1985 SCCR 139�� 104–5 Tudhope v Dalgliesh 1986 SCCR 559�� 47 Tudhope v Lawrie 1979 SLT (Notes) 13�� 153 Tudhope v Stewart 1986 SCCR 384, 1986 JC 88�� 107 Tunnicliffe v HM Advocate 1991 SCCR 623�� 47 Urquhart, Petitioner 2003 GWD 26–735�� 74 Van Mechelen v The Netherlands (1998) 25 EHRR 647�� 128–9 Waddell v Kinnaird 1922 JC 40�� 280 Wade v Robertson 1948 JC 117�� 48 Walker v HM Advocate 1999 SCCR 986�� 104 Walker v HM Advocate 1999 SLT 1388�� 205 Walker v Lockhart 1993 SCCR 148�� 74 Wallace v HM Advocate 1959 JC 71�� 81 Wann v Macmillan 1956 SLT 369�� 259 Ward v HM Advocate 1972 SLT (N) 22�� 76 Whillans v Harvie [2010] HCJAC 91, 2010 SCCR 878�� 148 White v Allan 1985 SCCR 85�� 126 White v HM Advocate 1986 SCCR 224�� 203 White v HM Advocate 1989 SCCR 553�� 270 Whyte v Vannet 1998 SCCR 461�� 58 Wilkinson v HM Advocate 1991 SCCR 856�� 276–7 Williamson v Aitchison 1982 SLT 399�� 108–9 Williamson v McClelland 1913 SC 678�� 205 Williamson v Wither 1981 SCCR 216�� 227, 285 Willis v HM Advocate 1941 JC 1�� 47 Wilson v Hill 1943 JC 124�� 13 Wilson v HM Advocate 1987 SCCR 217�� 214 Wilson v HM Advocate 2001 SCCR 455�� 211–12 Wilson v McAughey 1982 SCCR 398�� 214 Wilson v Milne 1975 SLT 26�� 53 Wilson v Robertson 1986 SCCR 700�� 32 Wingate v McGlennon 1991 SCCR 133�� 39 Wishart v HM Advocate [2013] HCJAC 168, 2014 SCCR 130�� 2, 100

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xl Criminal Evidence and Procedure: An Introduction Wishart v Procurator Fiscal, Kirkcaldy 2021 SCCR 31�� 176, 216 W(L) v HM Advocate 2021 SCCR 15�� 207, 227 Wright v HM Advocate 2006 SCCR 455�� 135 X Ltd and Y Ltd v United Kingdom 28 DR 77 (1982)�� 93 Yarrow Shipbuilders Ltd v Normand 1995 SCCR 224�� 103 Yeudall v William Baird & Company 1925 JC 62�� 98 Young v HM Advocate 1997 SCCR 647�� 227 Young v McLeod 1990 SCCR 479�� 145

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Preface

When this book was first published, in 1996, it was intended as an introductory account for those coming new to the subjects of criminal evidence and criminal procedure, which, between them, provide the framework within which criminal courts conduct their business and take their decisions. It turned out also to be helpful to established practitioners who were interested in a practical and useable account of the essentials of the subject. I am, of course, pleased that it has been helpful in that way and hope that this edition will be equally helpful. The book is not, however, intended to be a comprehensive reference account of the law of criminal evidence and procedure. That already exists elsewhere. Nor have I attempted exhaustive analysis of any aspect of the law. The intention remains, as it always was, to provide an introductory account; but I hope that the book will provide at least a starting point for most issues that arise in criminal practice. There is a substantial degree of interpenetration between evidence and procedure. Not only can procedural irregularities have a profound effect upon the admissibility of evidence but many questions relating to evidence also have consequences for the procedure which is followed. Accordingly, so far as possible, this book sets out to describe evidence and procedure in an integrated way. The law of procedure is considered in the general order in which steps occur in prosecutions. Solemn and summary procedure are dealt with together, so far as possible, since the same principles underlie both and they share many common rules. Where the two must be treated separately, solemn procedure is taken first, following the pattern of the Criminal Procedure (Scotland) Act 1995. Matters of evidence are dealt with as they become relevant to the topics dealt with. As a result, many rules of evidence are considered primarily in the context of solemn procedure, which is the context in which they were developed. Although summary cases account for the great majority of criminal cases in terms of numbers (in 2018–2019, 94 per cent of people convicted in court were prosecuted in summary courts), aspects of the law of evidence are easier to understand if the perceived needs of jury trial are kept in mind.

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xlii Criminal Evidence and Procedure: An Introduction

The Criminal Procedure (Scotland) Act 1995 is the single most important source for the law of criminal evidence and procedure and a thorough familiarity with that Act is essential. It consolidated the law and the drafting intention was to provide in it everything necessary for day-to-day work in the criminal courts. More recent criminal procedure legislation has often operated by making insertions into that Act. Accordingly, although at about the same time Parliament passed a number of other Acts which have a bearing on criminal practice, in this book the expression ‘the 1995 Act’ refers exclusively to the Criminal Procedure (Scotland) Act 1995. Two more recent pieces of legislation are also particularly important. They are the Criminal Justice and Licensing (Scotland) Act 2010 (referred to as ‘the 2010 Act’) and the Criminal Justice (Scotland) Act 2016 (‘the 2016 Act’). It should be borne in mind that the law develops. A notice asking ‘have you noticed the recent changes to the legislation?’ has been a fixture on the counter at Justiciary Office for several years. Law reform is a constant and continuing activity and if the textbook writer waited for a lull, nothing would ever get published. For this edition, the picture is complicated by the measures introduced to deal with the coronavirus pandemic which began in 2019 and had a profound effect on the operation of the courts during 2020 and 2021. I have tried to take account of those measures and have tried to make it clear when I have been doing that because they are in theory a temporary departure from ‘normal’. Having said that, for some years, there has been discussion about making much greater use of digital technology in criminal courts and the pandemic has meant that working methods which might otherwise have been a long time in development have been introduced in short order. They have tended to relate to practice – to the way things are done – rather than to the content of the law. However, even after the threat of infection has receded, some of those measures are likely to remain. We are unlikely ever to return to what we used to think of as normal. The prudent reader of this or any other textbook will note the date at which the law is stated and make his or her own enquiries about more recent developments. In this book, the law is stated as at 28 February 2021. Finally, I would like to thank Laura Williamson, Fiona Conn and Sarah Foyle of Edinburgh University Press, Ciara Daly, who has been the copy editor for this book, and Rowena Gavars, who prepared the index and tables. Without them, this edition would not have been published. They have worked hard and it has been a pleasure to deal with them. I am very grateful.

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Chapter one

Absolute Basics

Types of procedure The first thing which has to be understood about criminal procedure is the division of cases between those dealt with under solemn procedure and those dealt with under summary procedure. Solemn procedure is the procedure under which serious offences are dealt with, whilst summary procedure relates to less serious matters. At trial, solemn procedure involves a jury and summary procedure does not. The best explanation is probably that provided by Trotter, writing in 1936. Trotter characterises summary procedure by what it does not involve: ‘Criminal jurisdiction is exercised by summary procedure when the trial takes place before a judge or judges alone, without a jury, by summary and expeditious process, and without all the formalities and solemnities requisite in solemn procedure. Hence the term “summary” procedure.’1

The courts There are three levels of criminal court in Scotland. The High Court of Justiciary is the most senior of these. The High Court sits as a trial court, dealing exclusively with trials under solemn procedure, where it is made up of one judge and a jury of fifteen. The High Court also sits as an appeal court. In this book, the expression ‘the High Court’ is used to refer to that court sitting as a trial court. The expression ‘the Appeal Court’ is used to refer to a bench of two or more High Court judges sitting to hear criminal appeals. The intermediate level court is the sheriff court. At trial, it may consist of a sheriff sitting with a jury of fifteen (under solemn procedure) or of a sheriff or summary sheriff sitting alone (under summary procedure). Appeals from the sheriff court under solemn procedure are dealt with by the Appeal Court. Appeals arising under summary procedure are dealt with in the Sheriff Appeal Court. 1

T Trotter, Summary Criminal Jurisdiction According to the Law of Scotland (1936) p. 3.

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2 Criminal Evidence and Procedure: An Introduction

The lowest level of court is the Justice of the Peace Courts (the JP court), which usually consists of one or more lay people sitting with advice from a legal assessor but is sometimes constituted by a summary sheriff. It deals only with cases under summary procedure and appeals lie to the Sheriff Appeal Court. The Supreme Court of the UK has no jurisdiction in relation to Scots criminal law and procedure generally but does have jurisdiction in relation to devolution issues and compatibility issues. That means that it sometimes considers issues arising in Scottish criminal courts. The significance of this is explained in Chapter Seven below.

The parties For practical purposes, all prosecutions in Scottish courts are public prosecutions conducted at the instance of the Lord Advocate (referred to in indictments as ‘Her Majesty’s Advocate’, which is abbreviated to either ‘HM Advocate’ or ‘HMA’) or at that of the procurator fiscal for the court in which the proceedings take place. The prosecution is usually referred to as ‘the Crown’. The accused person is referred to as ‘the accused’ or, strictly, once a jury has been selected, as ‘the pannel’. A person who says that he or she has been the victim of a crime is not a party to the proceedings. Prior to determination of the charge, he or she ought to be referred to as ‘the complainer’ (not as ‘the victim’).2

Finding the law The Criminal Procedure (Scotland) Act 1995 As indicated in the preface, the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) is, by a large margin, the single most important source for the law of criminal evidence and procedure. Going into court without immediate access to a copy of the 1995 Act is asking for trouble. Going into court with an out-of-date copy is almost as bad. The 1995 Act has been amended repeatedly, sometimes by substitution and often by inserting additional material. The Scottish Law Commission, in a report published in 2004, commented that: ‘[s]ince the time of its enactment the Criminal Procedure (Scotland) Act 1995 . . . has been the subject of numerous amendments. As a consequence the Act has become cumbersome in form and difficult to use’.3 2

Wishart v HM Advocate 2014 SCCR 130. Report on Insanity and Diminished Responsibility (Scot. Law Com. No.195) para.14.

3

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For example, between the original sections 271 and 272, one now finds sections 271A through the alphabet to 271Z. The 1995 Act as amended is available in published, paper form and, on certain subscription websites, electronically. It is also available, free of charge, online at the UK statute law database,4 though care should be taken because that source has not always been kept up to date properly. Act of Adjournal (Criminal Procedure Rules) 1996 The ‘nuts and bolts’ of procedure are set out in the Act of Adjournal (Criminal Procedure Rules) 1996.5 The Rules are subject to amendment and updating from time to time. They make detailed provision for the manner in which various notices have to be given, the content required in various applications, procedural forms and so forth. The content of most of those Rules is too detailed for this introductory text but the practitioner cannot afford to ignore them in his or her day-to-day work. In particular, if there is an application of any sort to be made to the court (for example, to change the address that a person on bail has as his ‘domicile of citation’6) it is likely that the Criminal Procedure Rules set out a procedure and a form that is to be followed. Practice notes There is a series of practice notes issued by Lords Justice-General about the way in which court business is to be conducted. Those practice notes impose responsibilities on solicitors, counsel and procurators fiscal and, from time to time, a practitioner is required to explain publicly why he or she has failed to meet the standards expected. The experience is an uncomfortable one and best avoided. Case law Criminal appeals are dealt with by a bench of two or more judges of the High Court of Justiciary or of the Sheriff Appeal Court. Their decisions are available in published, paper form in Justiciary Cases (‘JC’, found in the Session Cases volumes), Scottish Criminal Case Reports (‘SCCR’), Scots Law Times (‘SLT’) and online at the Scottish Courts website,7 where there is a searchable judgments database. That database also includes decisions of single judges of the High Court and of sheriffs, which might also be 4

http://www.legislation.gov.uk (last accessed 4 June 2021). SI 1996 No. 513 (S47). 6 This is explained in Chapter Six. 7 Scottish Courts and Tribunals, http://www.scotcourts.gov.uk (last accessed 4 June 2021). 5

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4 Criminal Evidence and Procedure: An Introduction

helpful. Cases on that website which have not, or not yet, been reported in published form are given the ‘neutral citation’ which appears on the first page (for example, [2018] HCJAC 77). Cases are also available online at the BAILII website.8 As well as being published in the same reports series as decisions of the Appeal Court, UK Supreme Court cases are available online9 and they also have neutral citations (for example, [2009] UKSC 11). The Supreme Court succeeded to the jurisdiction of the Judicial Committee of the Privy Council and the cases of that tribunal remain available online.10 They, too, have neutral citations (for example, [2008] UKPC 46). The guarantees accepted by the UK in terms of the European Convention on Human Rights and the decisions of the European Court of Human Rights can be important in understanding criminal evidence and procedure law. The Convention is available at the Council of Europe website11 and the case law of the Court is available in published form in the European Human Rights Reports (‘EHRR’) and through the Court’s website,12 where it is best referred to by the case name, application number and date of decision (for example, Dickson v The United Kingdom, 44362/04, 4 December 2007).

Proof In any trial, the prosecution undertake to prove, by evidence, that the accused person committed the particular crime charged. Before the jury, or the judge under summary procedure, can hear and consider that evidence, it has to be admissible and much of the law of evidence is concerned with rules about admissibility. There are also rules about sufficiency of evidence – about how much evidence is required before the court can consider whether to convict. Obviously, though, even if there is sufficient admissible evidence to allow the court to consider whether to convict, the court should not do so if it does not trust the evidence which is offered to it; so the credibility and reliability of the witnesses has to be considered. And, even if there is enough evidence 8

British and Irish Legal Information Institute, http://www.bailii.org (last accessed 4 June 2021). 9 Supreme Court, http://www.supremecourt.uk/decided-cases/index.html (last accessed 1 July 2021). 10 Privy Council, http://www.jcpc.uk/ (last accessed 1 July 2021). 11 Council of Europe, http://conventions.coe.int/Treaty/en/Treaties/Html/005. htm (last accessed 4 June 2021). 12 European Court of Human Rights, http://www.echr.coe.int (last accessed 4 June 2021).

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and it is credible and reliable, the court must not convict unless a particular standard is reached. It is not enough to be satisfied that the accused might be guilty or even that he or she is probably guilty. On the other hand, proof to mathematical certainty is not required. The Crown has to prove its case beyond reasonable doubt. Burden of proof The most fundamental principle in the law of criminal evidence and procedure is that the burden of proof is at all times upon the prosecution. The prosecution is required to prove its case and the accused does not have to prove anything. Accordingly, the prosecution leads its evidence first and if, at the end of the prosecution case, there is insufficient evidence for a conviction, the accused is entitled to be acquitted in terms of the 1995 Act sections 97 (solemn procedure) or 160 (summary procedure). Insufficiency may arise because there was simply never going to be enough evidence for a conviction (in which case the Crown made a mistake when it commenced proceedings); because essential parts of the prosecution evidence have been ruled inadmissible; or because Crown witnesses have not given the evidence they were expected to give. As a result of the principle that the burden of proof is at all times on the prosecution, the hope that some investigators and some complainers express – that a case will succeed because ‘the accused will never be able to explain it at court’ – is entirely illusory. The accused does not have to explain anything at all, ever, unless the prosecution case is sufficient in itself to justify a conviction. This is the meaning of the presumption of innocence as it has long been recognised and understood in Scots law and as it is expressed in article 6(2) of the European Convention on Human Rights (‘ECHR’). Whatever the absolute truth about what happened, the accused cannot be found guilty by a court unless the prosecution provides evidence to prove his or her guilt; and, of course, they cannot be punished by a criminal court unless they have first been found guilty. As the European Court of Human Rights put it in Barberà, Messegué and Jabardo v Spain13 (speaking of article 6(2) ECHR): ‘Paragraph 2 embodies the principle of the presumption of innocence. It requires, inter alia, that when carrying out their duties the members of a court should not start with the preconceived idea that the accused has committed the offence charged, and any doubt should benefit the accused.’

What this means is that when the accused is charged with a crime it is up to the prosecution to lead evidence in that trial which shows that the 13

(1989) 11 EHRR 360.

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6 Criminal Evidence and Procedure: An Introduction

particular crime charged was committed and that the particular accused is the person who committed it. In Howitt v HM Advocate14 it was held that the outcome of an earlier trial against other persons did not establish facts that had any validity outwith the context of that earlier trial. In that case, it was an earlier acquittal with which the court was concerned; but the principle applies equally if the earlier trial ended in a conviction. In HM Advocate v Duffy,15 the Crown tried to prove that property was benefit from crime for the purposes of a money laundering prosecution by leading evidence that the people from whom the accused received it had convictions recorded against them for misuse of drugs offences. Applying Howitt, the court refused to allow that approach. What one jury decided about a fact does not tell a later court, considering a different case, anything at all, even about that same fact. Although the accused is never obliged to give evidence, there does come a point in many trials at which the evidence led by the prosecution is sufficiently complete and sufficiently convincing that the accused can expect to be convicted unless evidence is led which casts doubt on the reliability of the prosecution evidence or on the conclusions to be drawn from it. In that situation it is sometimes said that the ‘tactical’ or ‘evidential’ burden has passed to the accused; but to say that there is such a burden on the accused is simply a way of expressing a judgment about the strength of the prosecution case that has unfolded against them. Accordingly, in Lambie v HM Advocate,16 the Appeal Court said that it was incorrect to say that an accused who wished to invoke the defence of incrimination (that is, to say that the offence was committed by some particular other person) must prove that defence. All that is necessary for the acquittal of the accused is that the evidence leaves a reasonable doubt in the minds of the jury. So, in a Lambie situation, it is up to the prosecution to persuade the jury that it is proved beyond reasonable doubt that it was the accused who committed the crime, not the incriminee. Effectively, the prosecution has to persuade the court that there is no real possibility that it was the incriminee who committed the offence. If evidence is given by the accused or by any other witness that leads the jury to think that there is at least a real possibility that the crime might have been committed by the incriminee and not the accused, then that is a reasonable doubt and the accused must be acquitted.

14

2000 SLT 449. 2009 SCCR 20. 16 1973 JC 53. 15

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Admissibility of evidence It is a serious matter to charge any person with crime. It was even more serious during the nineteenth century and earlier, when the principles which still underpin the law of evidence were being developed. At that time, capital punishment was available for a wide range of offences and the death penalty was imposed with some frequency. It was (and, since miscarriages of justice remain unacceptable, even if reversible, still is) of considerable importance to ensure that the evidence laid before a court is evidence that was of a sort which can be regarded as trustworthy. The law developed what is called an ‘exclusory’ approach to criminal evidence. What that means is that much of the law about the admissibility of evidence in Scotland consists of a set of rules relating to the exclusion of those types of evidence which are perceived as unfair or not tending to assist a just result. If evidence is excluded as inadmissible, the sheriff or JP in a summary case will exclude it from consideration. In a case under solemn procedure, the jury will not hear it. It will not influence the verdict. If it is a piece of evidence which is essential to the proof of the case, the result of it being excluded as inadmissible will be an insufficiency of evidence and the case will fail without the truth of the allegations ever being considered. Sufficiency of evidence The importance of the concept of sufficiency is that even if all of the evidence which is admissible is believed, the case will fail unless there is evidence sufficient in law to entitle the court to consider that the essential allegations have been proved. Fundamentally, this means that there must be corroboration – that is, there must be two sources of evidence to prove every element of the charge that is essential to the definition of the crime. (Corroboration has nothing to do with admissibility of evidence and it is not the case that evidence which is not spoken to by two witnesses is not admissible.) The identification of the accused as the person who committed the crime is always one of the essentials and is not proved unless there are two separate sources of evidence to demonstrate that it was the accused. As to what happened, there is a distinction between those matters which are essential to the constitution of the crime and those things which are mere narrative (a point made with particular clarity by Lord McCluskey in Fox v HM Advocate17). For example, assault is a deliberate physical attack on another person intending to do them harm or put the person in fear of such harm. The charge cannot be proved unless there are two sources of evidence to show that such an attack took place. It is not, however, necessary to have two sources of 17

1998 SCCR 115.

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8 Criminal Evidence and Procedure: An Introduction

evidence for every part of what the charge alleges was done in the course of the assault. So, for example, if the charge alleges that the assault was committed by punching the complainer on the head and kicking them on the leg, the allegation of the kick does not have to be deleted just because only one witness gives evidence about that particular aspect. It is necessary at this point to notice an analytical division of evidence into direct and circumstantial. The terms describe a relationship between evidence and the facts which a party is trying to prove (‘the facts in issue’). Direct evidence consists of a witness’s testimony about direct observation of a fact in issue, whereas circumstantial evidence is indirect evidence of a fact in issue. It is testimony about facts from which the fact in issue may be inferred. Circumstantial evidence consists of evidence about a fact that is at least consistent with the fact to be proved but which might also be consistent with other possibilities. It becomes capable of proving the fact in issue when there is an accumulation of such evidence, perhaps (but not necessarily) in combination with direct evidence of the fact in issue, such that, unless one is to resort to speculation or believe that coincidence has been heaped upon coincidence, the combined effect of the evidence is consistent only with the matter to be proved. The important point is that both direct and circumstantial evidence are equally valid, at least for purposes of sufficiency of evidence. There is no limit on the ways in which adminicles of admissible evidence can interact to amount to a sufficiency. In Howden v HM Advocate,18 for example, it was held that an accused charged with two offences, positively identified by several witnesses as the perpetrator of the first crime but only tentatively identified as the perpetrator of the second was properly convicted of the second where circumstantial evidence established beyond reasonable doubt that the same person committed both offences. Little v HM Advocate19 is an example of a murder case proved in part by circumstantial evidence and, in considering the case, the Appeal Court pointed out that the question is not whether each of the several circumstances points by itself towards the fact in issue but whether taken together they are capable of supporting the inference that the fact in issue was so. So, for example, in that case unusual transactions on a building society account were of importance in establishing incitement to murder and were relevant even though they did not bear directly on the facts. An admission by the accused can provide one source of evidence. Some other source or sources will be required as corroboration. So in Innes v HM Advocate,20 on a charge of theft, the evidence to identify the accused was: (i) an 18

1994 SCCR 19. 1983 SCCR 56. 20 1955 SLT (Notes) 70. 19

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admission to a single police officer; (ii) possession of the stolen property, again spoken to by a single witness, not the officer in (i); and (iii) presence at the time of the theft, spoken to by yet another single witness. In upholding the conviction Lord Justice-Clerk Thomson said ‘[s]o long as there are separate sources, each incriminating the accused person it is unnecessary to have more than one witness to each source’. Heywood v Smith21 provides another illustration. In that case the evidence of one police officer who saw the accused swallow an object thought to be drugs, combined with a confession to having done so heard by another officer, was sufficient to convict the accused of attempting to pervert the course of justice. The argument in that case was about the admissibility of the confession but the point of the argument was to try to reduce the prosecution case to the evidence of a single witness as to seeing the swallowing of the object, which would have been insufficient. It must be understood that all of this relates to proof by the Crown. In Robertson v Wilson22 Lord Cooper said ‘it is not essential that the evidence tendered by the [accused] should be independently corroborated’, and in King v Lees23 the Crown conceded that a sheriff had been wrong to refuse to give effect to the accused’s evidence that his breath alcohol was attributable to drinking after a road accident and not before it (so giving himself a defence to a drink-driving charge). The sheriff’s reasoning, which was in error, had been that the accused’s evidence was uncorroborated. Credibility and reliability The oath which is taken by a jury at the very start of a trial includes the phrase ‘give a true verdict according to the evidence’. Whether the trial is heard by judge and jury or, under summary procedure, by a judge sitting alone, it is upon the evidence that the verdict must be reached and the case decided. The most basic question for whoever is deciding the facts is, therefore, whether they are willing to accept any particular piece of evidence. Two concepts are relevant to that. The first is credibility, which refers to whether the witness who gives the evidence is, on that point, telling the truth. If he or she is not, then, obviously, that piece of evidence, given by that witness, must be rejected. The second is reliability, which refers to the possibility of mistake. A witness might be honest and truthful but simply mistaken about what he or she heard, saw or remembers. If the witness is not reliable on a particular piece of evidence, that piece of evidence, given by that witness, must be rejected. This must not be taken too far. The evidence given by the unreliable witness will be rejected but it is possible (though not very common in practice) 21

1989 SCCR 391. 1949 JC 73. 23 1993 SCCR 28. 22

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that another witness will give evidence about the same thing and be both credible and reliable. In that case, the fact can be treated as established on the basis of what is said by the credible and reliable witness. Next, the evidence of a witness does not have to be rejected in whole just because he or she is not credible or reliable on one point. The jury or judge can be selective. Parts of what a witness says can be accepted while other parts are rejected. In Anderson v HM Advocate,24 the Appeal Court said: ‘it is well settled that a jury may accept parts of a witness’s evidence, and reject other parts. So the fact that the complainer’s evidence was in parts contradicted by other witnesses does not mean that her entire testimony must be rejected, even assuming the contrary evidence to have been accepted by the jury. Thus the jury in the present case were entitled to conclude that the complainer was wrong in her evidence about the locus.25 The jury may also have rejected the complainer’s evidence as to her sobriety at the time, and the circumstances in which her underwear came to be torn. But equally the jury were entitled to accept other parts of the complainer’s evidence. For example, the jury were entitled to accept the evidence of the complainer and J (and thus to reject the evidence of Mr and Mrs M) on the question whether there had been any intimate behaviour such as kissing and cuddling between the complainer and the appellant before the intercourse complained of . . . ’.

Finally, if the jury or judge rejects a piece of evidence on the basis of the credibility or reliability of the witness, that piece of evidence should simply be set aside. It drops out of the picture. Its rejection does not prove that the opposite is true. Standard of proof The standard to which the prosecution case must be proved in Scotland is ‘beyond reasonable doubt’. Precisely what that expression is intended to convey is very difficult to expound, and in McKenzie v HM Advocate,26 Lord Justice-Clerk Thomson counselled against attempts at reformulation. That is all very well but it is unhelpful both to the student and, one may suppose, to juries. What is generally understood is that, before an accused person can be convicted, the evidence must be such as to persuade those who have to decide the facts in the case – the jury, sheriff, summary sheriff or JP – that there is no reason of any substance, no material reason, to doubt the accused’s guilt. The standard to be reached is much higher than 24

2007 SCCR 507 at 517. ‘Locus’ means the place where the crime is alleged to have taken place. 26 1959 JC 32. 25

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a mere balance of probabilities (under which it would be enough if the thing sought to be proved were more probably true than not) but certainty is not required. Juries are usually told that a reasonable doubt is a doubt based on reason but not a speculative or fanciful doubt, that it is the kind of doubt which would cause them to hesitate in some important decision in their own affairs such as a decision to marry, to take a particular job or to move house. A reasonable doubt may exist because the evidence is simply not cogent enough to establish the guilt of the accused to the standard required, perhaps because there are gaps in it or perhaps because important parts of it are either not believed or are regarded as unreliable. In this situation, the prosecution has failed to discharge the burden of proof and the accused must be acquitted. Alternatively, if the accused gives evidence, or calls witnesses who give evidence, that evidence may be sufficiently credible to give rise to doubt about the prosecution case on one of the essentials of the charge, even though the jury or judge might not be prepared to go as far as to say that they actually believed the defence evidence. Of course, if the defence evidence is believed and points to the accused’s innocence, that will certainly be an end of the matter.

Excusal of procedural irregularities The rules of criminal evidence and procedure matter because their purpose is to ensure that justice is done in an orderly and predictable way, by a fair procedure which, if at all possible, in the interests of all who find themselves subject to the jurisdiction of the Scottish courts, reaches a just result and does not lead to innocent people being convicted. In an ideal world, procedural mistakes would never occur. We do not live or work in an ideal world. It is, therefore, comforting to note that section 300A of the 1995 Act empowers courts to excuse procedural irregularities and that the categories of irregularities that can be excused are wide. For an example, one can consider Newlands v HM Advocate,27 in which section 300A was used to deal with the problem which arose when the indictment was lost in the hands of the Sheriff Clerk between the plea of guilty being tendered and the sentence being imposed. A procedural error will not, therefore, be inevitably catastrophic. This should not, however, lead to complacency. The fact that the court can excuse an irregularity does not necessarily mean that it will do so. The Appeal Court in Newlands noted that it could not be said that there was 27

2014 JC 183.

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any prejudice to the appellant. If there had been, the result might well have been different. In the Court of Session it has been said, for civil cases, that the rules of court are designed to serve the interests of justice and that the interests of justice are not well served by an approach that too readily excuses failures to comply.28 The same could be said of section 300A.

Chapter overview • Criminal cases are dealt with either under solemn procedure (with a jury) or summary procedure (without a jury and with fewer formalities). • There are three levels of criminal court: High Court of Justiciary (cases under solemn procedure; appeals under solemn procedure). Sheriff Court (cases under solemn procedure and under summary procedure; appeals under summary procedure in the Sheriff Appeal Court). JP court (cases under summary procedure). • All prosecutions are public prosecutions conducted at the instance of the Lord Advocate (solemn procedure) or of the procurator fiscal (summary procedure). • The law is to be found in: statute (principally the Criminal Procedure (Scotland) Act 1995). the Act of Adjournal (Criminal Procedure Rules) 1996. practice notes. case law. • The burden of proof is always on the prosecution and, before there can be a conviction, the essentials of the charge and the identity of the accused as the person who committed the offence must be proved by admissible evidence (that is, evidence which does not breach an exclusory rule) by sufficient evidence (that is, by evidence from not less than two sources, which may be direct evidence, circumstantial evidence or a combination of direct and circumstantial). by evidence which the decision-maker finds both credible and reliable beyond reasonable doubt • Procedural irregularities can be excused but excusal is not a foregone conclusion.

28

Brogan v O’Rourke Ltd 2005 SLT 29.

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Chapter two

Jurisdiction

If a crime is not within the jurisdiction of the Scottish courts then it cannot be the subject of a prosecution in Scotland and Scottish rules of procedure and evidence will not apply to it. The converse – that a crime within the jurisdiction of the Scottish courts will only be subject to Scottish rules – does not hold true. For a variety of reasons crimes can sometimes be subject to the jurisdiction of the courts of more than one country. We are concerned here only with whether or not the Scottish courts will have jurisdiction. Whether the courts of some other country might also take jurisdiction is, for us, immaterial. The basis on which the court has jurisdiction must be clear from the charge. If the basis on which the court is said to have jurisdiction is not clear from the charge, that is a ‘fatal nullity of the proceedings’.1 Criminal justice systems can take jurisdiction on a range of different bases. For example, in many civilian legal systems, jurisdiction is taken on the basis of the nationality of the alleged offender, upon the theory that states are entitled to expect certain standards of behaviour from their citizens and to prosecute them if they are alleged to have fallen short of those standards. However, the main basis for jurisdiction in all states is territoriality. This means that if the crime is committed within a country, the courts of that country will have jurisdiction to deal with the crime.

Jurisdiction based on territory General The jurisdiction of the Scottish courts is primarily territorial in its basis. If the locus of the alleged offence which is libelled is in Scotland, that will be enough to satisfy the need for the basis of jurisdiction to be clear from the charge. The High Court of Justiciary has jurisdiction as a trial court in respect of all indictable crimes committed anywhere in Scotland. ‘Scotland’ for the 1

Lord Justice-General Normand in Wilson v Hill 1943 JC 124.

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purposes of criminal jurisdiction includes the territorial sea, the breadth of which is now twelve nautical miles.2 A sheriff court has jurisdiction over crimes committed in the sheriffdom, as does a JP court.3 There are six sheriffdoms in Scotland (Grampian, Highland and Islands; Tayside, Central and Fife; North Strathclyde; Lothian and Borders; Glasgow and Strathkelvin; South Strathclyde, Dumfries and Galloway) and each of these is divided into sheriff court districts. So, for example, in the sheriffdom of Tayside, Central and Fife, there are district sheriff courts at Forfar, Dundee, Perth, Kirkcaldy, Dunfermline, Alloa, Stirling and Falkirk. High Court trials can take place anywhere in Scotland. In the sheriff and JP courts, it is the usual practice to prosecute crimes within the sheriff court district in which they are committed. The only requirement in law, however, is to try an offence within the sheriffdom in which it is committed. By section 4(2) of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act), where an offence is alleged to have been committed in one district in a sheriffdom it is competent to try that offence in any other district in that sheriffdom. The key question is what constitutes committing the crime and much will depend on the manner in which the law defines the conduct necessary to constitute the offence. In Gilchrist v Scott,4 for example, the offences related to the ‘publication’ of material. On analysis, ‘publication’ meant printing or distributing. Accordingly, the fact that the newspaper in question was circulated in Paisley did not suffice to give jurisdiction to Paisley Sheriff Court when printing and distribution took place elsewhere. Fraud and cross-border crimes It is usually obvious whether the conduct constituting the crime has taken place within the territory of the court; but not always. Particular issues arise in relation to crimes such as fraud. That crime is defined as a false pretence, dishonestly made, in order to bring about a practical result.5 The practical result is important because it is the bringing about of a practical result that completes the crime (otherwise, the crime is attempted fraud).6 Whereas a crime such as assault is usually instantaneous and involves the accused and the complainer being in the same place (but only usually – see what Lord 2

Territorial Sea Act 1987 s. 1(1)(a). Criminal Proceedings etc. (Reform) (Scotland) Act 2007 s. 62. 4 2000 SCCR 28. 5 JHA Macdonald et al., A Practical Treatise on the Criminal Law of Scotland, 5th edn (Edinburgh: W. Green, 1948), p. 52. 6 Adcock v Archibald 1925 JC 58. 3

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Ardmillan had to say about assault by shooting in HM Advocate v Allan,7 quoted later in this Chapter), it is common for a false pretence to be made by electronic message or telephone from one place and for it to take effect in another; or it may be that the pretence is made from Scotland to another jurisdiction. There are many possible permutations. The clearest case on this sort of situation is Laird and Goddard v HM Advocate.8 That case involved a fraudulent scheme, hatched in Scotland, under which the accused pretended, by telex and telephone from Scotland to a company in England, that they could supply steel of a particular quality. They delivered steel of a different quality and covered up the difference by uttering (that is, passing) forged documents. The delivery and uttering took place in England. Refusing their appeal against conviction, during which it had been argued that the Scottish court had no jurisdiction, Lord Justice-Clerk Wheatley said: ‘it seems to me that where a crime is of such a nature that it has to originate with the forming of a fraudulent plan, and that thereafter various steps have to be taken to bring that fraudulent plan to fruition, if some of these subsequent steps take place in one jurisdiction and some in another, then if the totality of the events in one country plays a material part in the operation and fulfillment of the fraudulent scheme as a whole there should be jurisdiction in that country’.

This is, of course, expressed with particular reference to a fraudulent scheme but there is no reason why it should not apply to any criminal scheme. The test would be whether the totality of the events in Scotland plays a material part in the scheme as a whole. Laird and Goddard proceeded under reference to three much older cases. These were HM Advocate v Bradbury,9 HM Advocate v Allan10 and HM Advocate v Witherington.11 In Bradbury the accused wrote letters from England to persons in Scotland. In them he made fraudulent representations and induced the recipients to send goods to him in England. The Scottish courts had jurisdiction because the loss occurred in Scotland. Allan concerned an accused who had, from London, placed fraudulent advertisements in Scottish newspapers. Persons in Scotland were induced to send money to London. It was

7

(1873) 2 Couper 402. 1984 SCCR 469. 9 (1872) 2 Couper 311. 10 (1873) 2 Couper 402. 11 (1881) 8R(J) 4. 8

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16 Criminal Evidence and Procedure: An Introduction

objected that there was no jurisdiction in the Scottish court because the accused’s actings were all in London but Bradbury was followed and the objection was repelled. Lord Ardmillan said: ‘if a man, for instance, standing in one country shoots a man across the border, thus committing a crime which takes effect in another country, or if he commences a theft or fraud in one country and continues its perpetration into another, he is amenable in either case to the jurisdiction of the courts of both countries’ [emphasis added].

Witherington was a full bench decision (that is, a decision by a number of judges greater than the quorum for an appeal and therefore particularly authoritative) on similar facts to Bradbury in which the Appeal Court confirmed the approach taken in Bradbury. In Lipsey v Mackintosh12 where a letter was sent from one sheriff court district to another, it was held that both sheriff courts had jurisdiction. Where an offence is committed in a harbour, river, arm of the sea or other water, tidal or otherwise, which runs between or forms the boundary of two or more courts, the 1995 Act section 9(1) permits the offence to be tried by any one of those courts. An offence committed within 500 metres of the boundary of the jurisdiction of two or more courts may be tried by any of those courts in terms of the 1995 Act section 9(2). By section 9(3), which is expressed in somewhat antiquated language, an offence committed against any person or in respect of any property in or on a carriage, cart, or vehicle employed in a journey by road or railway, or on board any vessel employed in a river, loch, canal or inland navigation, may be tried by any court through whose jurisdiction the journey passes. On the wording of the subsection this will be so even though it may be possible to show that the conveyance concerned was, at the time of the offence, in some district other than that in which the case is prosecuted. Crimes in more than one sheriff court district In terms of the 1995 Act section 10, where a person is alleged to have committed crimes within the application of the section in more than one sheriff court district, they may be prosecuted in respect of all of them in whichever sheriff court district the Lord Advocate determines. The section applies: (a) to a crime committed partly in one sheriff court district and partly in another (the most obvious examples of which would be a continuing offence such as reset or the Lipsey v MacIntosh type of case); (b) to

12

1913 SC(J) 104.

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Jurisdiction 17

crimes ‘connected with each other’ (an expression which is undefined) ‘but committed in different sheriff court districts’; and (c) to crimes committed in different sheriff court districts in succession which, if they had all been committed in a single district could have been tried under one indictment. The precondition that they should all be capable of being tried under a single indictment excludes the operation of the section where one of the offences has already been prosecuted and the accused has been convicted, even if sentence has been deferred and the offence has therefore not been finally disposed of. An example of the kind of situation contemplated in (c) is to be found in Mackie v HM Advocate.13 The appellant was indicted in Glasgow Sheriff Court in respect not only of offences in Glasgow but also in respect of a charge of theft committed in Edinburgh. No attempt was made to argue that this was incompetent and, standing the terms of the statutory predecessor of section 10, any such argument would have received short shrift. What was argued, however, was that the fact that the prosecutor had deserted (that is, dropped) the ‘Glasgow’ charges against the accused before the jury was empanelled, leaving only the ‘Edinburgh’ charge meant that Glasgow Sheriff Court no longer had jurisdiction. The Appeal Court held, however, that jurisdiction does not depend on what charges are remitted to the knowledge of the assize (that is, what charges are on the indictment when the jury takes its oath at the start of the trial) but on whether the accused is lawfully indicted to the court. What happens thereafter is irrelevant.

Jurisdiction based on nationality or residence There are some offences for which jurisdiction is taken on the basis of a version of the nationality principle. The most important of these in practice are set out in the 1995 Act section 11 and in section 55 of the Sexual Offences (Scotland) Act 2009 (the 2009 Act), though there are others. Section 11(1) and (2) apply to British citizens and subjects. Section 55 of the 2009 Act applies to UK nationals and UK residents. Consistency might have been helpful but it has not, so far, been achieved. By section 11(1) of the 1995 Act, any British citizen or British subject who, in a foreign country, commits what would have been murder or culpable homicide had it been committed in Scotland is guilty of that crime as if it had been committed in Scotland. By section 11(2), if a British citizen or subject employed in the service of the Crown when acting or 13

1969 JC 20.

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18 Criminal Evidence and Procedure: An Introduction

purporting to act in the course of their employment, does anything that would constitute an offence punishable on indictment had it been done in Scotland, that person is guilty of that crime as if it had been committed in Scotland. By subsection (3), persons within subsections (1) and (2) can be prosecuted in Scotland. By subsection (4), a person who has in their possession in Scotland property which they have stolen in another part of the UK or who in Scotland receives property stolen in another part of the UK may be dealt with, indicted, tried and punished as if they had stolen the property in Scotland. By section 55 of the 2009 Act, if a UK national or a UK resident commits an offence listed in the 2009 Act, then that person can be dealt with in Scotland for committing the Scottish offence. In the case of a UK resident (but not that of a UK national), it is also a condition that the conduct is criminal in the jurisdiction where it takes place.

Jurisdiction over particular crimes The other factor to be considered in relation to jurisdiction is the nature of the crime alleged. This is referred to, technically, as jurisdiction ratione materiae. Some crimes are reserved to courts at particular levels. The High Court of Justiciary Section 3(2) of the 1995 Act gives us our starting point. It provides that ‘any crime or offence which is triable on indictment may be tried by the High Court sitting at any place in Scotland’. All crimes may be tried on indictment except those for which legislation prescribes prosecution under summary procedure only. The 1995 Act section 292 contains detailed rules for determining when an offence is triable only summarily but in practice such restriction to summary prosecution is usually by implication, where the legislation only provides for a penalty on summary conviction. For such cases, with one exception, the High Court cannot exercise jurisdiction. The exception occurs where a summary offence is, in terms of the 1995 Act section 292(6), prosecuted on the same indictment as an offence which can be dealt with under solemn procedure. Sheriff court The jurisdiction of the sheriff court is more restricted than that of the High Court. The 1995 Act section 3(6) sets out the offences with which the sheriff may deal under solemn procedure:

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Jurisdiction 19

‘Subject to any express exclusion contained in any enactment, it shall be lawful to indict in the sheriff court all crimes except murder, treason, rape (whether at common law or under section 1(1) of the Sexual Offences (Scotland) Act 2009 (asp 9)), rape of a young child (under section 18 of that Act) and breach of duty by magistrates.’

The effect of this is to restrict to the High Court prosecution of the particular crimes mentioned; but all other indictable offences committed within Scotland may be indicted in the sheriff court. In relation to summary prosecutions, the 1995 Act section 4(4) gives the sheriff concurrent jurisdiction with all other courts of summary jurisdiction (that is, the JP court) and, accordingly, any matter that can competently be prosecuted on summary complaint can be so prosecuted in the sheriff court. JP court The JP court may, in terms of the 1995 Act section 6(2), be constituted by a summary sheriff (who is legally qualified) or by one or more justices (who need not be so qualified but occasionally are). The 1995 Act section 7(3) provides that the JP court has jurisdiction to try any offence which is triable summarily except insofar as any enactment provides otherwise. Section 7(8) precludes it from dealing with: • • • • • • •

murder; culpable homicide; robbery; rape; wilful fire-raising (or an attempt thereat); theft by housebreaking or housebreaking with intent to steal; offences of dishonesty where the value exceeds level 4 on the standard scale provided for by the 1995 Act section 225 (£2,500 at the time of writing); • assault: causing the fracture of a limb; with intent to ravish; to the danger of life; by stabbing. • uttering forgeries or offences under the Acts relating to coinage. The JP court is, however, specifically empowered (by the 1995 Act section 7(4)) to deal with theft, reset, fraud and embezzlement, provided the amount concerned does not exceed level 4 on the standard scale.

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20 Criminal Evidence and Procedure: An Introduction

Chapter overview • The jurisdiction of the Scottish courts is based primarily on territory; but for certain specific offences it may be based on nationality or residence. • The High Court has jurisdiction in respect of crimes committed anywhere in Scotland. • Sheriff courts and JP courts are organised into six sheriffdoms, which are subdivided into sheriff court districts. • Crimes committed in a sheriffdom may be prosecuted in any sheriff court district in that sheriffdom but are usually prosecuted in the district in which they are alleged to have occurred. • Where parts of a crime take place in two or more jurisdictions, there is jurisdiction wherever the totality of events play a material part in the operation and fulfilment of the criminal scheme. • Crimes committed in multiple sheriff court districts can be prosecuted in any of those districts. • The High Court has jurisdiction over all indictable crimes. • The sheriff court has jurisdiction over all indictable crimes except murder, treason, rape and breach of duty by magistrates; and over all crimes prosecuted under summary procedure. • The JP court has jurisdiction over all crimes prosecuted under summary procedure except those specified in section 7(8) of the Criminal Procedure (Scotland) Act 1995.

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Chapter three

The Prosecution of Crime

The Scottish criminal justice system is an adversarial one, with the initiative being taken by the prosecution. Very considerable reliance is placed on the integrity and judgement of the public prosecutor, especially in the early stages of a prosecution. We must, therefore, understand the prosecution system if we are to understand the criminal justice system as a whole. Virtually all prosecutions in Scotland are public prosecutions at the instance of either the Lord Advocate or the procurator fiscal. Cases under solemn procedure are prosecuted in the name of the Lord Advocate and those under summary procedure in the name of the procurator fiscal. By the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) section 133(5), all summary prosecutions are to be brought at the instance of the procurator fiscal unless statute expressly provides to the contrary.1 Although it is possible for an individual who claims to have suffered a personal wrong to apply to the court for authority to institute a prosecution, this procedure (known as a Bill for Criminal Letters) is invoked rarely and hardly ever succeeds. In Stewart v Payne2 the High Court stressed the exceptional nature of the procedure and said that it was difficult to think of circumstances in which it would be allowed unless the Lord Advocate had acted oppressively or capriciously. Accordingly, the proportion of Scottish criminal cases that do not involve either the procurator fiscal or the Lord Advocate as prosecutor is so small that, in an introductory text such as this, they can safely be ignored.

The Lord Advocate The principal prosecutor in Scotland is the Lord Advocate. The Lord Advocate and the Solicitor General for Scotland are members of the 1

For an example, see s. 43(2) of the Education (Scotland) Act 1980, which provides for the institution of proceedings by a person authorised on behalf of the education authority. 2 2017 SCCR 56.

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22 Criminal Evidence and Procedure: An Introduction

Scottish Government3 and the Scottish Parliament does not have the legislative competence to remove the Lord Advocate from his or her position as head of the system of criminal prosecution.4 The Lord Advocate is required to take any decision in that capacity independently of any other person.5 All indictments run in the name of the Lord Advocate whether they are tried in the High Court of Justiciary or the sheriff court. The only exception to this arises, in terms of section 287(2) of the 1995 Act, when the Lord Advocate’s office is vacant. During such a vacancy, indictments are in the name of the Solicitor General.

Advocate deputes The Lord Advocate and Solicitor General are assisted in prosecution matters by the advocate deputes, who prosecute cases in the High Court and give instructions, on behalf of the Lord Advocate, to procurators fiscal in connection with criminal cases. Advocate deputes are either members of the Faculty of Advocates or solicitor advocates with a High Court right of audience and they are drawn from both private practice and the Crown Office and Procurator Fiscal Service. The Lord Advocate, Solicitor General and advocate deputes are known collectively as ‘Crown Counsel’.

Procurators fiscal Brief history and functions The procurator fiscal is a civil servant qualified as a solicitor, solicitor advocate or advocate and employed within the Scottish Administration. He or she is an independent public prosecutor, who receives and considers reports of crimes and offences from the police and other agencies and decides whether or not to take criminal proceedings in the public interest. He or she investigates the more serious cases and prosecutes all cases in court except the High Court. The existence of the office of procurator fiscal is recorded from 1584 but it certainly existed even before that. Originally, the sheriff combined both investigative and judicial functions, much like a continental examining magistrate. The procurator fiscal was originally an agent (procurator) employed by the sheriff to collect fines 3

Scotland Act 1998 s. 44(1)(c). Scotland Act 1998 s. 29(2)(e). 5 Scotland Act 1998 s. 48(5). 4

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The Prosecution of Crime 23

and pay them into the sheriff’s treasury (the ‘fisc’). However, the sheriff’s investigative functions were gradually delegated to the procurator fiscal and their status as public prosecutor in the sheriff court was recognised by the Criminal Procedure (Scotland) Act 1700. The appointment of procurators fiscal was vested in the Lord Advocate by the Sheriff Courts and Legal Officers (Scotland) Act 1927. Relationship with police and other investigators The chief constable, and hence the police as a whole, must, by statute, obey the instructions they receive from the prosecutor in relation to the investigation of crime and cannot at their own hand commence a prosecution. Section 17(3) of the Police and Fire Reform (Scotland) Act 2012 provides that the chief constable must, when directing constables in the carrying out of their functions, comply with any lawful instruction given by the appropriate prosecutor or the Lord Advocate (and also the Lord Justice-General or the relevant sheriff principal, though neither of them has any function in relation to the investigation and prosecution of crime). In similar vein, the 1995 Act section 12 provides that the Lord Advocate may, from time to time, issue instructions to the chief constable with regard to the reporting, for consideration of prosecution, of offences alleged to have been committed. It is rare for these statutory provisions to be invoked explicitly but their existence underlies the whole relationship between Scottish prosecutors and the police. The responsibility of the police as to reporting to the procurator fiscal was considered in Smith v HM Advocate,6 a murder by stabbing in which the police omitted to tell the procurator fiscal that they had found at the locus not only the murder weapon but also a second knife. They reasoned that the second knife was irrelevant, as indeed it probably was. On appeal Lord Justice-Clerk Thomson had this to say about the duties of the police: ‘it is their duty to put before the Procurator Fiscal everything which may be relevant and material to the issue of whether the suspected party is innocent or guilty . . . a cautious officer will remember that he is not the judge of what is relevant and material and will tend to err on the safe side’.

In addition to this, Part 6 of the Criminal Justice and Licensing (Scotland) Act 2010, which deals with disclosure of information in criminal cases, imposes duties on all investigating agencies to provide the prosecutor with

6

1952 JC 66.

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24 Criminal Evidence and Procedure: An Introduction

details of all the information that might be relevant to the case for or against the accused. This is explained in Chapter Seven, below. When anyone aged sixteen or over is charged by the police, whenever the police have evidence which they think justifies charging a person they cannot find or whenever another investigating agency considers it appropriate to commence a prosecution, a report is submitted to the procurator fiscal. So far as the police are concerned, this follows from section 20(1)(d) of the Police and Fire Reform (Scotland) Act 2012, which provides that it is the duty of a constable ‘to take such lawful measures, and make such reports to the appropriate prosecutor, as may be needed to bring offenders with all due speed to justice’. So far as other investigating agencies are concerned, the need to report to the procurator fiscal arises from the fact that there is no other way to commence criminal proceedings.

The decision to prosecute When the procurator fiscal receives a report of a crime it is his or her duty to consider it and decide whether or not to prosecute. This decision is taken under reference to such guidance and instructions as the Lord Advocate may have given either in general or, though Crown Counsel, in relation to the particular case. Some of the Lord Advocate’s general guidance to procurators fiscal is published on the Crown Office and Procurator Fiscal Service website.7 The most fundamental assessment which the procurator fiscal will make as part of the decision-making process is whether or not there is sufficient evidence to prove a crime. This need not be the same crime with which the accused has been charged by the police. The procurator fiscal is in no sense bound by the assessment made of the case by the reporting agency. If the procurator fiscal is not satisfied, even after calling for such further information as may be helpful, that there is sufficient evidence to prove a crime, it is improper to commence proceedings or take any other steps. The only option is to mark the report ‘no proceedings’. Once satisfied that there is sufficient evidence to proceed, the procurator fiscal’s discretion comes into play. That discretion is considerable. By contrast with certain continental European jurisdictions, the procurator fiscal is under no obligation to prosecute in every case in which a crime can be proved. There are alternatives to prosecution.

7

Crown Office and Procurator Fiscal Service, http://www.copfs.gov.uk (last accessed 4 June 2021).

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The Prosecution of Crime 25

Alternatives to prosecution No proceedings, warning letters and diversion In some cases, the procurator fiscal will decide that although there is sufficient evidence to proceed, the public interest does not require a prosecution. Such cases are simply marked ‘no proceedings’. In other cases, a warning letter may be sent. Such a letter does not say that the procurator fiscal has decided that the person is guilty. What it does say is that the person has been reported to the procurator fiscal and that there is enough evidence to proceed, but that the procurator fiscal has decided that court action is not necessary, though if the person is reported again for a similar offence there might well be a prosecution. In other cases, diversion to the social work department or another similar agency might be a constructive way forward. The details of such schemes vary from place to place and from time to time. These are all informal options. Fixed penalties, compensation offers and work orders Sections 302–303 ZB of the 1995 Act make provision for three formal options short of prosecution. Fixed penalties (or ‘conditional offers’) are dealt with by section 302, which empowers a procurator fiscal who receives a report that a ‘relevant offence’ (essentially, one that can be tried summarily) has been committed to send the alleged offender a notice giving particulars of the alleged offence and stating the amount of the appropriate fixed penalty for that offence and the arrangements for payment by instalments. The appropriate fixed penalty is selected by the procurator fiscal from a sliding scale laid down in the Criminal Procedure (Scotland) Act 1995 Fixed Penalty Order 2008,8 and ranging from £50 to £300 (though in the exercise of powers under the Coronavirus (Scotland) Act 2020, the upper limit is extended, at least temporarily, to £500: the Schedule to the Order should be checked). It is up to the alleged offender whether to elect to pay the penalty or not. If he or she accepts the conditional offer, either by paying the first instalment of the fixed penalty or simply by failing to refuse the offer, they cannot then be prosecuted for the offence but will be liable to pay the full penalty. If the conditional offer is not accepted, the procurator fiscal can (and probably will) commence a prosecution. Acceptance of the offer of a fixed penalty does not constitute a conviction but can be disclosed to the court in any proceedings for an offence committed within the next two years.

8

SSI 2008 No. 108.

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26 Criminal Evidence and Procedure: An Introduction

Section 302A of the 1995 Act provides for ‘compensation offers’. The arrangements parallel the fixed penalty arrangements rather closely except that the payments made are transmitted to the complainer. The maximum amount for a compensation offer is £5,000.9 By section 302B the procurator fiscal may send to an alleged offender a combined offer of an opportunity to pay a fixed penalty and compensation. Section 303ZA provides for the procurator fiscal to send the alleged offender the offer of an opportunity to perform between 10 and 50 hours unpaid work under the supervision of the local authority. The arrangements are, again, modelled on those for fixed penalties.

Choice of procedure Once the decision is made that the case should be prosecuted, the procurator fiscal must decide whether the case requires solemn procedure or summary and, if summary, whether the sheriff court or the JP court. That decision taken, proceedings will be commenced.

The prosecutor as ‘master of the instance’ Throughout the proceedings, until the accused is convicted (or acquitted) the prosecutor is in charge of their own case and not subject to the directions of the court in its handling. So, in Howdle v Beattie10 where a sheriff refused to allow a case to be called in Dumfries Sheriff Court because he thought that it would have been administratively preferable for it to be prosecuted in Kirkcudbright Sheriff Court, it was held that a prosecutor has the right to decide whether a case will call in court on a given day and the sheriff cannot stop the prosecutor from calling the case. Moreover it was decided in Strathearn v Sloan11 that the prosecutor is not bound to accept a plea of guilty even to the whole indictment or complaint but may insist on proceeding to trial (as might happen if a fundamental disagreement on the circumstances of the offence was anticipated). In Kirkwood v Coalburn District Co-operative Society12 it was held that a prosecutor is not bound to accept a plea to the minor of two alternative charges but is entitled to insist on leading evidence with a view to obtaining a conviction on the 9

Criminal Procedure (Scotland) Act 1995 Compensation Offer (Maximum Amount) Order 2008 (SSI 2008 No. 7). 10 1995 SCCR 349. 11 1937 JC 76. 12 1930 JC 38.

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The Prosecution of Crime 27

major alternative. And, according to Clark v Donald13 the prosecutor is even entitled to substitute a new complaint for one that was still current. In that event, the prosecutor will move for the existing complaint or indictment to be ‘deserted pro loco et tempore’. That is a useful step, which can be used in a variety of situations. It means that the existing proceedings are abandoned but it allows the prosecutor to start again. Desertion pro loco et tempore does not always happen at the behest of the prosecution. So, for example, if a problem has arisen with a particular jury but the accused could get a fair trial before a new jury, the court will, on its own initiative, desert the indictment pro loco et tempore to allow that to happen. The prosecutor is always entitled to accept a plea of not guilty, to withdraw a charge or the whole prosecution (the expression used is to ‘withdraw the libel’), to state that the prosecution does not seek a conviction or to move to desert simpliciter (which is a final step and does not permit the prosecutor to start again). Any of these steps amounts to the acquittal of the accused. The prosecutor is not expected to explain why such a step has been taken and usually does not do so – though the reason in any particular case is usually obvious. It is open to the court to desert a charge or an indictment or complaint simpliciter on the motion of the defence or even on its own initiative but this is a rare step, taken only where the accused cannot get a fair trial under any circumstances or, in summary procedure, where a prosecution motion to adjourn a trial or desert it pro loco et tempore has been refused and the prosecutor is unwilling or unable to proceed with the trial.14 The limits on the prosecutor’s rights as master of the instance were set out in HM Advocate v O’Neill,15 in which it was alleged to be oppressive for the Crown to proceed to trial against two accused and then indict the third separately. Lord Justice-General Hope said, in deciding the case: ‘there is no doubt that in the ordinary case the Court will only with the greatest reluctance interfere with the discretion of the Crown. But its power to do so is beyond question, and in all these cases where oppression is alleged, or where it is suggested that there is a material risk of grave prejudice to the accused, the ultimate decision must rest with the Court’.

In the O’Neill case the court decided that there was no oppression, by contrast with Normand v McQuillan16 in which a sheriff held that where the accused 13

1962 JC 1. 1995 Act s. 152(2). 15 1992 SCCR 130. 16 1987 SCCR 440 (Sh Ct). 14

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28 Criminal Evidence and Procedure: An Introduction

pled not guilty to a summary complaint and was remanded in custody it was oppressive to substitute a petition two weeks later containing no new charges. The petition is the document that commences a prosecution under solemn procedure under which, as we shall see, the period during which the accused can be kept in custody before trial is longer than that under summary procedure. On the other hand, in HM Advocate v Griffiths,17 Temporary Judge CJ Macaulay QC held that there was no bar to the Crown substituting an indictment for causing death by dangerous driving for a summary complaint charging careless driving where the initial decision had been reconsidered in the light of CCTV footage of the accident which became available. By contrast with Normand v McQuillan (which was not cited or discussed in Griffiths), the summary complaint was withdrawn before it was called in court and the accused had not spent time remanded in custody.

Chapter overview • Virtually all prosecutions are public prosecutions at the instance of either the Lord Advocate (solemn procedure) or the procurator fiscal (summary procedure). • The police must obey the instructions of the prosecutor in relation to the investigation of crime. • It is the duty of the police to report to the procurator fiscal everything that might be relevant to the issue of whether or not the suspected party is innocent or guilty. • Before prosecuting, the procurator fiscal has to be satisfied that there is sufficient evidence to prove a crime. • If there is sufficient evidence, the prosecutor can choose to proceed by an alternative to prosecution. • If the prosecutor chooses to prosecute, a decision is taken about whether to do so under solemn procedure or under summary procedure. • The prosecutor is master of the instance and the court cannot interfere with the prosecutor’s handling of the case unless it is oppressive or gravely prejudicial.

17

2009 SLT 1054

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Chapter four

Investigation of Crime

Introduction The first contact that a complainer or alleged offender will have with the criminal justice system will almost certainly be with the police or another investigating agency. In most cases, someone phones the police about a crime, the police attend and the alleged offender is arrested quite quickly. The investigation in those circumstances is concerned primarily with taking statements and questioning the suspect. Sometimes, it becomes necessary to search either the person of the suspect or premises. In other cases, an investigating agency comes to suspect that a crime is being committed and conducts a proactive investigation. That might involve surveillance or even more covert techniques. The law regulates all aspects of investigations. A departure from the relevant legal rules is an irregularity and imperils the admissibility of any evidence recovered. (Sometimes, it might also give rise to civil liability in damages but that is outside the scope of this book.) It would, however, be a mistake to assume that the fact that an investigator has exceeded his or her powers will automatically mean that the evidence which he or she has obtained thereby will be inadmissible. The courts are prepared, in deciding questions relating to admissibility of evidence, to excuse some irregularities, especially in circumstances of urgency or where the investigator has acted in good faith but made an honest mistake. This can be illustrated by contrasting two cases. The first is Lawrie v Muir1 in which a Milk Marketing Board inspector obtained entry to premises by a misrepresentation and the subsequent conviction, based on evidence about what he found, was quashed. The court pointed out that an irregularity in the method by which evidence has been obtained does not necessarily make that evidence inadmissible and that whether a given irregularity should be excused depends on its nature and the circumstances, an important consideration being fairness to the accused. They declined to make any distinction in this between statute and common law offences. On the facts of Lawrie v Muir, however, the 1

1950 JC 19.

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30 Criminal Evidence and Procedure: An Introduction

Appeal Court took the view that the use of a positive misrepresentation was not an irregularity which should be excused. The other case is Fairley v Fishmongers of London2 in which the appellant had been charged with possession of salmon contrary to a particular regulation. Evidence of the result of a search was essential to the prosecution case. The search was carried out by an inspector charged with the enforcement of the regulation, accompanied by an officer charged with the enforcement of other regulations. The inspector had not obtained a warrant (though he could have done). The officer had obtained a warrant, but not under the regulations relating to salmon. It was held, applying Lawrie v Muir, that the evidence, although obtained irregularly was admissible. Lord JusticeGeneral Cooper said, in the course of his judgment: ‘I can find nothing to suggest that any departure from the strict procedure was deliberately adopted with a view to securing the admission of evidence obtained by an unfair trick, and in the circumstances of this case the appellant’s assumption of the guise of a champion of the liberties of the subject failed to elicit my sympathies.’

The correct approach, therefore, is to consider first, whether what has been done has been done in accordance with the law or irregularly and, second, if there has been irregularity, whether that irregularity is one which may be excused or is fatal to the admissibility of the evidence. In order to determine whether what has been done has been done in accordance with the law, it is necessary to understand what powers the law grants to investigators, especially to police officers. The powers which police officers can exercise vary with the nature and stage of the investigation but the most significant event is the arrest of the suspect. That is followed closely, in significance, by whether or not the person has been officially charged. For that reason, although it often happens that police officers question or search a suspect before arrest, it seems sensible to deal first with the law on arrest and on official charging and then move on to consider questioning, search and the regulation of more covert forms of investigation, in that order.

Arrest When can the police make an arrest? Broadly speaking, there are three circumstances in which a person may be arrested. The first is arrest under the authority of a warrant granted by a 2

1951 JC 14.

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Investigation of Crime 31

court. When the procurator fiscal receives a report of an alleged offence and decides to commence proceedings, one option is to present an application to the court for a warrant of apprehension. A warrant has been defined as ‘an order by a judge . . . that an individual . . . authorised by law to execute a deliverance of the court shall put it into effect’.3 The Criminal Procedure (Scotland) Act 1995 (the 1995 Act) makes some provision about the form which the warrant should take and the powers implicit in such a warrant. Under solemn procedure, section 34 of the 1995 Act provides for the form that should be used. Under summary procedure, section 135 of the 1995 Act provides that a warrant of apprehension of an accused implies power to officers of law to search for and apprehend the accused and to bring them before the court. (The person must be brought before the court, if practicable, before the end of the first day on which the court is sitting following the arrest or as soon as practicable after that.4) The second is under one of the provisions which authorises arrest in particular circumstances (for example, section 28(1) of the 1995 Act where there are reasonable grounds for suspecting that the accused has broken or is likely to break a condition imposed on bail). The third, with which we are chiefly concerned, is arrest by the police in the exercise of their statutory power under section 1 of the Criminal Justice (Scotland) Act 2016 (the 2016 Act) in the course of investigating crime. The arrest provisions of the 2016 Act were based closely on the Carloway Review of criminal law and practice.5 The 2016 Act abolished existing powers of arrest6 and detention (which was a stage short of arrest) and replaced them with an entirely new framework. There is, at the time of writing, almost no case law about the interpretation of the provisions of the 2016 Act. Criminal Justice (Scotland) Act 2016 The power of arrest Section 1(1) of the 2016 Act confers a power of arrest on police officers, though not where the person has been ‘officially accused’7 of committing the offence or an offence arising from the same circumstances as the original offence.8 Section 1(1) provides that a constable may arrest a person 3

CN Stoddart, Criminal Warrants, 2nd edn (Edinburgh: Butterworths, 1999), p. 1. Criminal Justice (Scotland) Act 2016 s. 21. 5 Lord Carloway’s Report on Criminal Law and Practice, 17 November 2011. 6 2016 Act s. 54, except for arrest under s. 41(1) of the Terrorism Act 2000, not discussed in this book. 7 See p. 35 for an explanation of “officially accused”. 8 2016 Act s. 2(2). 4

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32 Criminal Evidence and Procedure: An Introduction

without warrant ‘if the constable has reasonable grounds for suspecting that the person has committed or is committing an offence’. In Houston v Carnegie,9 which was a case about the use of the same formula under the former law, it was held that the constable must have those grounds himself. In that case, a constable was held to have acted unlawfully when he detained the suspect simply because a senior officer told him to do so. But the same case also establishes that what matters is whether the officer had grounds for suspicion. He does not require to actually be suspicious. The enquiry is into the constable’s state of knowledge, not his state of mind. It remains to be seen whether that reasoning will be applied to section 1 of the 2016 Act by the appellate courts but, in the meantime, it is suggested that Houston v Carnegie is helpful. What will amount to reasonable grounds will depend on the particular circumstances of the case. Again, some help may be found in cases about the former law, though at the time of writing it still remains to be seen whether the appeal courts will adopt that body of case law. In Wilson v Robertson10 it was argued that in the particular circumstances the constables concerned could not have had such grounds. The facts were that police officers saw that the fire door of a club had been interfered with by someone from the inside at some time before a theft in the club. The accused had been the only strangers in the club at the relevant time and had been the last to leave. Moreover, they were in the vicinity of the club car park when the club was locked for the night. The sheriff considered that these facts provided reasonable grounds for the relevant suspicion and the Appeal Court agreed. Lord Justice-General Emslie said: ‘We are concerned here not with evidence as to guilt. We are concerned here simply to know whether there were reasonable grounds on which a police officer might entertain a suspicion that the appellants had committed the offence . . . ’

The standard required seems, therefore, to be quite low and that receives some confirmation from cases like Dryburgh v Galt11 in which an anonymous telephone call was held to be a sufficiently reasonable ground for police officers to suspect that a man had been drinking and driving and to operating the power under the Road Traffic Acts to require the provision of a specimen of breath for a breath test. In that case, the court followed

9

1999 SCCR 605. 1986 SCCR 700. 11 1981 SCCR 26. 10

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McNicol v Peters,12 Copeland v McPherson13 and Allan v Douglas14 and Lord Justice-Clerk Wheatley summarised the effect of these cases thus: ‘the fact that the information on which the police officer formed his suspicion turns out to be ill founded does not in itself necessarily establish that the police officer’s suspicion was unfounded. The circumstances known to the police officer at the time he formed his suspicion constitute the criterion, not the facts as subsequently ascertained. The circumstances may be either what the police officer has himself observed or the information which he has received’.

There is an important limitation set out in section 1(2) and (3), which applies to offences that do not carry a possible prison sentence. A person cannot be arrested for such an offence unless the constable is satisfied that it would not be in the interests of justice to delay an arrest in order to seek a warrant, for example because the constable reasonably believes that the person will continue to commit the offence or obstruct the course of justice. Action immediately following arrest When a person is arrested, the constable who arrests them must tell them that they are under arrest, the general nature of the offence in respect of which they have been arrested and the reason for the arrest. The constable must inform the person that they are under no obligation to say anything other than give the information specified in section 34(4) of the 2016 Act (name, address, date of birth, place of birth and nationality). And the constable must inform the person of their right, under section 43, to have information sent to a solicitor that they are in custody, the place where they are in custody and that the solicitor’s professional assistance is required. (Where the arrested person is under the age of 18, they must be permitted access to their parent.15) Finally, the constable must inform the arrested person that, under section 44, they have the right to a private consultation with a solicitor at any time (though, in exceptional circumstances, the exercise of that right may be delayed so far as necessary in the interests of the investigation or prevention of crime, or the apprehension of offenders). By section 4, a person who has been arrested must be taken as quickly as is reasonably practicable to a police station and the constable may use 12

1969 SLT 261. 1970 SLT 87. 14 1978 JC 7. 15 2016 Act s. 40. 13

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34 Criminal Evidence and Procedure: An Introduction

reasonable force when doing so.16 The meaning of the phrase ‘as quickly as is reasonably practicable’, as used in the former law, was considered in Menzies v HM Advocate.17 In that case the appellant had been detained outside Airdrie Police Station by police officers from Dunfermline. They did not take him into Airdrie Police Station but took him instead to Dunfermline Police Station, where he made an incriminating statement. It was objected that the statement should not have been admitted and argued that the requirement to take the suspect to a police station as quickly as is reasonably practicable meant that the police had to take him to the nearest police station. On appeal, the court did not agree. They considered that the phrase ‘as quickly as is reasonably practicable’ is conditioned by what is reasonably practicable according to the circumstances as they present themselves at the time to the constable by whom the person is detained. In Menzies there was evidence that there was substantial documentation relevant to the case at Dunfermline and also that the interviewing facilities in Airdrie Police Station were under considerable pressure at the relevant time. The Appeal Court characterised these as ‘understandable operational reasons’ and held that there was no breach of the requirements of the legislation. At the police station, the arrested person must be given the information specified in section 5. It overlaps substantially with that required by section 3 when a person is arrested. They must be told that they are under no obligation to say anything, other than to give their name, address, date and place of birth and nationality.18 They must also be told of their right to have intimation sent to specified persons, including a solicitor. And they must be given the information required by the Directive on the right to information in criminal proceedings19 (including a letter of rights on arrest). Section 6 requires the police to make a record of various steps taken in relation to an arrested person. The detail of that need not be considered here but it is worth noting that although there are electronic forms available to the police for making that record, it was held in Cummings v HM Advocate,20 in relation to the former law, that it is enough if records of this sort are made in the officer’s notebook. In that case, the Appeal Court was disparaging

16

2016 Act s. 45. 1995 SCCR 550. 18 2016 Act s. 34(4). 19 Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings. 20 1982 SCCR 108. 17

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about the proposition that failure to make the record renders inadmissible any evidence obtained while the person is held by the police but did not require to decide the point. Of course, where a police officer has chosen not to use a system that has been put in place to satisfy a statutory requirement, they might find that the credibility of the evidence which they give on the point is brought into question. And the introduction of electronic ‘notebooks’, which is taking place at the time of writing, might soon make it unlikely that the facts of Cummings will recur. Procedure after arrest What happens thereafter depends on whether or not the arrested person has been officially accused. That expression is explained in section 63 of the 2016 Act as meaning either that a constable charges the person with the offence or that the prosecutor initiates proceedings against the person in respect of the offence. Chapter 2 of the 2016 Act (sections 7–19) deals with the situation in which a person has not been officially accused. Chapter 3 (sections 20–30) deals with the situation in which they have. A person arrested on a warrant issued by the court will always fall into the category of those who have been officially accused. Person who has not been officially accused A person who is in custody has the right to have intimation of that fact sent to another person.21 If the arrested person is under eighteen, the person to whom intimation is sent must be asked to attend.22 A person who has been arrested under section 1 and who has not been charged can only be kept in custody for up to twelve hours and then only if that is authorised under section 7 by a constable who is of the rank of sergeant or above and who has not been involved in the investigation. By section 14, the officer considering authorisation can only grant it if there are reasonable grounds for suspecting that the person has committed an offence and that keeping the person in custody is necessary and proportionate for bringing the person before a court or otherwise dealing with the offence. In considering that, regard ‘may be had’ to whether the person’s presence is reasonably required to enable the offence to be investigated fully, the risk of interference with witnesses or obstruction of the course of justice and the nature and seriousness of the alleged offence. The position must be reviewed after six hours, in terms of section 13. The review must be made by a constable of the rank of inspector or above, 21

2016 Act s. 38(1). 2016 s. 39.

22

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36 Criminal Evidence and Procedure: An Introduction

who has not been involved in the investigation in connection with which the person is in custody and he or she must apply the section 14 criteria again. If they are not met, the arrested person can only continue to be held in custody if they are charged.23 At the end of the twelve-hour period the arrested person must ordinarily be charged or released. However, section 11(1) contains provisions to allow for an extension of the time in which a person may be kept in police custody for a further twelve hours after the initial twelve hours ends but only in relation to indictable offences. Section 11(2) provides that the authorisation to extend that custody can only be given by a constable of the rank of inspector or above who has not been involved in the investigation in connection with which the person is in custody. Authorisation to extend custody may only be given if the tests set out in section 11(3)(a) and (b) are met – that is, that the person has not previously been held in custody by virtue of an authorisation under section 11 for the same offence, that the section 14 criteria are met and that the investigation is being conducted diligently and expeditiously. Section 11(4) places a duty on the authorising constable to, where practicable, allow the person or their solicitor to make representations either orally or in writing, and to have regard to any such representations. There must be a further section 13 custody review after six hours. Section 11(6) and (7) provide that after the expiry of the further twelve hours the person can only continue to be held in police custody if charged or held for a bail review under section 28(1A) of the 1995 Act. Bringing the arrested person before the court A person who is in custody and has been charged must be brought before the court, if practicable, before the end of the first day on which the court is sitting after being charged or as soon as practicable after that.24 Brogan v United Kingdom25 indicates that a delay of more than four days is likely to breach article 5.3 ECHR and, for that reason, when a combination of public holidays and weekends would mean that that time is exceeded, a custody court is held in the middle of the period. Alternatively, in terms of section 26 of the 2016 Act, the police may choose to release the person from custody if they sign an undertaking to appear at court at a particular time and they may impose conditions. The first three of those conditions are that the person does not commit an offence, does not interfere with witnesses or evidence or otherwise obstruct 23

2016 Act s. 13(4). 2016 Act s. 21(2). 25 (1989) 11 EHRR 117. 24

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the course of justice and does not behave in a manner which causes or is likely to cause alarm or distress to witnesses. It is also open to the police (with the authority of a sergeant or above) to impose ‘any further condition that a constable considers necessary and proportionate’ for the purpose of ensuring that the other conditions are observed. It is very common for additional conditions to be imposed under that head. It is less common for any rational basis for the additional conditions to be advanced if the matter comes to be considered by a sheriff on an application under section 30 to have the condition reviewed. Investigative liberation The Carloway Review noted that it might not be practicable to complete some steps in a police investigation within the twelve-hour maximum period which the Review recommended (and which became law). For example, it might take some time to investigate mobile telephone records or to carry out DNA comparisons; or a suspect might provide an explanation that merits further enquiry. Lord Carloway also noted that it might not be necessary or proportionate for a suspect to be detained whilst these steps are being undertaken. He recommended a system of investigative liberation under which the police can release an arrested suspect, who has not been charged but is still under investigation, on conditions and with the possibility of further questioning on return to police custody (following rearrest). This is part of what is contemplated by section 2(1) of the 2016 Act, which provides that a person may be arrested more than once in respect of the same offence. There is, of course, no reason in principle why the police should not release a person part-way through their investigation and then re-arrest them later in reliance on section 2(1) of the 2016 Act. What distinguishes the investigative liberation regime is that the police are empowered to impose conditions on the suspect. Sections 16–19 of the 2016 Act provide for the system of investigative liberation and Schedule 1 para. 1(1)(a) makes it an offence to fail to comply with an investigative liberation condition. The provisions about conditions are not the same as those relating to conditions imposed on undertakings to appear. Under the investigative liberation provisions, by section 16(2) a constable releasing someone from custody may impose any condition that ‘an appropriate constable’ (that is, a constable of the rank of sergeant or above) considers necessary and proportionate for the purpose of ensuring the proper conduct of the investigation into a relevant offence. The subsection gives as an example a condition aimed at securing that the person does not interfere with witnesses or evidence. Subsection (3) provides that a condition may

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require the person not to be in a specified place or category of place at a specified time and to remain outwith that place or category for a specified period. However, the subsection also provides that a condition may not require the person to be in a specified place or category of place at a specified time (this precludes a ‘curfew’ condition, confining the person to their home). By section 17, the conditions cease to apply after twenty-eight days. In the meantime, they may be modified or removed by a constable in terms of section 18. That section requires that a constable of at least the rank of inspector must keep under review whether there are reasonable grounds for suspecting that a person subject to a condition has committed a relevant offence and whether the condition remains necessary and proportionate for the proper conduct of the investigation. By section 19, a person who is subject to a condition may apply to the sheriff to have the condition reviewed. The sheriff is empowered to remove the condition or to impose an alternative condition. The emphasis in this is on conditions which are necessary and proportionate for ensuring the proper conduct of the investigation. Although, at the time of writing, there have been no reported decisions about these provisions, it seems possible to identify three issues of importance. The first is that the condition must have some connection with the proper conduct of the investigation. It ought to be possible for the procurator fiscal, addressing a sheriff under section 19(2) about an application to have the condition reviewed, to explain what connection there is between the condition and the proper conduct of the investigation. Secondly, the condition must be necessary for the conduct of the investigation. It might be argued that ‘necessary’ is a higher threshold than, say, ‘useful’ or ‘helpful’. For example, in a situation in which the concern is about interference with the investigation, questions might arise about whether the existence of the crimes of interfering with the course of justice and subornation of perjury provide sufficient protection. And the condition must be proportionate. In the background of all of this is the individual’s right to respect for their private and family life in terms of article 8 ECHR. A condition is very likely to constitute an interference with that right. The requirement for proportionality implies some reasonable relationship between the level of interference in the private life and the aim sought to be achieved.

Questioning suspects Initial enquiries When investigators begin their enquiries into a crime it may well be that all they know is that a crime has been committed. Their information might be

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sparse and, in particular, they might have no idea who committed the crime. Accordingly, Lord Justice-General Cooper said in Chalmers v HM Advocate,26 ‘at the stage of initial investigation the police may question anyone with a view to acquiring information which may lead to the detection of the criminal’. Inevitably, those whom the police question will sometimes include the person whom they come to suspect of being the perpetrator of the crime. Sometimes, indeed, it will be that person’s replies to their questions during initial investigation that focus their attention upon them or even bring the commission of the crime to their attention. In Wingate v McGlennon27 police officers saw the accused carrying a pickaxe handle. They asked him why, without cautioning him first, and he told them he had been assaulted and was looking for those responsible. He was arrested, charged, prosecuted and convicted of possession of an offensive weapon. It was held that the reply was admissible. Particular suspicion There comes a point at which the investigators begin to have suspicions about a particular person. This progression was recognised in Chalmers and, immediately after the passage quoted above the Lord Justice-General went on to say: ‘when the stage has been reached at which suspicion, or more than suspicion, has in their view centred upon some person as the likely perpetrator of the crime, further interrogation of that person becomes very dangerous and if carried too far, e.g. to the point of extracting a confession by what amounts to cross-examination, the evidence of that confession will almost certainly be excluded’.

Also in Chalmers, the Lord Justice-Clerk (Thomson) said: ‘There does come a time, however, when a police officer, carrying out his duty honestly and conscientiously, ought to be in a position to appreciate that the man whom he is in process of questioning is under serious consideration as the perpetrator of the crime. Once that stage of suspicion is reached, the suspect is in the position that thereafter the only evidence admissible against him is his own voluntary statement.’

These remarks provide a convenient basis for consideration of the essentials of the law. As Lord Cooper made clear, once suspicion has centred upon a person, investigators are more constrained. That does not mean, however, 26

1954 SLT 177. 1991 SCCR 133.

27

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that the answers to questions at that stage will inevitably be excluded. Such exclusion depends upon questioning being taken too far, such as into crossexamination. It was on this that Lord Avonside was commenting in Hartley v HM Advocate28 when he said: ‘Firstly, police officers may question a suspect so long as they do not stray into the field of interrogation. Secondly, and most importantly, cross-examination is just what it means. It consists in questioning an adverse witness in an effort to break down his evidence, to weaken or prejudice his evidence, or to elicit statements damaging to him and aiding the case of the cross examiner.’

In similar vein, in Jones v Milne29 Lord Justice-General Emslie said: ‘The mere fact that a suspected person is asked a question or questions by a police officer before or after being cautioned is not in itself unfairness and if answers are to be excluded they must be seen to have been extracted by unfair means which place cross examination, pressure and deceit in close company.’

One of the clearest expositions of the fairness test came in Brown v HM Advocate30 in which Lord Justice-General Clyde said: ‘It is not possible to lay down ab ante the precise circumstances in which answers given to the police prior to a charge being made are admissible in evidence at the ultimate trial or where they are inadmissible. This is so much a question of the particular circumstances of each case and those circumstances vary infinitely from one another. But the test in all of them is the simple and intelligible test which has worked well in practice-has what has taken place been fair or not? Just for this reason, because the circumstances in each case vary so much from one another, I do not consider that it is helpful to examine in detail the circumstances leading up to the confession in this case. A meticulous examination of these circumstances only leads in future cases to the creation of subtle distinctions between one decision and another on a matter where the true criterion is neither subtle nor complicated, but is the broad principle of fair play to the accused’ [emphasis added].

The courts also stress the issue of fairness to the public interest and we may recall Lord Wheatley’s remarks in Milne v Cullen31:

28

1979 SLT 26. 1975 SLT 2. 30 1966 SLT 105. 31 1967 JC 21. 29

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‘it is the function of the court to seek to provide a proper balance to secure that the rights of individuals are properly preserved, while not hamstringing the police in their investigation of crime with a series of academic vetoes which ignore the realities and practicalities of the situation and discount completely the public interest’.

This should not be pressed too far. In Thompson v Crowe,32 it was conceded by the Crown that, where the fairness of an interview is challenged, it is for the Crown to satisfy the judge, on the balance of probabilities, that the interview was fair. That approach was approved by the court and is the accepted one in practice. In B v HM Advocate33 the Appeal Court made it clear that if an interview is unfair that is an end of the matter. The public interest does not justify admitting its fruits. More recently, in Gilroy v HM Advocate34 the Lord Justice-Clerk (Carloway) reiterated that the overarching test is one of fairness and said that it is well recognised that this normally requires that a person in the category of ‘suspect’ must be cautioned before being questioned. The accepted terms of the caution are that the person need not say anything but that anything he or she does say will be noted and might be given in evidence. The question whether a person has reached the category of ‘suspect’ is thus of great importance in practice. Investigators are often unduly generous to themselves in making that assessment. Whether someone has become a suspect was regarded, in Milne v Cullen,35 as a subjective question that depends on the attitude of the police at the time, but in Logan v HM Advocate36 Lord Turnbull, giving the opinion of the court, pointed out that the police attitude might require to be justified by reference to the facts in their possession. Logan offers an up-to-date and succinct statement of the law with its application to particular facts. The police had received anonymous information that the appellant was storing a high value quantity of controlled drugs at her home in Bannockburn. They were concerned about the possibility that this was part of a criminal enterprise involving the trafficking of drugs from larger cities to more rural areas. Two police officers visited the appellant. They had no search warrant. They told her that they were there to check on her welfare. They asked if she was being coerced into storing drugs and she said ‘that’s not the case’. They said that they were not there to get her into trouble 32

1999 SCCR 1003. 1995 SLT 961. 34 2013 JC 163. 35 1967 JC 21. 36 2020 SCCR 203. 33

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and that they were there to help her. They said that they had the impression that she wanted to tell them something and asked again whether she was being coerced into storing drugs. At that point, she produced two bags containing white tablets. She was not cautioned at any stage up to that point. Notwithstanding what had been said, she was not offered any help but was, in due course, prosecuted on indictment for being concerned in the supplying of controlled drugs (it is well established that that offence can be committed by storing drugs37). The sheriff repelled an objection to the admissibility of what happened when she was visited by the police officers and she was convicted. The Appeal Court held that the sheriff had erred and the conviction was quashed. Lord Turnbull pointed out that having reason to believe that the appellant was storing drugs for someone cannot be distinguished from suspecting that she was doing so. Lord Turnbull went on to say38: ‘The overarching test of fairness referred to by the Lord Justice-Clerk in Gilroy does not of course require that a suspect must always be cautioned before any question can be put to him by the police. The question in each case is whether what was done was unfair to the accused . . . In applying that test in all the circumstances of a given case the question whether the appellant was or was not a suspected person will be one of the circumstances to take into account. Consideration will be given to matters such as whether the questioning which had been engaged in was designed to elicit admissions of guilt, whether any threats were made, any inducements were offered or whether undue pressure was put upon the individual . . . ’

Lord Turnbull went on to note that, in Logan: ‘The officers who attended did suspect that the appellant was storing drugs. That was why they were there . . . In questioning the appellant in the manner in which they did the officers declined to accept the appellant’s initial response. They persisted and sought to obtain an admission of involvement. They misled the appellant as to the consequences of answering their questions. They offered the inducement that they were not there to get her into trouble and that if she was honest with them they would be able to help her. No effort was made to justify or explain those comments.’

37

Kerr v HM Advocate 1986 JC 41. 2020 SCCR 203 para. 25, referring to Pennycuick v Lees 1992 SCCR 160; Tonge v HM Advocate 1982 SCCR 313; and Harley v HM Advocate 1995 SCCR 595.

38

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Questioning at a police station Chapter 4 of the 2016 Act regulates the interviewing of those who are in police custody and also those who have attended voluntarily at a police station for the purpose of being interviewed by a constable. The heart of these provisions is, arguably, section 34. That provides that a constable may put questions about the offence to a person who is in custody but who has not been officially accused of committing the offence or an offence arising from the same circumstances. Subsection (4) makes it clear that the person is under no obligation to answer any question, other than to give their name, address, date of birth, place of birth and nationality. By section 31, a person who is in custody or who is attending at a police station voluntarily to be interviewed by a constable must be informed, not more than one hour before the interview, of the general nature of the offence, that they are under no obligation to say anything other than to give the information required by section 34(4), about their right to have a solicitor present and about their rights under Chapter 5 to have intimation sent to a person and to a solicitor and their right to a consultation with a solicitor.39 The right to legal advice Section 44 of the 2016 Act provides that a person who is in police custody has the right to have a private consultation with a solicitor at any time. The exercise of the right can be delayed but only in exceptional circumstances and where that is necessary in the interests of the investigation or the prevention of crime or the apprehension of offenders. In Cadder v HM Advocate40 the Supreme Court held that article 6 ECHR requires that a person who is in police custody has the right to have access to a lawyer prior to being interviewed unless there are compelling reasons to restrict that right. Generally speaking, evidence of a police interview when the suspect has not had an interview with a lawyer is likely to be inadmissible and so, if access to a lawyer is delayed, the interviewing of the suspect should also be delayed. Of course, in principle, any Convention right can be waived. In McGowan v B,41 in the Supreme Court, Lord Hope of Craighead said that where the accused, having been informed of their rights, states that they do not want to exercise them, their express waiver of those rights will normally be held to be effective. The circumstances of that case illustrate a

39

Chapter Five also provides for specific rights for those under eighteen and those who are vulnerable by reason of mental disorder. 40 2011 SC (UKSC) 13. 41 2010 SCCR 109.

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valid waiver. They were that the accused had been detained on suspicion of housebreaking. He was told that he had the right to a private consultation with a solicitor before being questioned by the police and at any time during questioning. He was asked whether he wished such a consultation. He replied that he did not and signed a written confirmation of that. The position was reconfirmed at the start of the interview with him. During the course of the interview he made incriminating statements, was cautioned and arrested in relation to that and made no reply. There was held to be no breach of his Convention rights and the interview was admissible. Information about the nature of the matter under investigation will always be important when considering whether the right has been waived; and, of course, that principle is reinforced by section 31(2) of the 2016 Act, which provides that a person in custody must be told, not more than an hour before being interviewed both of the general nature of the offence and of the right to have a solicitor present at the interview. Two cases under the former law illustrate the position about information about the offence. In R v HM Advocate,42 the appellant was charged with assaulting one complainer indecently and with assaulting a different complainer with intent to rape her. He was detained about nine months after the incidents when the complainer in the indecent assault charge thought she recognised him in a pub. The officers who detained him had no details of the alleged offence beyond its general nature as an indecent assault. Having been told that he was detained for indecent assault, the appellant was asked whether he wanted a solicitor advised of his detention and whether he wanted a private interview with a solicitor before he was questioned. He declined both opportunities and then signed a form to that effect. At the start of the interview, he confirmed that position. He was not told of the date and locus of the alleged offences, was not told that more than one allegation was being investigated and was not told that one of the allegations was one of assault with intent to rape. It was argued on his behalf that he could not be said to have been sufficiently informed of the nature of the allegations against him prior to waiving his right and therefore the waiver could not be said to be valid or informed. The Appeal Court did not agree. The court took the view that: ‘the appellant was advised at the outset that he faced an allegation of indecent assault. That is a serious matter. In our opinion, it was not necessary for the purposes of waiver of the right to a solicitor that the appellant was 42

2013 SCCR 164.

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given any further specification – for example, the precise date or dates, the locus or loci, and whether there was an allegation of one or more incidents. The information given was, in our view, quite sufficient to enable the appellant to decide whether or not he needed access to a solicitor’.

The appeal was refused. One should contrast with this the unsuccessful Crown appeal in Miller v Smith43 (decided on the same day as R). The respondent was a beat keeper on an estate and he was interviewed by an SSPCA inspector and a police officer about a crow trap that was found to contain live buzzards. He was, in due course, charged with offences in relation to the taking and keeping of wild birds and breach of certain licence requirements. Although the sheriff formed the view that the respondent had, when he was interviewed, been ‘very much a suspect’ he had been told nothing – even in general terms – about the matters about which he was to be asked questions. He was cautioned and told that he was entitled to seek legal advice before being interviewed and declined. He was never told that he could reconsider that position during the course of the interview. The sheriff decided that his waiver was not informed, voluntary and unequivocal. The Appeal Court held that the sheriff’s reasoning and conclusion could not be criticised and that he had been well entitled to form the view that the interview had been unfair. Having said all of that, a person who is under the age of sixteen, who is sixteen or seventeen but subject to a compulsory supervision order44 or who is over sixteen but unable, owing to a mental disorder, to understand what is happening or to communicate effectively with the police may not consent to being interviewed without having a solicitor present.45 The admissibility of police interviews We return to section 34 of the 2016 Act. Subsection (5) provides that subsection (2), which permits a constable to put questions in relation to the offence, is without prejudice to any rule of law as regards the admissibility in evidence of any answer given. The effect of a provision in those terms under the former law was considered in Tonge v HM Advocate.46 It is thought that it continues to be helpful. The Lord Justice-General (Emslie) said: ‘the admissibility in evidence of anything said by a detainee falls to be determined by the common law and where the common law and proper practice 43

2013 SCCR 169. See Children’s Hearings (Scotland) Act 2011. 45 2016 Act s. 33. 46 1982 SCCR 313. 44

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would require, in the interests of fairness and fair dealing, that a full common law caution be given, the omission to give it before questioning a suspect who has received no more than the limited warning prescribed by [the Act] will, at the very least, on that account alone, place the admissibility of any evidence elicited from the suspect in peril’.

Tonge was a case in which the police relied on the legislation rather than giving a full caution. This was a significant factor in the Appeal Court’s decision that the answers obtained were inadmissible. The Lord JusticeGeneral finished his judgment with the words: ‘I would strongly urge police officers throughout Scotland who proceed to accuse a detainee or to question him or to take from him a voluntary statement to rely not at all on the efficacy of the warning described in [the legislation] . . . ’

The converse situation, in which the statutory warning was not given but a common law caution was, arose in Scott v Howie.47 Lord Justice-General Hope treated the omission of the statutory warning as being of no significance and, on the basis that the common law caution had been given, held that the evidence of the statement made was not open to objection. That said, it is clear from HM Advocate v Friel48 that a caution will not be a universal panacea for otherwise unfair practice. In that case, customs officers subjected the accused to a sixteen-hour interview and, during the latter part of that interview, conducted what amounted to a cross-examination of him. That, it will be recalled, was one of the practices which was to be deprecated in Hartley. The evidence was held to be inadmissible. Recording police interviews Police interviews of suspects are video-recorded and, once proceedings have been commenced, transcribed by the Procurator Fiscal’s office. If the transcript is served on the accused at least fourteen days before the trial, a certified transcript is to be received in evidence and is sufficient evidence of the making of the transcript and of its accuracy, all in terms of the 1995 Act section 277, unless the accused serves notice under section 277(2) that he or she challenges the making of the transcript or its accuracy. In a trial on indictment the recording will usually be played as part of the Crown case (though in Hudson v Hamilton49 the proposition that it should be played 47

1993 SCCR 81. 1978 SLT (Notes) 21. 49 1992 SCCR 541. 48

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during the evidence of the second interviewing officer also was described by the Appeal Court as a pure formality and a waste of the court’s time). It often happens that a recording of an interview which is otherwise fair includes material that is inadmissible for other reasons (such as the disclosure of previous convictions). In such a case, the transcript is edited and the inadmissible material is not played at the trial. Tunnicliffe v HM Advocate50 is authority for the proposition that the playing of the whole, unedited tape cannot be cured by directions. Statutory requirements to answer questions All of this is subject to modification where statute empowers an investigator to ask questions that must be answered. The most common example of this is probably section 172 of the Road Traffic Act 1988, which empowers police officers to require certain persons to tell them who was driving a motor car at the time of an alleged offence and which makes it an offence to fail to do so. In considering the statutory predecessors of section 172 the High Court held in both Foster v Farrell51 and Tudhope v Dalgliesh52 that in such cases a caution is not only inappropriate, but positively wrong. It would be a nonsense to tell someone that they are not obliged to answer a question when the law prescribes a criminal penalty for declining to do so. Brown v Stott53established that a section 172 requirement and the use of the answer in evidence does not breach the right to silence derived from article 6(2) ECHR. Admissibility of reply to charge of difference crime from that prosecuted A reply to a charge of committing one crime will be admissible at trial in relation to a different crime of the same category (violence, dishonesty, etc.) arising out of the same factual circumstances, at least if the crime actually prosecuted is less serious than that originally charged (and perhaps even if it is more serious54). Thus in Willis v HM Advocate55 a reply made to a charge of murder was allowed in a trial for culpable homicide; and in McAdam v HM Advocate56 a reply to a charge of assault to severe injury was allowed at a trial for attempted murder.

50

1991 SCCR 623. 1963 SLT 182. 52 1986 SCCR 559. 53 2001 SCCR 62. 54 McTavish v HM Advocate 1975 SLT (Notes) 27. 55 1941 JC 1. 56 1960 JC 1. 51

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Questioning a person who has been officially accused A person is officially accused, in terms of section 63 of the 2016 Act, when they are charged by the police or when the prosecutor initiates proceedings against them. The starting point is that, once the police have charged the accused person, replies to further questions which they ask about that charge will be inadmissible. In Stark & Smith v HM Advocate57 two men who had been charged with theft were questioned about that charge whilst in the police cells and the evidence of the reply one of them made was held to be inadmissible. This was followed in Wade v Robertson58 in which a man was in custody charged with the theft of whisky. Whilst he was incarcerated his lodgings were searched and a stolen bottle was found. He was confronted with this and cautioned whereupon he made an incriminating statement. This too was held inadmissible. Jack v HM Advocate59 is, perhaps, the most extreme case imaginable. The Appeal Court had no difficulty in rejecting as inadmissible a remark made to a police officer acting as dock escort during the trial itself, where she had encouraged the accused to speak about the allegations. None of this prevents the police from asking questions about other matters. In MacDonald v HM Advocate60 the accused had been charged with conspiracy to commit robberies and with committing a particular robbery. His answers to questions about other robberies were allowed in evidence. Court authorisation of questioning after official accusation In the Carloway Review, however, it was noted that there are a number of situations in which, as part of the continued orderly investigation of a crime, the police ought to be able to question the suspect, or to question them further, after the expiry of the twelve-hour period and even after charge. The examples given included the situation in which, for medical or other good reasons (such as drink or drugs), it has not been possible to question the suspect properly prior to the expiry of the twelve-hour period. The review also noted that it might be that after a suspect has been charged further or new evidence has come to light that the accused might be able, and indeed wish, to comment upon. It might, for example, have taken some weeks to obtain a detailed technical report on the use of a suspect’s, or a complainer’s, mobile telephone or computer. The Review concluded that there is a compelling argument that it is reasonable both for the police to be able to pose further questions after charge or the submission of a report to the procurator fiscal and for the accused 57

1938 JC 170. 1948 JC 117. 59 1999 SCCR 296. 60 1987 SCCR 581. 58

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to be able to make such comment as they wish, subject to them being provided access to legal advice and cautioned in the normal way. Section 35 of the 2016 Act provides such a mechanism. By subsection (1), the court is empowered to authorise a constable to question a person about an offence after the person has been officially accused of committing the offence. The application must be made to the sheriff unless the accused has already been indicted in the High Court. Authorisation may be granted only if the court is satisfied that allowing the person to be questioned is necessary in the interests of justice,61 taking into account the seriousness of the offence, the extent to which the person could have been questioned earlier in relation to the information which, it is believed, might be elicited by the proposed questioning and, where the person could have been questioned about it earlier, whether it could reasonably have been foreseen that the information might be important to proving or disproving whether the person committed an offence.62 Where a warrant has been granted for the person’s arrest or they have already appeared in court, the application must be made by the prosecutor63 and the person must be given an opportunity to make representations.64 Otherwise, the application is made by a constable.65 Any authorisation granted must specify the period for which questioning is authorised and any other conditions that the court considers necessary to ensure that allowing the proposed questioning is not unfair to the person.66 That is not, of course, the same as the conduct of the questioning. It might be fair to allow questioning and yet the way in which the questioning is conducted might fail the fairness test. The decision of the court on such an application is final.67

Search Search of the person The first question in a search type situation, whether of the person or of property, is whether what was done constituted a search at all. In Devlin v Normand68 a prison officer formed the suspicion that a visitor had something in her mouth. He asked her to open her mouth and to give him the package 61

2016 Act s. 35(2). 2016 Act s. 35(3). 63 2016 Act s. 36(1)(a). 64 2016 Act s. 35(4). 65 2016 Act s. 36(1)(b). 66 2016 Act s. 35(6). 67 2016 Act s. 35(7). 68 1992 SCCR 875. 62

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that he saw there. She did so and it turned out to be cannabis resin. The defence argued that this was an unlawful search and that the evidence was therefore inadmissible; but the Appeal Court held that no search took place at all within the proper meaning of that expression. Rather, the court characterised what happened as a request complied with voluntarily, basing the distinction on the absence of any element of force in what was done. Accordingly, the evidence was admissible. In the situation in which the suspect is not a volunteer, the starting point is section 65 of the 2016 Act, which provides that it is not lawful for a constable to search a person who is not in police custody except in accordance with a power of search conferred in express terms by an enactment or under the authority of a warrant expressly conferring a power of search. If the search was unlawful, any evidence recovered will be inadmissible unless the irregularity is excused. As the law has developed, urgency has become the most common ground of excusal. So, for example, it was held in Bell v Hogg69 that, in view of the risk of the evidence being lost, a police officer was entitled to take palm rubbings for suspected verdigris from men suspected of the theft of copper wire who had not been cautioned, charged or arrested. The statutory power of search most likely to be encountered in practice is that conferred by section 23(2) of the Misuse of Drugs Act 1971. It provides that, if a constable has reasonable grounds for suspecting that any person is in possession of a controlled drug in contravention of the 2016 Act or of regulations made under it the constable may search that person, detain them for the purpose of searching and search any vehicle or vessel in which the constable suspects that the drug may be found. In order to search a vehicle or vessel, the constable may require the person in control of it to stop. The section empowers the constable to seize and detain anything found that appears to be evidence of an offence under the 2016 Act. It is always possible, of course, that an officer having reasonable grounds to suspect one offence will conduct a search and discover a different one. It is, for example, common for an officer searching under section 23(2) of the Misuse of Drugs Act 1971 to find that the suspect is in possession of a knife (in contravention of section 49 of the 1995 Act). The discovery of the knife will usually be admissible in evidence. The situation is the one encountered in Tierney v Allan,70 though that was about a search of premises. Police officers searching a house under a warrant in relation to stolen gas cylinders saw a typewriter under a cot. It fitted the description of a typewriter stolen from a nearby school and it turned out that it was, indeed, stolen. The 69

1967 JC 49. 1989 SCCR 344.

70

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evidence about the typewriter was held to be admissible. It related to the unexpected discovery of an item which was obviously suspicious during a lawful search for property specified in the warrant. The court did not analyse that point fully but circumstances of urgency will often usually be a basis for excusing irregularities in the way contemplated by Lawrie v Muir. Taking samples Section 18 of the 1995 Act is another enactment which provides for search of the person, or something akin to it, but it is concerned with the person in custody. It deals with the taking by the police of prints and other impressions, hair and nail clippings and swabs, etc. of body fluids on external parts of the body. Subsection (2) provides that, where a person has been arrested and is in custody a constable may take from them, or require them to provide, such relevant physical data (defined as fingerprint, palm print, prints of other external parts of the body and a record of a person’s skin on an external part of the body) as the constable may, having regard to the circumstances of the suspected offence, reasonably consider it appropriate to take. The subsection provides that the person must comply with the requirement. The samples thus taken and the record of relevant physical data must, by subsection (3), be destroyed if the person is not subsequently convicted of that offence. By subsection (6), with the authority of an officer of rank no lower than inspector, a constable is allowed to take from the person, from the hair of an external part of the body (other than pubic hair), a sample of hair or other material by cutting, combing or plucking; from or from under a fingernail or toenail a sample of nail or other material; from an external part of the body by swabbing or rubbing, a sample of blood, other body fluid, body tissue or other material. The meaning of the phrase ‘external part of the body’ was much discussed in Parliament during the passage of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (in which the provision first appeared) but never satisfactorily defined. It is thought that it means precisely what it says and that the section will permit samples from intimate parts of the body provided no degree of penetration is involved. The fact that section 18(6A) of the 1995 Act has now been enacted, in terms of which a constable or a police custody and security officer may take, from inside the mouth, by means of swabbing, a sample of saliva or other material, tends to support that view of subsection (6). Section 18(8) of the 1995 Act provides that the provisions of that section are without prejudice to other powers of search, powers to take possession of evidence where there is imminent danger of its being lost or destroyed, or power to take prints, impressions or samples under the authority of a warrant.

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Invasive search In many cases, what the Crown will require for its investigation is sample of the suspect’s DNA and that can be obtained from a mouth swab taken under section 18(6A) of the 1995 Act. When forensic science was less developed, there was a need to obtain blood samples for comparison. In other cases, what was wanted was an impression of part of the body (often, the teeth, to compare with a bite mark). Sometimes, that need still arises. Such sampling requires either the consent of the person from whom the samples are taken or a warrant. The development of the law began with Hay v HM Advocate.71 The appellant had been convicted of murder. Part of the evidence had been that a bite mark was found on the body of the victim. The inmates of a nearby approved school72 were under suspicion and, after impressions of the teeth of all of the inmates, obtained with their consent, had been examined, all were eliminated except the appellant. In order to permit the carrying out of a more detailed comparison, the procurator fiscal presented to the sheriff court an application for a warrant to take dental impressions, photographs and measurements of the appellant’s mouth. That warrant was granted and the samples obtained. The subsequent examination demonstrated that the appellant’s dental configuration matched the mark precisely and that evidence was led at his trial. It was argued on appeal that the granting of the warrant had been incompetent and that, even if the warrant had been competent, the evidence should not have been admitted. The court, in dealing with the competence of the warrant, noted that the need in the public interest for ‘promptitude and facility in the identification of accused persons and the discovery on their persons or on their premises of indicia either of guilt or innocence’ was to be held in balance with the need to protect the liberty of the subject from any undue or unnecessary invasion. The court went on to say that warrants of this sort, sought before the accused has been arrested, will only be granted in special circumstances and that the hearings on such applications are by no means formalities. However, after reviewing a number of early authorities, the court expressed the unequivocal view that such warrants are competent. This decision is of high authority. It was a full bench decision by five judges and, indeed, the trial judge had heard argument on the point with

71

1968 SLT 334. An approved school was an institution for ‘neglected and delinquent children’, to which juvenile offenders could be sent by a court but where they were subject to a limited level of security.

72

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two other judges to assist him before repelling the defence objection. In all, therefore, eight judges, including the Lord Justice-General and Lord Justice-Clerk were unanimous that such warrants are competent. It is not seriously possible to argue that they are not. The issue next appears in the reports as HM Advocate v Milford,73 a sheriff court decision. The allegation was rape and the procurator fiscal sought a warrant to take a sample of blood from the accused for comparison with blood on the inside of the fly of his trousers. By contrast with Hay, the accused had been arrested and appears to have been committed for further examination74 at least. It was argued in opposition to the application that the medical process involved went beyond the mere taking of impressions and was truly invasive. This, it was said, was an unprecedented invasion of personal liberty. The sheriff noted that the offence alleged was a very grave one and that the taking of a blood sample is comparatively innocuous. He decided that balance was in favour of him granting the warrant, which was neither too wide nor too oppressive. There was no appeal in Milford but that case was reviewed by the Appeal Court in Wilson v Milne,75 an assault case in which a warrant to take a sample of blood from the accused had been granted. It was argued that Milford had been wrongly decided but the court, far from disapproving Milford, treated it as authoritative when read along with Hay. Several other cases about taking blood samples followed and the law was summarised in this way in Morris v McNeill76: ‘Although it is competent to grant a warrant such as was sought in the present case to take a blood sample from an accused or a suspect, such a warrant will not be lightly granted and will only be granted where the circumstances are special and where the granting of the warrant will not disturb the delicate balance that must be maintained between the public interest on one hand and the interest of the accused on the other.’

It is now rare for blood samples to be required. The cases just discussed predate developments in the analysis of DNA samples which give better results and which involve only a mouth swab. However, as Hay illustrates, it is not only blood samples for which the Crown has sought warrants of this type. In Lees v Weston77 a warrant was sought to fingerprint the accused where the police had omitted to do that when he was arrested in connection with drugs offences. The sheriff refused the warrant, on the basis that the police 73

1973 SLT 12. See p. 67 below. 75 1975 SLT 26. 76 1991 SCCR 722. 77 1989 SCCR 177. 74

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had had their chance and that it was not appropriate to grant a warrant such as this to allow the Crown to improve their case by trying to get round a ‘police blunder’. The Appeal Court took a different view on appeal, pointing out that the taking of finger impressions involved a relatively minor invasion of bodily integrity, which was outweighed by the public interest. Again, in Smith v Cardle78 the procurator fiscal recovered a video recording of a fatal assault; it was known that the perpetrator must be either the complainer (in this Bill of Suspension) or his identical twin brother. A warrant was sought to obtain precise physical measurements for comparison with the video, although by definition the complainer was not yet the suspect. The Appeal Court held that the balance was in favour of the public interest and that there would be no bodily invasive procedures or any great inconvenience. Accordingly, the sheriff was entitled to grant the warrant. With these cases must be contrasted McGlennan v Kelly.79 That case concerned an allegation of rape. A pubic hair, which could not have come from the victim, was found at the locus but at the time of the offence the particular comparison of such hairs that was necessary was not known to be scientifically practicable. It became so before the accused was brought to trial and an application for a warrant to take such a sample was presented almost two years after the offence. The sheriff refused the application and it was of some importance to the decision that the accused had provided such samples at the time of the initial investigation of the offence and they had been examined within the limits of the technology then available. The sheriff took the view that the balance in these circumstances was against granting the warrant, a decision which the Appeal Court declined to disturb. Lord Dunpark said: ‘the grant or refusal of a warrant of this nature is ultimately a matter for the discretion of the sheriff and, unless it can be shown that he failed to exercise a proper balancing exercise in the public interest and in the interest of the respondent, there was no wrong exercise of the discretion’.

That balancing exercise will, of course, require to take account of the fact that invasive techniques are a clear interference with rights under article 8 ECHR and, accordingly, only justifiable where they are shown to be necessary (including, in particular, proportionate). Search of property Just as in the case of search of the person, the first question has to be whether what was done constituted a search at all. In Davidson v Brown,80 78

1993 SCCR 609. 1989 SCCR 352. 80 1990 SCCR 304. 79

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police officers, for another purpose, stopped a car in which the appellant was a passenger. They saw a closed plastic bin in her possession and asked to see inside it. She handed it to them and they found it to contain stolen property. Objection was taken and repelled. The Appeal Court held that there was no search but merely a voluntary act on the part of the accused. Again, in Baxter v Scott,81 police officers arrested the accused on a drink-driving charge. They took possession of his car pending him becoming fit to drive and, since they were responsible for its safekeeping, checked its contents. They found stolen property. The Appeal Court held that the police were entitled to check the car routinely, that there had been no search as such and that the evidence that particular property had been found in the course of the checking of the vehicle was admissible. Statutory search warrants Once it is clear that there was a search, properly so-called, the question will be whether that search was lawful. Section 60 of the Civic Government (Scotland) Act 1982 gives constables power (subject to reasonable grounds to suspect that a person is in possession of stolen property) to search persons and vehicles and the premises of second hand dealers but, apart from that, in the absence of a warrant, search of premises is likely to be irregular and evidence obtained at risk of being held to be inadmissible unless it is carried out with the consent of the householder. The point is that it is the privacy interest of the householder that the law protects, not the interest of the suspect in avoiding the gathering of evidence unless the police jump successfully through particular hoops. Many statutes make specific provision for search warrants. The most commonly encountered statutory search warrant is that provided for by section 23(3) of the Misuse of Drugs Act 1971. We examine it briefly here both for its own importance and as an example of a type. Section 23(3) permits the granting of a warrant by a justice of the peace, a magistrate or a sheriff, who is satisfied by information on oath that there is reasonable ground for suspecting either: (a) that there are controlled drugs in the possession of a person on premises in contravention of the 1971 Act or regulations made under it; or (b) that a document relating to a drugs offence is in the possession of a person on premises. What is required is reasonable ground for suspicion, not a mere belief but not a prima facie case either.82 And the suspicion must relate to possession of controlled drugs at the time the warrant is granted, not to a suspicion that there will be drugs 81

1992 SCCR 342. Knaup v Hutchison 2002 SCCR 879.

82

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in someone’s possession on the premises at some future point.83 The warrant may be executed within one month of the date of its grant and allow a constable to enter the premises, if need be by force, to search the premises and anyone found thereon and to seize and detain drugs or any document fitting the description in the application. Like all Scottish search warrants, the section 23(3) warrant takes the form of an application which narrates the essential facts and is followed by a docquet signed by the grantor to the effect that he or she ‘grants warrant as craved’. The section 23(3) warrant can only be granted if the grantor is satisfied by evidence on oath that the criteria are fulfilled and that oath and satisfaction are narrated on the face of the application and warrant. There is a somewhat different procedure under the Proceeds of Crime Act 2002 for orders in connection with confiscation investigations, civil recovery investigations and money laundering investigations. Sections 380–386 of that Act make provision for the sheriff to grant production orders. A production order is an order requiring a person in possession or control of material (frequently a bank or other financial institution) to hand it over or to give access to it within a specified period.84 The requirements for such orders are detailed and beyond the scope of this book. The Act also provides for search warrants in certain circumstances.85 Common law search warrants Even if there is no statutory provision for a warrant, the procurator fiscal is always entitled, even in relation to a statutory offence, to seek a warrant at common law from the sheriff unless statute specifically excludes that right in the particular circumstances. In McNeill, Complainer86 a procurator fiscal sought such a warrant but the sheriff refused on the ground that the particular statute said to have been contravened did not provide for a search warrant. The Appeal Court held that this was an incorrect approach. The sheriff is, of course, perfectly entitled to refuse to grant a warrant if, after considering in light of article 8(2) ECHR the balance to be struck between the public interest in the detection of crime on the one hand and the interest of the citizen whose property it is intended to search on the other, he or she is not satisfied that it would be proportionate or otherwise necessary or appropriate to grant the warrant. Such a refusal has been reported87 83

2002 SCCR 879. Proceeds of Crime Act 2002 s. 380. 85 Proceeds of Crime Act 2002 s. 387. 86 1984 SLT 157. 87 Green’s Criminal Law Bulletin (June 1993). 84

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where it was apparent that the true purpose of the search was not directly proof of the offence that had been reported to the police (indecent assault during a consultation with an aromatherapist) but an attempt to recover a list of other customers in the hope that interviewing them would discover other offences so as to enable the Moorov doctrine to be invoked (a matter dealt with below88). Common law search warrants can be obtained by the procurator fiscal by ex parte application to the sheriff. This means that the application is made in private and without application being intimated either to the holder of the material or to the suspect, neither of whom has any opportunity to make representations about whether or not it should be granted. The procedure is available both before and after the institution of proceedings, in relation to any offence whatsoever and in relation to any type of material. Defective warrants The obvious question which arises in relation to a warrant is what happens when it is defective. The first point to be made about this is that the Appeal Court has discouraged efforts to invoke latent defects. In Aziz v HM Advocate,89 the court noted that the warrant that was attacked was ex facie valid. The court thought it appropriate to apply ‘the normal presumption as to the regularity of the proceedings’ and could find nothing to suggest any impropriety. This built on the decision in Allan v Tant,90 in the context of a warrant under section 23(3) of the Misuse of Drugs Act 1971, that where a warrant is ex facie valid it is not permissible for the trial court to hear evidence designed to show that the procedure for obtaining the warrant was not followed properly. It appears that the only remedy available to the accused in such a case will be to proceed by bill of suspension91 before the trial in an attempt to reduce the warrant, as was done in Stuart v Crowe.92 HM Advocate v Rae93 suggests that a bill of suspension may be pursued even during the trial. So far as patent defects are concerned, the absence of the signature of the grantor of the warrant was held to be fatal in HM Advocate v Bell.94 However, Dickson v Crowe95 establishes that, where a warrant requires 88

See p. 210 below. 1998 SCCR 736. 90 1986 SCCR 175. 91 See p. 285. 92 1992 SCCR 181. 93 1992 SCCR 1. 94 1984 SCCR 430. 95 1998 SCCR 406. 89

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information on oath, leaving the space for the name of the deponent blank is not fatal because that is part of the minute of proceedings and not of the warrant. The same result was reached in Whyte v Vannet96 where the wrong name was inserted. Failure to state the address of the premises to be searched led to the refusal of the court to hold evidence admissible in HM Advocate v Cumming.97 It is not clear whether it is absolutely necessary for the date of granting the warrant to appear, except where there is a statutory time limit on the execution of the warrant when it certainly is essential. Warrants under section 23(3) of the Misuse of Drugs Act 1971 are an example of this. Other defects may be excusable and the test, as so often in relation to the admissibility of evidence, will be that of fairness. If there is no material prejudice to the accused, the defect is likely to be excused. So, for example, failure to give the name and designation of the sheriff who granted the warrant was not fatal in HM Advocate v Strachan.98 Was the search within the scope of the warrant? Whatever kind of search is in contemplation and whatever the kind of warrant obtained, the question that will arise is whether the search which was carried out was within the scope of the warrant. Whilst the court, following Fairley v Fishmongers of London,99 is unlikely to take an excessively formalistic view of this, there are limits. In Singh v HM Advocate100 a search warrant authorised entry by four persons. Eight entered. The search was held to have been unlawful. The argument that only four had actually searched while the other four had interviewed the occupants of the premises was not well received by the court. The general principle is that once the police are lawfully on premises with a search warrant or the permission of the occupier they may take any suspicious articles they happen to see, even if these are outwith the strict terms of the warrant (or permission). However, they must not search actively for articles outwith the warrant or take away articles that might, on further examination, disclose other offences. Thus, in HM Advocate v Hepper101 police searched the house of a suspect without warrant but with the permission of his wife in pursuance of an investigation not connected with the subsequent charge; they saw a briefcase with someone else’s name and address on it and 96

1997 SCCR 461. 1983 SCCR 15. 98 1990 SCCR 341. 99 1951 JC 14. 100 2001 SLT 812. 101 1958 JC 39. 97

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that was plainly suspicious. It was held at the trial for theft that the removal of the briefcase had been proper and the evidence allowed. By contrast, in HM Advocate v Turnbull,102 a warrant was obtained for search of an accountant’s office in relation to the affairs of a particular client but police removed a large quantity of material relating to other clients, which they subsequently trawled through and found other offences. It was held that the removal of the documents which were not in themselves plainly suspicious was illegal and that evidence was not allowed. Much depends on the particular circumstances of the case. We may contrast Tierney v Allan103 and Innes v Jessop.104 As we saw above, in Tierney, evidence that police officers searching a house under a warrant in relation to stolen gas cylinders had unexpectedly found a stolen typewriter under a cot was held to be admissible. The item was obviously suspicious and it was clear that the search had not been random. However, in Innes the search was under a warrant granted under the Firearms Act 1968 and the police removed a driving licence, a subcontractor’s tax certificate and a number of other items that had nothing to do with anything and less to do with firearms. This was held to be a random search and the results were inadmissible. The significance of the individual circumstances of a case is carried perhaps as far as it can get by Drummond v HM Advocate.105 Two police officers searched a house and the evidence of the first was that he had been looking deliberately for items not covered by the warrant. His evidence was held to be inadmissible. The evidence of the second officer, however, was that he had been looking for items that were covered by the warrant and he had happened upon other articles. His evidence of finding such other articles was held to be admissible. Cases of urgency In some cases, as the 1995 Act section 18(8) recognises, there can be a substantial risk of evidence being lost during the time it takes to get a warrant. Just as in relation to search of the person, urgency is the most common ground upon which irregular searches are excused. In Edgley v Barbour,106 police officers saw the accused driving at speed. When they directed a radar gun at his car, he braked at once. They suspected that he was using a radar detection device contrary to section 5(b)(i) of the Wireless Telegraphy Act 1949 and saw what appeared to be such a device on 102

1951 JC 96. 1989 SCCR 344. 104 1989 SCCR 441. 105 1992 SCCR 290. 106 1994 SCCR 789. 103

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his dashboard as they stopped him. When they approached him, it had gone and he declined to open the door or step out of the vehicle. One officer opened the passenger door and opened the glove compartment where he found such a device. It was found as a fact that in view of the lateness of the hour and the remoteness of the location, it would have been impracticable for the officers to get a search warrant. The appellant could not have been detained and the time lapse would have allowed him to dispose of the device. The Appeal Court held that the officers were entitled to act as they had and that the interest of the public outweighed the relatively minor interruption of the appellant’s privacy.

Regulation of investigatory powers Some types of investigation, especially at an early stage, fall within the framework of the Regulation of Investigatory Powers Acts. The origins of this lie in article 8 ECHR, which insists that there must be no interference with the right to respect for the private and family life, the home and correspondence. The right is qualified and may be interfered with if it meets the criteria set out in article 8.2, which include a requirement that the interference is ‘in accordance with law’. In a series of cases107 the European Court of Human Rights has made it clear that this means that the investigative measures used by the police must, if they interfere with the right protected by article 8, have a clear basis in domestic law – that is, that there must be law which says that they can use the technique. It is not enough that they are not prohibited from using it. The qualification that this applies only to activities which interfere with the rights protected by article 8 is important. There is no reasonable expectation of privacy and hence no article 8 issue in relation to things done in a public place. In Connor v HM Advocate108 objection was taken to the leading of evidence of observations made on the street entrance of the common close that contained the flat in which the appellant lived. That objection failed because there was no reasonable expectation of privacy in relation to what happened on the street and those observations could not be described as a breach of the appellant’s right to respect for his private and family life and home in terms of article 8. The Supreme Court reached the same conclusion in Kinloch v HM Advocate.109 In cases in which the article 8 rights are engaged, the European Court has reasoned that, since the implementation in practice of surveillance measures 107

Malone v United Kingdom (1984) 7 EHRR 14; Kruslin v France (1990) 12 EHRR 528; Khan v United Kingdom (2001) 31 EHRR 45. 108 2002 SCCR 423. 109 2013 SCCR 100.

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is not open to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of law for the legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference. So, in Khan v United Kingdom, the Court found against the UK on the basis that the existence of Home Office guidelines to govern surveillance did not constituted the necessary ‘law’ for the purposes of article 8. The Court noted that, since such guidelines were neither legally binding nor directly publicly accessible, there was no domestic law regulating the use of covert listening devices at the relevant time and held that the interference could not, therefore, be considered to be ‘in accordance with law’. This is the issue which the Regulation of Investigatory Powers (Scotland) Act 2000 (the 2000 Act) and the corresponding Regulation of Investigatory Powers Act 2000, passed by the UK Parliament, set out to address. The heart of the Scottish Act is section 5, which provides that conduct to which the 2000 Act applies shall be lawful for all purposes if an authorisation under the Act confers an entitlement to engage in the conduct in question and the conduct is in accordance with the authorisation. This is critical. If what is done interferes with the rights guaranteed by article 8(1) and is not within the ambit of the authorisation, it will not be rendered lawful by the 2000 Act. If it is not rendered lawful by the 2000 Act and if there is no other positive rule of law authorising what is done, the evidence obtained will, in terms of Khan, be obtained in breach of article 8 and hence irregularly. The usual rule will then apply. Before irregularly obtained evidence can be admitted, the irregularity will have to be excused. The 2000 Act is concerned with covert investigation techniques and seeks to ensure that the law clearly covers the purposes for which such techniques may be used, which authorities can use the powers and who should authorise each use of the powers. It applies primarily (though not exclusively) to the police and consideration here is limited to police investigations. It also provides for independent judicial oversight and a means of dealing with complaints and redress for the individual. The 2000 Act is concerned with three sorts of surveillance. In practice, they often overlap. The approach which is taken is to put in place a framework of authorisations and to provide for the development of statutory codes of practice (which are capable of being updated quickly to take account of technological developments). The first of the 2000 Act’s concerns is ‘directed surveillance’, which is surveillance undertaken in relation to a specific investigation in order

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to obtain information about a particular person. The second is the use of ‘covert human intelligence sources’. In essence, this unattractive mouthful denotes undercover officers and informants who are participating in the conduct being investigated. The use of either of these techniques by the police will require authorisation from a police superintendent.110 The third sort of surveillance is ‘intrusive surveillance’, which is surveillance carried out into things that are happening on residential premises or in any private vehicle. Authorisation for such surveillance has to be given by the chief constable, another senior officer designated by the chief constable or by the Police Investigations and Review Commissioner. It can only be given where it is necessary for the prevention or detection of serious crime and is proportionate to what is sought to be achieved by carrying it out. That authorisation is subject to review by a judicial commissioner.

Identification procedure Identification parades have been part of investigations for something like 150 years. They are still in frequent use, especially because the increasing frequency with which witnesses give evidence from behind a screen or from a remote site makes dock identifications impossible. The form they take now is a video identification parade.111 A photograph is taken of the suspect and the witness views it amongst a selection of photographs shown on a screen. The witness is asked to tell the police officers who are running the procedure the number assigned to the photograph of the person they recognise as the alleged perpetrator of the offence. A more detailed description of the process is not needed here. Sometimes, identification may be by voice. It was held in McFadden and Spark v HM Advocate112 that asking a suspect to speak for that purpose does not breach their right not to incriminate themselves in terms of article 6 ECHR. Identification procedures are supported by section 267B of the 1995 Act, which provides that the court may, on the application of the prosecutor, make an order requiring the accused person to participate in an identification parade or other identification procedure. The application can be made orally or in writing but it cannot be made until proceedings have commenced. (Typically, it is made when the accused appears on petition, as described in the next chapter, though it also applies under summary procedure.) The accused must be given an opportunity to make representations, 110

Regulation of Investigatory Powers (Scotland) Act 2000 ss. 6–8. ‘VIPER.’ 112 2009 SCCR 902. 111

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if they are present. If they are not present, the court may, if it considers it appropriate to do so (as it almost invariably would), fix a hearing to allow such representations to be made. It is rare for the application to be opposed, though common for the defence to tell the court that identification will be agreed in a joint minute at trial and for the Crown to withdraw that application once that undertaking is given.

Chapter overview • Departure from the legal rules that govern investigations means that what is done is irregular and imperils the admissibility of any evidence recovered. • However, the courts will excuse some irregularities and admit the evidence, especially in cases of urgency or when the investigator has acted in good faith. • The police may arrest a person in three situations: Under the authority of a warrant granted by the court. Under a statutory provision which explicitly authorises arrest. Under section 1 of the Criminal Justice (Scotland) Act 2016, where the constable has reasonable grounds for suspecting that the person has committed or is committing an offence. • Immediately after arrest, the constable must: tell the arrested person: ■ that they are under arrest; ■ the general nature of the offence for which they have been arrested; ■ that they are under no obligation to say anything except give their name, address, date and place of birth and nationality; ■ that they have a right to have information sent to a solicitor; ■ that they have a right to a private consultation with a solicitor. take the arrested person to a police station as quickly as reasonably possible. • Once arrested, unless charged, the person can be kept in custody for up to twelve hours on the authorisation of a sergeant or above; There must be a review after six hours by an inspector or above; The twelve-hour period can be extended for a further twelve hours on the authorisation of an inspector or above. • Once the authorised period in custody has expired, the person must be charged or released. • A person who is in custody and has been charged must be brought before the court on the first day the court is sitting after charge.

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• A person may be released on conditions on investigative liberation for up to twenty-eight days. • At the start of an investigation, the police may question anyone with a view to acquiring information that may lead to the detection of the criminal. • Once suspicion has centred upon a particular person, further interrogation of the person is dangerous and might result in the evidence being excluded. • The test applied is whether the questioning was fair. • The Criminal Justice (Scotland) Act 2016 Chapter 4 regulates the interviewing of those in custody or at a police station voluntarily. • A person in custody has a right to an interview with a solicitor at any time. • The right to question is without prejudice to the law on admissibility of answers, so the suspect is not (generally) obliged to answer and the test continues to be fairness. • Interviews are recorded. • A person is officially accused when they are charged by the police or when the prosecutor initiates proceedings against them. • Questioning after charge about the crime which is the subject of the charge is impermissible except with the authorisation of the court. • It is not lawful for a constable to search a person who is not in police custody except: in accordance with a statutory power of search; or under a warrant granted by a court • The Criminal Procedure (Scotland) Act 1995 section 18 empowers the police to take samples (prints, swabs, clippings, etc.) from external parts of the body. • More invasive samples need a warrant from a court. • Many Acts of Parliament confer a power of search of property. • In addition, the procurator fiscal is always entitled to apply at common law for a search warrant. • Ex facie valid warrants can only be challenged by bill of suspension. • A search which goes outside the scope of the warrant is irregular. • Covert investigative techniques require authorisation under the Regulation of Investigatory Powers Acts. • The Criminal Procedure (Scotland) Act 1995 section 267B empowers the court to make an order requiring a person to participate in an identification parade.

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Chapter five

Petition Procedure

Solemn procedure usually starts with a document called the ‘petition’. The statutory recognition for this comes in section 34 of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act), which provides that a petition for a warrant to arrest and commit a person suspected of or charged with a crime may be in the forms specified. When the person alleged to have offended is not in police custody, that application is presented to a sheriff in chambers. More often, the person has been arrested and charged by the police and is being brought before the court in terms of section 21 of the Criminal Justice (Scotland) Act 2016 (the 2016 Act).1 In that situation, the petition is presented to and (unless it is patently defective in some fundamental way) granted by the sheriff on the bench. It is competent, though uncommon, to raise an indictment without any prior petition. An attempt was made to argue the contrary in O’Reilly v HM Advocate2 but the Appeal Court gave this short shrift. They did, however, point out the effect of a petition, saying: ‘a petition is required in order to obtain from the court a variety of orders, such as an order for the accused to be committed or for warrants of one kind or another to be granted. Normally the prosecutor will wish to obtain such things from the court and so it is in his interests to have a petition in the appropriate form served on the accused. This is the normal procedure but if it is not followed and no petition is served it does not mean that the Lord Advocate cannot indict. What it does mean is that the accused cannot be committed or arrested on warrant or have his property searched, because court orders authorising such things cannot be obtained in the absence of a petition which brings the accused before the court’.

The court might have qualified this last sentence because, as we have seen, search warrants can be obtained other than as an ancillary to petition. Their point, however, was that a petition is a package. Petition procedure 1

See p. 36 above. 1984 SCCR 352.

2

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is dealt with in the 1995 Act Part IV. To deal with it here means departing from the order of the 1995 Act, because Part III of the Act deals with bail. However, that subject makes much better sense once petition procedure is understood. In the petition the procurator fiscal informs the court that ‘from information received’ by him or her ‘it appears, and s/he accordingly charges’ that the accused person named committed a particular offence or offences. The petition goes on to ask the court, amongst other things: (a) to grant warrant to search for and apprehend the accused – in short, to arrest them; (b) to imprison the accused either for further examination or until liberated in due course of law; (c) to search the person and property of the accused; and (d) to grant warrant to cite witnesses for precognition. Most of these will only be of significance if the accused is not yet in custody for the offence but the warrant to imprison the accused will be significant in all cases. The accused’s appearance to answer the petition is in private. It used to take place in the sheriff’s chambers but the invariable – or almost invariable – practice now is that it takes place in a closed courtroom which is regarded as chambers. A copy of the petition will have been handed to the accused in the cells. The accused and their solicitor are entitled to an interview in private before the accused appears before the sheriff, in terms of the 1995 Act section 17(2). Procedure in relation to appearance on petition bears the marks of its history. At a time when the investigation was in the hands of the sheriff, the appearance on petition was the occasion on which the accused was examined as to his or her account of the events relevant to the offence and they were entitled to make a declaration. That declaration would in due course be part of the evidence at trial and, since the accused was at one time not allowed to give evidence at the trial, the declaration was the accused’s only chance to give their side of the story. Once the accused became a competent witness at their own trial, it became rare, though not entirely unknown, for the accused to make a declaration. The right to do so was abolished by section 78 of the 2016 Act (as was the procedure known as ‘judicial examination’, which need not be described further). After the sheriff clerk has asked the accused to confirm their identity it is usual for the accused’s solicitor to say that their client makes ‘no plea’ and the sheriff then looks to the procurator fiscal to hear what motion the Crown makes. The procurator fiscal may either seek the committal of the accused for

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further examination (in custody or on bail) or seek full committal (in custody or on bail). Although it is competent for the Crown to ask for full committal on first appearance, for them to do so is now so rare as to be almost unknown. Full committal is committal for trial. In times past the sheriff would at this stage be shown the ‘precognition’, which is the volume of statements taken by the Crown. That practice fell out of use a long time ago and modern practice is that the procurator fiscal, by moving for full committal, is in effect saying to the sheriff that they are satisfied that there is a prima facie case, at least on paper. Provided that the petition contains a relevant charge the sheriff will almost always order full committal without further enquiry, though the sheriff does retain the jurisdiction to refuse to do so. The few occasions where this happens are cases where the sheriff considers that in the particular circumstances the motion is oppressive or frankly incompetent. So, for example, in Normand v McQuillan3 a sheriff refused full committal in a case in which the Crown substituted a petition for a summary complaint a fortnight after the accused had been remanded in custody to a await trial on that complaint. This the sheriff regarded as oppressive in the circumstances. In refusing the motion for full committal the sheriff rejected an argument by the procurator fiscal that it is incompetent for the defence to challenge the competency of a petition, observing: ‘For present purposes I am satisfied that complaints of unfairness and oppression can be entertained by the court at any stage of the prosecution procedure. The prevention of such ills must surely be a primary justification for the presence of a judge.’

An example – perhaps the only example – of refusal of a motion to commit as frankly incompetent is to be found in Herron v A, B, C and D4 in which the sheriff noticed that the time limit between committal for further examination and full committal had been exceeded. The judgment is worth reading for its description of just how far things can go wrong when all parties assume that the fact that sheriffs scarcely ever refuse full committal means that it is no more than an administrative rubber stamp. It should be understood that refusal of a motion to commit does not prevent the Crown from subsequently serving an indictment and proceeding to trial.

Committal for further examination Committal for further examination is a transitional stage. In theory, it is used where the Crown do not yet consider that they are in a position to 3

1987 SCCR 440. 1977 SLT (Sh Ct) 24.

4

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take the responsibility for full committal. It may be that they are working from a summary of the evidence and want to see the full statements that the police have taken; or they may expect that there are further charges to come; or they may consider that further enquiries are necessary to provide a sufficiency of evidence. In practice, it is always the motion made by procurators fiscal on the first appearance of an accused person on petition. Committal for further examination happens only once. If the accused is granted bail at committal for further examination, it operates for practical purposes as full committal as a result of the 1995 Act section 23(3). Where the accused is kept in custody they must be brought back to court for full committal. The period within which that must be done depends on an understanding of the Criminal Procedure Act 1701 which provides, inter alia, ‘[a]nd farder Discharges all closs imprisonments beyond the space of Eight dayes from the commitment’. Sheriff Macphail (as he then was5) analysed the effect of this in Herron v A, B, C and D and the Appeal Court approved his reasoning in Dunbar, Petitioner.6 The effect is that no longer than eight days may elapse between committal for further examination and full committal but neither of the days on which one of these committals takes place counts towards that total. Accordingly, an accused who is committed for further examination on a Monday, if they are to be fully committed must be so committed on the Wednesday of the following week at the very latest. If the Monday is the first of the month, the Wednesday on which full committal takes place will be the tenth.

Chapter overview • Solemn procedure usually starts with the ‘petition’. • The accused appears in court in private. • The procurator fiscal (usually) moves for committal for further examination, either in custody or on bail. • The accused is brought back to court after not more than eight days. • The procurator fiscal can then move for full committal, that is, committal for trial.

5

Later Lord Macphail. 1986 SCCR 602.

6

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Chapter six

Bail

Bail applications When the accused first appears in court, one question which will be prominent in their mind is whether they are going to get bail – that is, to be liberated pending trial. Part III of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) deals with bail. By contrast with former procedure, all crimes and offences are now bailable.1 The procedural starting point is section 22A, which imposes a duty on the court before which an accused is first brought to give the accused and the prosecutor an opportunity to be heard and then either admit or refuse to admit the person to bail. The court is required to take the initiative in this and not to wait for the accused to apply for bail. If that is not done within twenty-four hours of first appearance, the accused is entitled to be liberated. On subsequent appearances in court, by section 23(1), any person accused on petition of a crime is entitled to apply to the sheriff for bail. The prosecutor is entitled to be heard against that application. By subsection (2), the sheriff is entitled in his or her discretion to refuse the application. By section 23(4) and (5) of the 1995 Act bail may be sought after full committal even if it has been refused at committal for further examination. Under summary procedure, by section 23(6), any judge having jurisdiction to try the offence (in other words, sheriffs and JPs) may, at their discretion, on the application of the accused and after giving the prosecutor an opportunity to be heard, admit or refuse to admit the accused to bail. Subsection (7) requires bail applications under subsection (5) or (6) be dealt with within twenty-four hours after presentation to the judge, failing which the accused must be liberated forthwith. In Gibbons, Petitioner2 an application lodged at 11.30am one day was, for administrative reasons, not dealt with until 11.50am the following day, when it was refused. It 1

Criminal Procedure (Scotland) Act 1995 s. 24(1). 1988 SCCR 270.

2

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was held that the time limit is mandatory and the release of the accused was ordered.

Relevant considerations The framework for the court’s consideration of bail applications is set out in sections 23B–23D of the 1995 Act. It used to be that, where the Crown consented to bail, the bail application would always be granted. Now, it is provided explicitly by section 23B(5) that the attitude of the prosecutor does not restrict the court’s exercise of its discretion and section 23B(6) gives the court power to request the prosecutor, or the defence solicitor (or counsel) to provide information relevant to the question (which usually means a copy of any schedule of previous convictions). In practice, sheriffs do not often investigate whether to refuse bail where the prosecutor has not opposed it. The starting point for consideration, by section 23B(1), is that bail is to be granted except where, by reference to section 23C and having regard to the public interest, there is a good reason for refusing bail. The 1995 Act gives little guidance about the public interest aspect of these criteria. Section 23B(3) states that it includes reference to the interests of public safety, though that might have been regarded as self-evident. Section 23C, however, sets out a list of grounds which constitute ‘good reason for refusing bail’. They are as follows. The risk in each case must be ‘substantial’: (a) the person might abscond or fail to appear at court; (b) a risk that the person will commit further offences whilst on bail; and (c) a risk that the person will interfere with witnesses or otherwise obstruct the course of justice. To these, the 1995 Act adds: (d) ‘any other substantial factor which appears to the court to justify keeping the person in custody’. This last consideration is, as expressed, singularly unilluminating but there are two sources of help. The first is that, in Burn, Petitioner,3 the Lord Justice-General (Rodger) pointed out that: ‘the Crown must provide sufficient general information relating to the particular case to allow the sheriff to consider the merits of their motion that 3

2000 SCCR 384.

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the accused should be committed to prison and detained there . . . where, for example, the Crown oppose bail on the ground of the risk that the accused would interfere with witnesses, the procurator fiscal depute should be in a position to explain the basis for that fear’.

The context for that was consideration of what will be required to justify refusal of bail at committal for further examination but the requirement for the Crown to provide information does not depend on that context. It is suggested, too, that the proposition that the procurator fiscal should be in a position to explain the basis for the fear expressed goes wider than the situation in which it is said that the accused will interfere with witnesses. Burn was decided several years before sections 23B–23D were enacted but it is suggested that the principle holds good. The mere ipse dixit of the Crown is not enough to establish any of the section 23C(1) factors, including the enigmatic ‘any other substantial factor’. The second source of help comes in section 23C(2), which provides that the court must have regard to all material considerations ‘including . . . the following examples’, which at least gives some sort of framework for understanding what is meant by ‘any other substantial factor’: (a) the nature of the offences before the court and the probable disposal of the case (i.e. sentence) if the person was convicted of the offences; (b) whether the person was subject to a bail order when the offences are alleged to have been committed; (c) whether the offences are alleged to have been committed while the person was subject to another court order, on license or parole or subject to a deferred sentence; (d) the character and antecedents of the person, including the nature of any previous convictions, whether they have previously contravened a bail order or other court order, whether they have previously breached the terms of a release on licence or parole and whether they have recently served a sentence of imprisonment in connection with any of these things; and (e) the ‘associations and community ties’ of the person. The reference to associations and community ties is not a legislative expression of the proverb that those who ‘flee wi’ the craws will be shot wi’ the craws’. Rather, it is a reference to Letellier v France4 and to Maznetter v Austria5 4

(1992) EHRR 83. (1979–80) 1 EHRR 198.

5

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in which the European Court of Human Rights pointed out that the danger of a person absconding will vary with the strength of their ties with the jurisdiction and that the court should consider financial guarantees (such as money bail, which will be discussed shortly) as a means of offsetting the risk. Section 23D makes special provision where the applicant for bail is charged under solemn procedure with a violent or sexual offence, drug trafficking or domestic abuse (defined as an offence under section 1(1) of the Domestic Abuse (Scotland) Act 2018, or an offence that is aggravated as described in section 1(1)(a) of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016) and has a previous conviction on indictment for an offence of that sort. In those cases, the section provides that the person ‘is to be granted bail . . . only if there are exceptional circumstances justifying bail’. In M v Watson,6 Lord Brodie had to consider the meaning of this. He reasoned that persons having previous convictions on indictment for these sorts of offences will not normally be granted bail if charged with a new offence of that sort. Accordingly, if, having regard to all the relevant facts, they are admitted to bail, the circumstances will indeed be ‘exceptional’, in the sense that the norm has been departed from. The court must assess all the information before it with a view to determining whether there is good reason for refusing bail having regard to the relevant risks and the relevant level of these risks as identified in section 23C. In every case, if bail is to be refused, good reason must shown for the refusal. In enacting section 23D of the 1995 Act Parliament has reminded the court of the risks normally attendant upon the grant of bail to whom the section applies.

Conditions By the 1995 Act section 24(4) and (5) the court in granting bail must impose the ‘standard conditions’ of bail. These are7: • that the accused appears at the appointed time at every diet in the case of which they are given due notice; • that they do not commit an offence whilst on bail; • that they do not interfere with witnesses or otherwise obstruct the course of justice; 6

2009 SCCR 847. The 1995 Act also includes standard conditions requiring the accused to participate in an identification parade and to allow prints, impressions and samples to be taken. Those conditions were held to be incompatible with ECHR and, hence, not law, in Cameron v Cottam (No. 1) 2013 JC 12.

7

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• that they do not behave in a manner which causes, or is likely to cause, alarm or distress to witnesses; • that they make themselves available for interview for reports to assist the court in dealing with them for the offence; and • that where the offence is a sexual offence listed in section 288C (effectively, all sexual offences) they do not try to obtain a precognition or statement from the complainer except through their solicitor. The court must also impose such conditions as it considers necessary to ensure that the standard conditions are observed. It is very common for procurators fiscal to ask for special conditions to stay away from a particular person or place. Such conditions are clearly competent; but it is also very common for the Crown to be unable to explain why, in the particular case, they are necessary to secure compliance with the standard conditions of bail. Another condition that is sought quite frequently is a ‘curfew’ condition, in terms of which the accused must be within his or her domicile of citation – the bail address – between particular times every day. Such a condition is lawful. It is suggested, however, that defence solicitors should not be too willing to agree to such a condition, especially where the accused is appearing on petition. It is difficult to distinguish such a condition from a restriction of liberty order, which is an order made after conviction, as a direct alternative to imprisonment, for a maximum of twelve months.8 As a bail condition, a ‘curfew’ is imposed on someone who is entitled to be presumed to be innocent and, if the proceedings are under solemn procedure, it might subsist for twelve months or even longer.9 A person subject to such a condition is effectively being made to serve the maximum restriction of liberty order without being convicted. Moreover, the court that ultimately sentences the accused in the event of conviction is not required to take it into account that he or she was subject to a curfew other than in exceptional circumstances involving being subject to a curfew for an unusually long period of time.10 It is suggested that such a curfew requirement needs the clearest possible justification. By section 24(6), except where bail is being granted because the prosecutor has missed one of the custody time limits discussed in the next chapter, a requirement for money bail to be lodged may be made where that is appropriate to the ‘special circumstances’ of the case. That might arise where 8

See p. 252. See p. 80 on time limits under solemn procedure. 10 McGill v HM Advocate 2014 SCCR 46. 9

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the court is concerned about a lack of associations and community ties but considers that the lack may be offset by money bail. There is an example in Urquhart, Petitioner11 in which the accused person was a French citizen and he was required to lodge money in Euros. Section 29 provides for forfeiture of the money where there is a breach of bail conditions. Section 27 of the 1995 Act creates offences in relation to breach of bail conditions. These are substantive offences rather than matters of evidence or procedure and are therefore not dealt with in this book. A bail order will continue in force until the disposal of the case in relation to which it was made unless it is actually recalled. In particular, if the trial is adjourned in the absence of the accused that does not cause the bail order to fall.12

Domicile of citation When someone is released on bail by the court, the bail order specifies an address within the UK as their ‘domicile of citation’.13 The purpose of a domicile of citation is to provide an address at which documents can be served effectively.14 It is not a condition of bail that the accused shall actually reside there but the clear intention of the legislation is that it will be their normal place of residence. Section 25(2B) provides that, where the domicile of citation ceases to be the accused’s normal place of residence, they must make an application to alter the address within seven days. That application is made in writing in terms of section 25(2) and the procedure is set out in rule 4.1 of the Act of Adjournal (Criminal Procedure Rules) 1996 (the Criminal Procedure Rules). It does not involve a hearing in court unless the procurator fiscal notifies the clerk of court that the Crown opposes the application. It is common but incorrect for solicitors to take advantage of the case calling for some other purpose to make an oral motion to the court to change the domicile of citation. Dealing with the matter in that way deprives the Crown of the chance to check the address. It is also common, and also incorrect, to use the bail review procedure to apply to change the domicile of citation. That procedure is intended for questions relating to bail conditions or to whether bail is to be granted or revoked. It always involves the application calling in court and, for a change of domicile of citation that is not opposed, that is wasteful. 11

2003 GWD 26–735. Walker v Lockhart 1993 SCCR 148. 13 1995 Act s. 25(1). 14 See, for example, the provisions about service of indictments in s. 66(4) and (4ZA) of the 1995 Act. 12

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Bail appeals Section 32 of the 1995 Act grants rights of appeal to both the accused and the prosecutor, both as to the decision allowing or refusing bail and as to the amount of bail fixed (if any). However, section 24(7)(b) provides that any reference to the amount of bail fixed is to be construed as a reference to conditions. So section 32 does not actually mean what it says. It means that an appeal can be taken both as to the decision allowing or refusing bail and also as to conditions. Marking and intimation The marking of a bail appeal is not subject to any time limit, though for obvious reasons it is usually (and, in the case of a prosecution appeal, always) done at once upon the court of first instance making the order which it is desired to review. In the case of the prosecutor, there will be a desire on the part of the authorities to get the benefit of that part of section 32(2) of the 1995 Act which provides that the accused ‘shall not be liberated . . . until the appeal by the prosecutor is disposed of . . . ’. In the case of the accused there will be a compelling desire to secure their liberty as soon as that can be accomplished. In either event, the 1995 Act section 32(3) requires that written notice of appeal is to be immediately given to the opposite party by the party appealing. This is probably of more practical importance in the case of a defence appeal, which might not be marked immediately, than in the case of a prosecution appeal, where the reason for the continued incarceration of the accused will quickly become apparent to their advisers even if they do not see the procurator fiscal physically marking the appeal. Nevertheless, the provision is mandatory and ensures that the opponent has the chance to prepare for the appeal, which, by the 1995 Act section 32(7) must be heard within seventy-two hours (Sundays and public holidays do not count) in terms of subsection (8). If this time limit is not met, the accused is to be liberated. Section 32(4) makes provision about the hearing of bail appeals. Where the decision about bail was taken in the High Court or the Sheriff Appeal Court, the bail appeal will be dealt with by the High Court. In all other cases, it is dealt with by a single judge of the Sheriff Appeal Court.

Bail reviews At the instance of the accused, any court can review its own decision on bail or on bail conditions in terms of the 1995 Act section 30. A material change in circumstances, or material information that was not available when the decision was made, is required. What is clear is that, where there has been a bail appeal, the court of first instance cannot review the

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decision taken by the appellate court. In HM Advocate v Jones15 a sheriff refused to entertain a motion to review bail where the case had been the subject of a bail appeal, holding that any review would have to proceed in the High Court. This decision was approved by Lord Cameron in Ward v HM Advocate,16 with the proviso that the court of first instance can review other elements of the bail order, such as conditions, which were not at issue in the High Court. In Russell v HM Advocate17 the Appeal Court reviewed these cases and held that, where there has been an unsuccessful bail appeal, review remains competent in the first instance court. All that the appellate court has done is to affirm the decision of the first instance court. However, where a bail appeal has been successful, so that the matter to be reviewed is part of the decision of the appellate court, it has substituted its own decision for that of the first instance court and review is only competent in the appellate court. In HM Advocate v Abid, HM Advocate v Hayat,18 the Appeal Court held that the extension of the custody time limit19 is not, by itself, a material change in circumstances such as to engage the operation of section 30. By the 1995 Act section 31 the prosecutor has an equivalent right to seek review of a court’s decision to grant bail but this is limited explicitly to those cases where the prosecutor puts before the court ‘material information’ which was not available to it when it granted bail. The procedure is by application to the court and, by subsection (2), on receipt of such an application, the court must do three things. First, it must intimate the application to the person granted bail; secondly, it must fix a diet for hearing the application and cite the person on bail to attend that diet; and, thirdly, ‘where it considers that the interests of justice so require’ it must grant warrant to arrest that person. On hearing an application the court may, by subsection (3), either withdraw the grant of bail and remand the person in custody or may grant bail, or continue the grant of bail, varying the conditions if it sees fit.

Bail appeal after conviction The accused who has been convicted, made the subject of a deferred sentence and remanded in custody, or on bail with conditions which they find unacceptable, has a right of appeal in terms of the 1995 Act section 201(4). 15

1964 SLT (Sh Ct) 50. 1972 SLT (N) 22. 17 [2021] HCJAC 24. 18 2020 SCCR 12. 19 See p. 83. 16

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The prosecutor has no equivalent right to appeal against the liberation of a person on deferred sentence. An appeal by an accused person under this provision can only be marked within twenty-four hours of the remand and is by note of appeal presented to the Sheriff Appeal Court (against a decision of a sheriff) or to the High Court (against a decision taken by a High Court judge). In Long v HM Advocate20 the accused, upon whom sentence had been deferred in custody for reports had, for reasons which are not disclosed, not marked a bail appeal within the twenty-four hours allowed. An attempt was made to operate the bail review provisions instead but Lord Justice-Clerk Wheatley held that they apply only to pre-trial procedure and have no application to the accused after conviction.

Chapter overview • A court before which an accused person is first brought must consider the question of bail. • On any subsequent appearance in court, an accused person is entitled to apply for bail. • By section 23B of the Criminal Procedure (Scotland) Act 1995, bail is to be granted except where, by reference to section 23C and to the public interest, there is good reason for refusal. • Section 23C of the Criminal Procedure (Scotland) Act 1995 sets out the grounds for refusing bail: Substantial risk that the person might abscond or fail to appear at court. Substantial risk that the person will commit further offences whilst on bail. Substantial risk that the person will interfere with witnesses or otherwise obstruct the course of justice. Any other substantial factor which appears to the court to justify keeping the person in custody. • Section 23C also provides that, in considering the grounds for refusal of bail, the court must have regard to all material considerations, including: the nature of the offences and the probable disposal of the case if the person was convicted of the offences; whether the person was subject to a bail order when the offences are alleged to have been committed; whether the offences are alleged to have been committed while the person was subject to another court order, on license or parole or subject to a deferred sentence; 20

1984 SCCR 161.

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78 Criminal Evidence and Procedure: An Introduction

•

•

• • • • •

•

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the character and antecedents of the person, including the nature of any previous convictions, whether they have previously contravened a bail order or other court order, whether they have previously breached the terms of a release on licence or parole and whether they have recently served a sentence of imprisonment in connection with any of these things; the ‘associations and community ties’ of the person. Section 23D of the Criminal Procedure (Scotland) Act 1995 provides that, where the applicant for bail is charged under solemn procedure with a violent or sexual offence, drug trafficking or domestic abuse and has a previous conviction on indictment for such an offence, they are to be granted bail only if there are exceptional circumstances. When bail is granted, it is on standard conditions: that the accused appears at the appointed time at every diet in the case of which they are given due notice; that they do not commit an offence whilst on bail; that they do not interfere with witnesses or otherwise obstruct the course of justice; that they do not behave in a manner which causes, or is likely to cause, alarm or distress to witnesses; that they make themselves available for interview for reports to assist the court in dealing with them for the offence; and that where the offence is a sexual offence listed in section 288C (effectively, all sexual offences) they do not try to obtain a precognition or statement from the complainer except through their solicitor. The court also has the power to impose special conditions where those are necessary to ensure that the standard conditions of bail are observed. Breach of a bail condition is an offence. A bail order will specify the domicile of citation, at which documents can be served. The accused and the prosecutor both have a right of appeal in relation to bail. At the instance of the accused, where there has been a material change in circumstances or there is information that was not before the court when the decision about bail was made, the court can review the decision about bail. At the instance of the prosecutor, where there is material information not before the court when it granted bail, the court can review its decision to grant bail.

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Chapter seven

Solemn Proceedings from Petition to Preliminary Hearing or First Diet

Introduction When the first edition of this book was published,1 the trial diet was the focus of solemn criminal procedure. Obviously, the trial remains important. It is, after all, at the trial that the evidence is led, the facts are determined and the verdict decided. However, since that first edition there has been an increasing and determined move to ‘front load’ matters, so that as much as possible is decided before the trial. Procedurally, the pivotal point in a criminal case is now the first diet in the sheriff court or the preliminary hearing in the High Court and that has resulted in a shift in emphasis in the book. In this chapter, we shall consider the considerable range of matters which have to be attended to before the trial starts. In HM Advocate v Forrester2 Lord Bracadale made it clear that the intention of the legislation is that, in the High Court, the preliminary hearing is the end point of preparation, not its starting point. That is equally true in the sheriff court. The objective of the preliminary hearing or first diet was explained by Lord Mackay of Drumadoon in Atkinson v HM Advocate3: ‘judges and sheriffs who preside over trial courts in solemn proceedings are entitled to expect that full use will be made of the statutory procedures provided for in secs 71(2) and 72(3) and (6)(b)(i) of the Criminal Procedure (Scotland) Act 1995. Those provisions enable many objections to the admissibility of evidence to be determined in advance of trial diets, thereby minimising the inconvenience to witnesses and jurors, as well as serving the legitimate interests of the prosecution and the defence’.

Lord Carloway made the same point in Murphy v HM Advocate.4 1

1996. 2007 SCCR 216. 3 2011 JC 57. 4 2012 SCCR 542. 2

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80 Criminal Evidence and Procedure: An Introduction

What all of this means is that, by the time the preliminary hearing or first diet is reached, the parties ought to be fully prepared. The court ought to be in a position to take decisions in relation to any preliminary matters which arise and to fix a date for trial in the expectation that the trial will be able to start on that date without any further preliminary matters needing to be resolved and to run without interruption to deal with objections to the admissibility of evidence that could have been dealt with perfectly well before the trial began. The Criminal Procedure (Scotland) Act 1995 (the 1995 Act) therefore makes a series of requirements of the parties in relation to the preparation and progress of the case. Most of those requirements have a timescale attached and some of them are triggered by action by the other party. It is important to understand that the system is designed to work properly and fairly in the interests of both parties and the public when the various requirements are fulfilled, on time. They are not arbitrary and it cannot be assumed that the court will relieve a party of the consequences of failure to comply. A failure by one party to fulfil a requirement within the prescribed timescale will, therefore, often have consequences for the procedure as a whole and might mean that the party in default is not able to pursue some particular approach. For example, if the Crown misses a time limit it can mean that a particular chapter of evidence cannot be led or even that the prosecution cannot be pursued any further at all. If the defence misses a time limit it can mean that an objection to the admissibility of evidence cannot be taken or even that a particular line of defence will be excluded altogether. We shall see examples of all of these things in the chapters which follow. When the 1995 Act provides that, after the expiry of a time limit, a step can only be taken with leave of the court, on cause shown, it means what it says.

Crown preparation Time limits It has for centuries been a feature of solemn procedure in Scots law that the prosecutor does not have unlimited time to serve the indictment and bring the case to trial. Section 65 of the 1995 Act sets out particular time limits, the purpose of which is: ‘to require the Crown to proceed with deliberate expedition in cases where the circumstances are serious enough to warrant procedure on indictment and/or the detention of the accused in custody awaiting trial’.5 5

Gardner v Lees 1996 SCCR 168.

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In reading the case law about the time limits, it should be kept in mind that, although the older cases remain useful in setting out the approach which the courts will take to time limits, the actual limits specified and the consequences of missing them have been changed on a number of occasions. The time limits now applicable are as follows. Accused in custody – service of indictment If the accused is in custody, the indictment must be served within eighty days of full committal, failing which they are entitled to be admitted to bail.6 Failure to meet this time limit does not affect the validity of the indictment.7 The period may be extended on cause shown8 and in Farrell v HM Advocate9 it was held that it is competent to grant such an extension retrospectively, though the Lord Justice-General (Emslie) said that a court is faced with a retrospective application for extension might well look for very powerful reasons in support of the application before deciding to grant it. Accused in custody – preliminary hearing or first diet If the accused is in custody, the preliminary hearing or first diet must commence within 110 days of full committal; and the trial must start within 140 days of full committal. Failing compliance with either of these time limits, the accused is entitled to be admitted to bail.10 These periods may be extended on cause shown.11 HM Advocate v Meechan12 decides that any period during which the accused is serving a substantive sentence for another offence does not count towards these custody time limits. So, in Wallace v HM Advocate13 where an accused was, after full committal, sentenced to two years’ imprisonment on another charge it was held that the running of the custody time limit was interrupted when the accused began his sentence of two years imprisonment, as his detention after that date was not referable to the committal order. It was

6

1995 Act s. 65(4)(a). McCluskey v HM Advocate 1992 SCCR 920. 8 1995 Act s. 65(5). 9 1984 SCCR 301. 10 1995 Act s. 65(4)(aa) and (b). 11 1995 Act s. 65(5). 12 1967 SLT (Notes) 75. 13 1959 JC 71. 7

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82 Criminal Evidence and Procedure: An Introduction

decided in Bickerstaff v HM Advocate14 that a period during which the accused is confined compulsorily in a hospital as being insane in bar of trial does not count towards the time limit. The relevant concept is now unfitness for trial in terms of section 53F of the 1995 Act. HM Advocate v McCann15 establishes that the release of accused from custody, on the authority of the prosecutor, at any point during their incarceration interrupts the running of the time limit.16 All cases – preliminary hearing or first diet Whether the accused is in custody or on bail, the preliminary hearing or first diet must in any event commence within eleven months of first appearance on petition17 and the trial must start within twelve months of the first appearance of the accused on petition,18 not including the date on which that appearance on petition took place.19 These periods may also be extended on cause shown,20 including retrospectively.21 If these time limits are missed and not extended, the prosecution cannot proceed further on indictment,22 though service of a summary complaint is possible. It is important to note that, unlike the 110-day period (which runs from full committal), the eleven and twelve-month periods run from first appearance on petition at which, of course, the accused might have been committed for further examination, with full committal happening only (about) eight days later. There is an exception to the eleven and twelve-month time limits in the case of an accused for whose arrest a warrant has been granted for failure to appear at a diet in the case.23 Parliament did not intend to provide an 14

1926 JC 65. 1977 SLT (Notes) 19. 16 In reading the cases on these time limits, it helps to remember that until 2004 the 110 day period applied in both the High Court and the sheriff court and the result of a failure to meet the time limit (as extended, if that happened) was that the accused was entitled to be liberated forthwith and thereafter he was to be ‘forever free from all question or process for that offence’. In other words, missing the time limit operated as an absolute bar on further prosecution of the particular accused for the crime in question. That is no longer the case. 17 1995 Act s. 65(1)(a) and (aa). 18 1995 Act s. 65(1)(b). 19 McCulloch v HM Advocate 1995 SLT 918. 20 1995 Act s. 65(3). 21 HM Advocate v M 1986 SCCR 624. 22 1995 Act s. 65(1A). 23 1995 Act s. 65(2). 15

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encouragement for accused persons to abscond in the hope that if they could stay at large for over a year they could thus obtain immunity from prosecution. All cases – service of indictment A notice must be served with the indictment calling upon the accused to appear at a first diet or preliminary hearing not less than twenty-nine clear days after service.24 There is no provision for the court to permit a shorter period, though it is open to the defence to waive any failure to comply by simply not challenging the validity of citation. Extensions No definitive test is laid down in the 1995 Act for extensions to the time limits but some assistance may be gained from the cases. The most important of these is HM Advocate v Swift,25 in which the Lord Justice-General (Emslie) explained that a judge faced with an application for an extension of the time limit should consider two questions: ‘the first question for the judge concerned is . . . “Has a sufficient reason been shown which might justify the grant of an extension?” The second question is: “Ought I, in the exercise of my discretion in all the relevant circumstances of the case, to grant the extension for that reason?”’

The court must be satisfied in relation to each leg of the test and cannot treat either of the.m as a matter of concession.26 Nor can it be assumed that, it being established that the first leg is satisfied, the court will necessarily grant applications for extension. In Nichol v HM Advocate,27 the Lord Justice-Clerk (Carloway) said that when the Crown elects to put an accused on petition, it does so in the knowledge that that starts the clock running. He added that the Crown is free to indict at any time during the ensuing year; but if it should indict ‘up to the wire’, it must recognise that unforeseen circumstances may necessitate an application for an extension, in which success is by no means certain. ‘Extensions under section 65 are,’ he said, ‘not there for the asking’. In Swift, the Crown twice made a mistake as to the accused’s domicile of citation and left service copy indictments at an address which the accused

24

1995 Act s. 66(6). 1984 SCCR 216. 26 HMA v Cowan 2017 SCCR 526. 27 2012 SCCR 448. 25

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84 Criminal Evidence and Procedure: An Introduction

had long since left and which had never been his domicile of citation. These indictments were, accordingly, never served and the Crown discovered its error too late to serve a new indictment within the time limit. An application was made for an extension but the sheriff refused it and the Crown appealed unsuccessfully. The Appeal Court did not exclude the possibility of an extension even though the Crown may have been at fault but Lord Justice-General Emslie did say that ‘any particular fault on the part of the prosecutor and its nature and degree will be relevant considerations’. In this case there was considerable and inexcusable fault and the court did not consider that the seriousness of the charges was enough to override that28. However, in HM Advocate v Richards,29 the Appeal Court excused an error in terms of which the person preparing a new indictment failed to reflect a change in the identity of the Lord Advocate since an earlier indictment in the same case had been prepared. The court disapproved of the distinction drawn in Swift between major errors and minor errors and was also influenced by the fact that, although the defence noticed the mistake at once, they deliberately chose not to take the point as the preliminary issue it truly was until after the time limit had expired and the Crown could not reindict. The Crown is, of course, quite likely to get an extension if the delay in bringing the case to trial is attributable to the defence. For examples, see HM Advocate v Brown30 and Duffy v HM Advocate.31 Precognition on authority of petition warrant After full committal, the procurator fiscal prepares the Crown case. That used to mean that, in all petition cases, they ‘precognosced’ witnesses. The witnesses were required to attend the procurator fiscal’s office and were interviewed in private by the procurator fiscal, a procurator fiscal depute or a precognition officer (who was a paralegal). The result of such an interview is a document known as a ‘precognition’. Done properly, it gives the prosecutor in court a reliable guide to what the witness is actually likely to say in the witness box. For a variety of reasons – some good, some less good – that sometimes differs significantly from what is contained in the statement taken by the police. Precognition hardly ever happens now in relation to cases clearly destined for trial in the sheriff court. Speaking in the Scottish Parliament in February 2021, the Lord Advocate said that precognition ‘is a long-standing, routine and essential feature of Crown practice in relation

28

For another example, see Lyle v HM Advocate 1991 SCCR 599. 2010 SCCR 843. 30 1984 SCCR 347. 31 1991 SCCR 685. 29

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to High Court cases. It provides assurance that there is a proper evidential basis for the indictment . . . ’.32 Notwithstanding that, it is understood that it is common for cases to be indicted into the High Court without precognition. Absent a precognition, the process of examination in chief can be something of a voyage of discovery for the person who prosecutes in court. A Crown precognition is not signed by the witness and is not usually shown to him. It is confidential to the Crown and (except in the case of applications at the instance of the Scottish Criminal Case Review Commission) that confidentiality can only be lifted by the court in cases of overwhelming necessity.33 It was made clear in Carmichael v B34 that a witness is not entitled to be accompanied by a solicitor when being precognosced and it has long been recognised that witnesses should not be precognosced in one anothers’ company.35 Certainly the representatives of the accused have no right to be present.36 Following completion of the Crown preparation, the whole case is reported to Crown Counsel, who decide the future course of the proceedings. Most fundamentally, they consider whether the state of the evidence is such that the case can and should proceed further. They determine whether the case is to remain under solemn procedure or be reduced to summary procedure by the procurator fiscal serving a summary complaint on the accused. In a case which remains under solemn procedure, they decide the charges that will appear on the indictment and they decide whether the case will be indicted in the High Court or in the sheriff court. Precognition on oath The High Court said in HM Advocate v Monson37 that it is every citizen’s duty to co-operate with the Crown in the precognition process. That, however, is a duty which is not attended by a sanction and it quite often happened that a witness would fail to attend for precognition. In that event the procurator fiscal might petition the court for warrant to cite the witness to attend for precognition on oath. This still happens occasionally. Where such a warrant is granted, the witness is required to attend court where he or she is questioned in the presence of a sheriff and what he or she says is transcribed and subsequently signed by the witness and the sheriff. 32

Scottish Parliament Official Report, 9 February 2021, 15:19. Donald v Hart (1844) 6D 1255; Scottish Criminal Cases Review Commission v HM Advocate 2000 SCCR 842. 34 1991 SCCR 715. 35 Hume ii. 82; Reid v Duff (1843) 5D 656. 36 Hume ii. 82. 37 (1893) 1 Adam 114 at 135. 33

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A person who is precognosced on oath cannot thereafter be prosecuted for the offence.38 Indeed Mowbray v Crowe39 seems to establish that it will be oppressive for the Crown to commence proceedings against a person who has been interviewed by the procurator fiscal at all in connection with a case. In that case the procurator fiscal was considering a report against the appellant and wrote inviting her to attend for a discussion about the case. During the discussion which took place the appellant disclosed her version of events. The procurator fiscal decided to prosecute. It seems that what the procurator fiscal had in mind was to give a warning if the appellant had admitted the offence. However, as the court pointed out, discussions with the accused are not normally undertaken when a warning is contemplated and, in a criminal justice system which is adversarial, the prosecutor and the accused are to be at arm’s length. The appellant had not been told that she could bring a solicitor to the interview. As one who had been cautioned and charged she could not have been interviewed by the police and it was equally wrong that she should have been interviewed by the procurator fiscal. The court took the view that there had been oppression and directed the JP court to sustain a plea in bar of trial.

Disclosure Prosecutor’s duty Since the passing of the Human Rights Act 1998 and the Convention rights provisions of the Scotland Act 1998, there has been a steady move towards disclosure of much more material by the Crown than occurred previously. Part 6 of the Criminal Justice and Licensing (Scotland) Act 2010 (the 2010 Act) makes detailed provision for a scheme of disclosure, based on (but not identical to) the recommendations made by Lord Coulsfield in the Review of the Law and Practice of Disclosure in Criminal Proceedings in Scotland, published in 2007. The essence of the arrangements is that, in terms of section 121 of the 2010 Act, where the accused appears for the first time on petition or on indictment or where a plea of not guilty is recorded on a summary complaint, the prosecutor must review all of the information that may be relevant to the case of which the prosecutor is aware and determine whether any of it would:

38

Alison ii. 138. 1993 SCCR 730.

39

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(a) materially weaken or undermine the prosecution case; (b) materially strengthen the accused’s case; or (c) be likely to form part of the prosecution case. If the information falls into any of these categories, the prosecutor must disclose the information to the defence, except that the prosecutor may apply to the court in terms of section 145 of the 2010 Act for an order preventing disclosure where there is a real risk of substantial harm or damage to the public interest and the fairness of the trial would not be compromised by non-disclosure. The disclosure requirement is limited to the matters specified in section 121 of the 2010 Act. There is no obligation on the prosecutor to disclose absolutely everything discovered during the course of an investigation. In McClymont v HM Advocate40 the Appeal Court rejected the proposition that, when a forensic examination is made of the memory and content of a mobile phone, everything found must be disclosed to the defence. It is important to understand that the disclosure obligation relates to information, not to productions.41 This was emphasised by the Lord JusticeClerk (Carloway) in HM Advocate v AM.42 He said that the object is to ensure that the defence know what evidence will form the case against the accused and what material is available to refute it. As to productions, the defence have an absolute right, in terms of section 68(2) of the 1995 Act, to see them in the office of the sheriff clerk but the disclosure regime does not entitle them to receive copies from the procurator fiscal. In AM, Lord Carloway went on to explain that, once the indictment is served, the productions ought to have be lodged with the Justiciary Office43 along with the record copy indictment. Whilst in modern practice the Crown may retain them until the diet of trial,44 it does so subject to any order of the court. If an accused wishes to remove any production from the custody of the court or Crown for the purposes of copying or inspection by an expert, they are entitled to apply to the trial court to do so. The court will thereafter decide, having regard to the principles of fairness, including equality of arms, whether it is in the interests of justice to grant the application.

40

[2020] HCJAC 1. See p. 106 for the law about what articles must be produced in evidence. 42 2016 SCCR 227. 43 Or sheriff clerk. 44 Usually because they can be left with the police, who have more storage space than clerks of court do. 41

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Defence statement A continuing duty to keep disclosure under review and to make disclosure of additional information to which section 121(3) applies is imposed on the Crown by section 123. That review should be informed, in due course, by the content of the defence statement which must be lodged in terms of section 70A of the 1995 Act. That is a statement which sets out the nature of the accused’s defence, any matters of fact on which the accused takes issue with the prosecution, particulars of any matters of fact on which the accused intends to rely, any point of law which the accused wishes to take, the nature of any information which the accused wishes the prosecutor to disclose and the reasons why that disclosure is considered to be necessary. Defence statements were not part of Lord Coulsfield’s recommendations and failure to lodge a statement does not carry a sanction. In practice, they are generally uninformative. However, failure to lodge a defence statement means that the defence cannot make an application to the court to rule (under section 128) on whether material is disclosable.45 Moreover, the court will not necessarily allow replacement of a bland and uninformative defence statement with something better so as to provide the foundation for a section 128 application. It was said in McCarthy v HM Advocate46 that the disclosure scheme presupposes that an accused will abide by its terms; that, for the system to operate as intended, defence representatives must lodge the requisite statement within the timescale provided; and that a later statement is only competent if it stems from a material change in circumstances. Duty of investigating agency The duty incumbent on the prosecutor is supported by a duty on the investigating agency to ‘inform the prosecutor of the existence of all the information that may be relevant to the case for or against the accused’ (section 119(2)). The discharge of all of these duties by the prosecutor and by the investigating agency should also be informed by the Code of Practice: Disclosure of Evidence in Criminal Proceedings made under section 164 of the 2010 Act. The prosecution is under no obligation to disclose to the defence material which they do not have, at least where there is no reason to think that it contains anything of relevance.47 Rulings about disclosure Where the accused has lodged a defence statement and considers that the prosecutor has failed, in responding to the statement, to disclose to the 45

And see Sinclair v HM Advocate 2016 SLT 444. 2021 SCCR 6. 47 Henderson v HM Advocate [2017] HCJAC 43. 46

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accused an item of information to which section 121(3) applies, the accused may apply to the court in terms of section 128 for a ruling on whether section 121(3) applies to the information in question. Provision is made for reviews and for appeal by sections 129 and 130.48 It is important to note two things about sections 128 applications. First, a section 128 ruling is declaratory in its nature. It is not an order to the prosecutor to disclose particular material and a court considering an application for a section 128 ruling does not have power to consider what is to be done about any subsequent failure to make disclosure. If the court rules that section 121(3) applies to an item of information and the prosecutor fails to disclose that item of information, the accused’s remedy is likely to be a plea in bar of trial and/or a minute raising a compatibility issue49 on the basis that, without the disclosure, the trial will be unfair and oppressive. If the prosecutor tries to rely on undisclosed material in the course of the trial, there might well be a sound objection to the admissibility of that evidence. Secondly, the focus of consideration in an application under section 128 is exclusively on whether one of the criteria specified in section 121(3) is met. The fact that the investigating agency or the prosecutor perceives a risk of harm or damage to the public interest tells the court nothing about whether a section 128 ruling ought to be made in relation to an item of information. If such a risk is perceived, and especially if it is perceived following a section 128 ruling that information is within the scope of section 121(3), the prosecutor’s remedy lies in an application for a section 145 order. A court which is considering an application for a section 128 ruling has no power to consider in that context the matters which are relevant to an application for a section 145 order and would misdirect itself if it took into account, in its decision about section 128, the possibility of a risk of harm or damage to the public interest. That possibility is properly for consideration on a section 145 application.

Defence precognition and identification parade It has been usual for the Crown to give the defence a provisional list of witnesses at an early stage so that they too can proceed to precognosce. Defence precognition has become less frequent and less comprehensive as a result of the Crown’s practice of providing copy statements and the Scottish Legal Aid Board’s consequent reluctance to fund defence precognition. Nevertheless, the right to precognosce remains. It should be noted that the defence cannot insist on tape recording the Crown witnesses and,

48

For detailed consideration of all of this, see Murphy v WTH 2016 SCCR 136. See p. 113.

49

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in the case of police officers at least, cannot insist on seeing the witnesses outwith the presence of more senior officers.50 Occasionally, the defence will wish to operate section 291 of the 1995 Act, which empowers a sheriff, on the application of the accused, to grant warrant to cite for precognition on oath any person who is alleged to be a witness in relation to any offence of which the accused has been charged. The test which the sheriff must apply is whether it is ‘reasonable’ to require such precognition on oath in the circumstances and it was held by sheriffs in Low v MacNeill51 and Cirignaco v Lockhart52 that the reasonableness test applies not merely to the requirement for a precognition – which could be satisfied in almost every case – but also to the requirement that it be given on oath. The reasoning was that the defence need to find out what Crown witnesses are going to say in evidence is catered for adequately by other existing law and practice, leaving the possibility of defence precognition on oath for ‘unusual and exceptional circumstances’. The defence might also wish to invoke section 290 of the 1995 Act which provides that, on the application of the accused, the sheriff may order that the prosecutor shall hold an identification parade. Three criteria must be satisfied, these being that the prosecutor has not already held such a parade, that the accused has requested them to do so but that the prosecutor has refused or unreasonably delayed and that the sheriff considers the application to be reasonable. Beattie v Hingston53 seems to have proceeded on the basis that the defence require to offer reasons why an identification parade is needed, though the correctness of that approach was not reasoned out in the case.

Plea of guilty before service of indictment (“section 76 letters”) At any time after they have appeared on petition, the accused can intimate in terms of the 1995 Act section 76 that they intend to plead guilty. The advantage to the accused in proceeding under section 76 is that they receive the maximum discount for a guilty plea in terms of section 196 of the 1995 Act.54 When done so, (unless an indictment has already been served) the accused will be served with an abbreviated form of indictment and a notice to appear at a diet of the appropriate court not less than four 50

Drummond, Petitioner 1998 SCCR 42. 1981 SCCR 243. 52 1995 SCCR 157. 53 1999 SLT 362. 54 See p. 241. 51

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clear days after the date of the notice. A section 76 indictment does not contain any list of witnesses or productions. The ‘appropriate court’ means either the High Court or the sheriff court where no indictment has been served or the court in which the case has been indicted if an indictment has already been served. The Code of Professional Conduct issued by the Faculty of Advocates states that an advocate should insist that instructions to plead guilty are recorded in writing. The Appeal Court said, in Crossan v HM Advocate55 that this is for the protection of the advocate. It is a sensible precaution for a solicitor to take too. At the section 76 diet if the accused does in fact plead guilty, he will be sentenced on that basis. Submission of such a section 76 letter does not, however, bind them and if they do not plead guilty, or plead guilty only to a part of the indictment and the prosecutor is not prepared to accept a restricted plea, the section 76 indictment must be deserted pro loco et tempore and the Crown will usually serve a full indictment in due course. A plea of guilty which has been tendered to a section 76 indictment can be withdrawn prior to the recording of sentence, in which case the procurator fiscal can desert the indictment pro loco et tempore. Withdrawal is, however, limited to the situation in which the plea has been tendered under some real error or misconception or in circumstances that were seriously prejudicial to the accused.56 It will not suffice that evidence led subsequently at the trial of a co-accused suggests that the accused might have been convicted of something less than the terms of their plea. In Reedie v HM Advocate57 (in which that happened), the Lord Justice-Clerk (Gill), delivering the Opinion of the Court said: ‘A plea of guilty is a full admission of the libel in all its particulars . . . It is not a conditional admission that is subject to reconsideration in the light of a subsequent decision of the court . . . In view of the conclusive nature of such a plea, it can be withdrawn only in exceptional circumstances.’

The indictment Service Service of the indictment may be personal or by leaving it at the domicile of citation specified in the bail order (either in the hands of someone there or by 55

1996 SCCR 279. Healy v HM Advocate 1990 SCCR 110. 57 2005 SCCR 407. 56

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fastening it to the door).58 It is also competent (though rare in practice), where no proper domicile of citation has been specified, to leave the document at a place where the accused is believed, on reasonable grounds, to reside. In the rare case of an accused that is a body corporate being prosecuted on indictment, the indictment may be served (in terms of the 1995 Act section 70(2)) at its registered office or principal place of business in the UK. The indictment which is served on the accused sets out the charge and must be accompanied by a list of the names and addresses of the prosecution witnesses and a list of the productions, all as provided for by the 1995 Act section 66(4).

Charges The purpose of a criminal trial is not to discover the truth in general but to rather to determine whether or not it is proved that the accused person committed the particular offence charged against them. The Crown must, in framing the charge, direct the attention of the accused and the court to what it offers to prove and it must do so in a way that is both relevant and, as a sub‑branch of this, specific. When the criminal law refers to the relevancy of a charge, it means that what is alleged in the charge must amount to a crime known to the law of Scotland. A challenge to the relevancy of a charge asserts that, even if the prosecutor proves everything contained in the charge, it does not amount to an offence. A challenge to specification alleges that the accused has not received fair notice of the allegation against them. Thus a charge will be irrelevant if an essential element of the crime is omitted or if what is charged is a statutory prohibition that does not actually create an offence. The importance of a properly drafted charge was emphasised by Lady Smith in Glover v HM Advocate.59 As she said: ‘it is not enough that a charge alleges that a particular crime has been committed. It must also specify how the crime was committed. It must describe what it is that the accused are said to have done in such a way that gives fair and proper notice of the allegation that they are facing and, in the case of a verdict, explains what it is that the jury are satisfied that the accused did. It is an aspect of an accused’s right to a fair trial and is, thus, a matter of fundamental importance’.

Lady Smith’s reference to explaining what it is that the jury are satisfied that the accused did can have continuing significance if, at any time, the 58

Act of Adjournal (Criminal Procedure Rules) 1996 r. 2.2. 2014 SCCR 68.

59

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accused comes before a court for a subsequent offence because it is not competent for a party to address the sentencing judge about what might underlie a previous conviction. In Connell v Mitchell,60 the Lord Justice-Clerk (Macdonald) pointed out that the trial judge knows what facts were proved at the trial but that a judge considering the conviction afterwards does not. In Riley v HM Advocate61 it was held that the Crown can place an extract conviction including the terms of the charge libelled before the court but the Lord Justice-General (Rodger) drew the line at that, adhering to the reasoning in Connell about the risks of going further. Relevancy Khaliq and Ahmed v HM Advocate62 is an example of a challenge to relevancy where the Crown applied a well-recognised type of common law crime to what was, at the time, a new type of conduct. That case established that the crime of culpable and reckless conduct may be committed by the supply to children of so-called ‘glue sniffing kits’ – solvents with containers for inhalation – in the knowledge of the intended use and that such use was injurious to health and dangerous to lives. In so deciding, the High Court took the opportunity to reiterate that it is in the nature of Scots criminal law that it does not countenance any precise and exact categorisation of the forms of conduct that amount to crime. Old crimes can be committed in new ways and the law is flexible enough to deal with them. It follows that the fact that a precise precedent for a particular charge does not exist does not necessarily mean that the charge will be irrelevant. Article 7 ECHR should probably be seen as setting limits to this proposition. That article prohibits conviction in respect of conduct which was not a crime at the time it was carried out. In X Ltd and Y Ltd v United Kingdom63 the European Commission on Human Rights treated common law offences as unobjectionable in themselves and the development of the law by common law processes as also unobjectionable but made a distinction between that which clarifies the law and that which extends it such that it is made to ‘cover facts which previously clearly did not constitute a criminal offence’. As regards clarification, the Commission has said in the same case that ‘it is not objectionable that the existing elements of the offence are clarified and adapted to new circumstances which can reasonable be brought under the

60

(1905) 5 Adam 641. 1999 JC 308. 62 1983 SCCR 483. 63 28 DR 77 (1982). 61

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original conception of the offence’. This, it is suggested, is the key to understanding the relationship between article 7 and the sort of development of the law seen in Khaliq and Ahmed. Specification As to specification, the charge must give fair notice of the allegations which the accused will have to meet and, to that end, it is required to be specific as to time (which means date), place and mode. The test to be applied was set out clearly by Lord Justice-Clerk Ross in Clydesdale Group plc v Normand,64 a case on specification in a charge relating to a statutory offence, when, following Lockhart v National Coal Board,65 he said ‘[t]he appellants must be well able to anticipate what the Crown are seeking to establish, and that is the test of whether the charges are relevant and sufficiently specific’. Lord Eassie pointed out in RMM v HM Advocate66 that the precise terms of the charge ‘are an important part of the structural framework within which a jury trial in Scotland may satisfy the article 6 requirements for a reasoned judgment’. Specification must be considered in the light of the detailed rules contained in the 1995 Act and especially in Schedules 2 and 3, as given effect for petitions and indictments by sections 34 and 64 respectively. Section 64(2) provides that the indictment may be in the form set out in Schedule 2 (or prescribed by Act of Adjournal, though that has not been done). Schedule 2 is headed ‘Examples of Indictments’. It begins with the words: ‘(name and address . . . ) you are indicted at the instance of Her Majesty’s Advocate and the charge against you is that on [date] in a shop in George Street, Edinburgh, occupied by John Cruikshank, Draper, you did steal a shawl and a boa’.

It will be seen that this specifies the date, the place, the legal nature of the charge (‘you did steal’ – that is, theft) and then the items taken. This is the basic pattern which ought to be followed by any common law charge. The remainder of Schedule 2 gives further examples of charges. That Schedule is drawn directly from nineteenth century legislation and it might be regretted that the examples have not been more substantially updated. They retain a quality that is now somewhat quaint and use language which does not feature in modern practice. So, for example, we 64

1994 SLT 1302. 1981 SLT 161. 66 2013 SCCR 79. 65

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still see a charge relating to the uttering of a forged certificate of character for a domestic servant, and the unfortunate Harriet Cowan, mill-worker, of 27 Tweed Row, Peebles is still being ‘ravished’, notwithstanding the universal use of the word ‘rape’ in contemporary indictments for that offence (and the abolition of the common law offence of rape by the Sexual Offences (Scotland) Act 2009). Section 138(2) gives similar effect to Schedule 5 for summary cases, which (being drawn from 1954 legislation) is less dated but still somewhat so. It is suggested that, although Schedule 5 does not in terms refer to cases on indictment, the existence of a form of charge in that schedule will nevertheless be at least a powerful argument in favour of its relevancy where it appears on an indictment. The essential point about these forms of charge is that if they are followed the charge will be relevant even if specification of mode is thoroughly inadequate. For example: ‘you did, while in the employment of James Pentland, accountant in Frederick Street, Edinburgh, embezzle £4,075 of money’ does not tell the reader how the embezzlement was accomplished at all, and, in Schedule 5, ‘you did conduct yourself in a disorderly manner and commit a breach of the peace’ is hopelessly unspecific but is sanctioned by the 1995 Act and was given effect to by the High Court in Anderson v Allan.67 Schedule 3 then elaborates on aspects of this. We do not require to consider everything provided in Schedule 3 but the material it contains about time, place and mode is important. Quantity Paragraph 4 deals with specification of time, place and quantity. At the time of writing, it is common to see charges on summary complaint which fail to give any specification of quantity (for example, “you did steal a quantity of alcohol”). It is hard to see how that satisfies what Lady Smith said in Glover or what Lord Eassie said in RMM but challenges to the relevancy of such charges are surprisingly rare. In terms of the 1995 Act, quantity can be dealt with by noting that where a quantity of anything is specified in a charge the words ‘or thereby’ are implied in terms of paragraph 4(6). Accordingly, for example, a prosecution does not fail merely because the Crown alleges the theft of £200 and proves the theft of £195. Nor would the Crown be precluded from leading evidence that the amount stolen was £205. Indeed, in terms of the same provision, the words ‘or some other quantity to the prosecutor unknown’ are implied in all statements of quantities. As a result, in the example just given the Crown can secure a conviction even if the actual 67

1985 SCCR 399.

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amount of money stolen is left shrouded in confusion. That having been said, however, where proof of a particular quantity or the like is essential to the definition of the charge the latitude will not apply. Place Specification of the place of the commission of the crime (often called the locus) matters not only because it is required to give the accused fair notice of the case against them but also because the jurisdiction of the court will depend upon it.68 Paragraph 4(2) implies words such as ‘near’ in every charge so that some latitude exists as to place in every charge, again where the actual place is not of the essence of the crime. However, Symmers v McFadyen69 demonstrates that there are limits to this. In that case the Crown specified three roads as the locii of dangerous driving but led evidence of such driving on other roads as well. On appeal, the High Court said ‘if the Crown choose to confine themselves to three particular roads in their narrative of dangerous driving then they are confined to these particular roads unless there is some particular reason why some slight extension might be permissible’. Time Specification of time relates principally to date and the law about latitude as to time is more complex. It is usually possible for the Crown to state the date of the offence with accuracy but in some cases the most that is known is that the crime occurred during a particular period. Paragraph 4(1) therefore provides that the ‘latitude of time . . . in use to be taken’ is implied in all statements of time where an exact time is not of the essence of the charge. The latitude in use to be taken was three months70 and, subject to the exact time not being of the essence of the charge,71 that is the latitude which is implied. Accordingly, a charge which alleges that an offence took place on 1 February in a given year implies the period from 1 January to 31 March, and the Crown can lead evidence of the commission of the offence at any time during that period. It was decided in Howman v Ross72 that if a defence of alibi is being pled, the prosecutor will have to be more accurate as to date; otherwise the accused is unfairly hindered in their presentation of that defence.

68

McMillan v Grant 1924 JC 13. 2000 SCCR 66. 70 Hume ii 221, Alison, ii 251. 71 As it might be in a poaching case involving a closed season. 72 (1891) 3 White 57. 69

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There are some cases in which the period of time during which the offence occurred cannot be narrowed down to a three-month window. This may be because the offence itself is covert and not discovered by the victim for some time or it may be because the victim is a child who, for whatever reason, does not disclose the offence for some time. So, for example, in HM Advocate v Mackenzies73 the accused had been stealing from his employer over several years but had managed to conceal the fact. The latitude taken and allowed was six years. Again, where the owner of an asset does not check it for a considerable period, the Crown will libel the whole of that period. In Cuthill and Arbuckle v Guild,74 it was held that, on a complaint libelling theft of a cheque book and uttering forged cheques, it was reasonable to fix the dates by reference to the last date when the book was seen and the date of the utterings, even though that was seventeen months, because theft is in its nature a clandestine act. An example of a victim not disclosing the offence until a late date is to be found in HM Advocate v AE75 in which the Crown took latitudes of nine and a half years on one charge and five years on the other. In that case the charge was incest and the daughters of the accused had been eight and ten years old when the conduct started. The Crown was also proposing to prove a course of conduct and not just isolated acts. Nevertheless, in repelling an objection to the relevancy of the indictment Lord Justice-Clerk Aitchison said that there would be a heavy onus on the Crown to justify such a latitude. Ultimately, it is for the Crown to justify the taking of an exceptional latitude and inevitably that will depend on the circumstances of the particular case. The test to be met was set out by Lord Cameron in HM Advocate v Hastings76 as follows: ‘The basic principle which governs decision in questions of permissible latitude of time in criminal charges is that of fairness: fairness to the legitimate interest of the person accused in being fairly tried on a relevant charge, and fairness to the interest of the public in the detection and suppression of crime.’

Mode Specification of mode is about setting out in the indictment the conduct by the accused which forms the basis of the alleged charge. By Schedule 3 paragraph 2, it is not necessary to specify by any nomen juris the offence that 73

(1913) 7 Adam 189. 1989 SCCR 717. 75 1937 JC 96. 76 1985 SLT 446. 74

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is charged. Instead, it is sufficient that facts relevant and sufficient to constitute an offence are set forth. So, in Dyce v Aitchison77 the accused’s conduct in a court formed the basis of a charge of contempt of court; but contempt of court is not a crime. It is a matter sui generis with which the court, whether civil or criminal, has inherent power to deal. It was not, therefore, necessary for the Crown to prosecute the matter – the court could have dealt with it on its own initiative. However, the High Court considered that the facts narrated did amount to identifiable offences, even though none of them was named in the charge and the charge was therefore held to be relevant. Specification in statutory offences Schedule 3 paragraph 11 makes particular provision about statutory offences. It provides ‘[i]n an indictment or complaint charging a contravention of an enactment the description of the offence in the words of the enactment contravened, or in similar words, shall be sufficient’. This can result in greatly reduced specification, but is not a licence for the Crown to include no specification at all. We have already noted what Lord Ross said in Clydesdale Group plc v Normand and we can contrast two examples of the application of the principle that what matters is whether the defence can anticipate what the Crown are seeking to establish. In Yeudall v William Baird & Company78 the complaint charged a failure to produce adequate ventilation in a pit but did not specify what should have been done. It was held the complaint was relevant on the basis that it gave fair notice that the system of ventilation was said to be inadequate to perform its statutory function. In Blair v Keane,79 on the other hand, the complaint charged a contravention of the trade descriptions legislation and specified the extravagant claims made for the vehicle in question but none of its actual defects. It was held that, as the complaint did not tell the accused the defects upon which the prosecution would lead evidence, it did not give fair notice and was therefore lacking in specification.

Aggravations and dockets Aggravations Bail It is common to see it alleged, after the words of the charge, that the accused committed the offence whilst on bail. This derives its significance 77

1985 SCCR 184. 1925 JC 62. 79 1981 SLT (Notes) 4. 78

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from section 27(3) and (4) of the 1995 Act. The section as a whole deals with breach of bail conditions and subsection (1) makes it an offence to fail, without reasonable excuse, to attend at a diet or to comply with any other condition imposed on bail. Subsection (3) makes an exception to that. It provides that the commission of an offence whilst on bail is not an offence under subsection (1) but that, subject to it being libelled in the indictment (or complaint) in terms of subsection (4) that the accused was on bail at the time of the subsequent offence, the court, in sentencing for the subsequent offence, must have regard to the fact that the offence was committed whilst on bail.80 The requirement is to ‘have regard to’ the fact that the offence was committed whilst on bail and that fact is generally regarded as an aggravating feature of the offence. In order to allow for that, subsection (5) provides that, in a statutory offence, the effect of the bail aggravation is to increase the maximum penalty in the ways specified. Those ways include, in the High Court and sheriff court, an increase of six months in any period of imprisonment. If the charge includes a bail aggravation in this way, the accused must be held to have admitted that they were indeed on bail unless they challenge that fact by a preliminary objection made in the way set out in subsection (4A).81 Domestic abuse The next most common aggravation that is charged is provided for by section 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016. Subsection (2) provides that an offence is aggravated if, in committing it, the accused intended to cause their partner or ex-partner to suffer physical or psychological harm or (where the offence was committed against that partner or ex-partner) was reckless as to causing physical or psychological harm. It is not appropriate, in an introductory account of evidence and procedure, to devote the space that would be necessary to analyse that out in detail82 but it is important to note three things. First, in terms of subsection (5) the court must take the aggravation into account in determining the appropriate sentence. Secondly, in terms of section 234AZA of the 1995 Act, even without an application by the prosecutor the sentencing court must consider and must make a non-harassment order unless satisfied that 80

And also to certain other things, including the number of bail orders to which he or she was subject at the time. 81 1995 Act s. 27(4B). 82 But see the annotations to the section in Renton and Brown’s Statutory Offences (Edinburgh: Thomson Reuters/W. Green), para. [B400].

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there is no need for the victim to be protected by such an order. This is very important in practice. A non-harassment order is an order requiring a person to refrain, for a specified or indeterminate period, from such conduct in relation to the victim as may be specified in the order.83 Although the 1995 Act does not say what prohibitions should be included, such orders usually prohibit an offender from having any contact with the complainer. That can, obviously, have a significant effect on the lives of the parties. The test, in a case under section 234AZA, is not whether the court is satisfied that it is appropriate to make the order and the views of the victim, although relevant, are not decisive.84 And, thirdly, the assumption which is made commonly, that the aggravation is established automatically in any case in which the relationship is established, is seriously wrong. Intention to cause physical or psychological harm, or recklessness about so doing, is essential in all cases. Prejudice The third type of aggravation which must be noticed is that relating to offences aggravated by prejudice. At the time of writing the Hate Crime and Public Order (Scotland) Bill had been passed but had not yet received Royal Assent. Sections 1 and 2 deal with aggravation of offences by prejudice. Where the indictment or complaint libels that the offence is aggravated by prejudice, and where it is proved that it is so aggravated, the court must state and record that the offence is aggravated in that way and must take the aggravation into account in determining the appropriate sentence. In terms of section 1, an offence is aggravated by prejudice in two sets of circumstances. The first set relates to an offence which has a specific victim.85 In such a case, the offence is aggravated by prejudice if, at the time of committing the offence or immediately before or after doing so, the offender: (i) evinces malice and ill will towards the victim; and (ii) that malice and ill will is based on the victim’s membership or presumed membership of a group defined by one of a list of characteristics. The second set of circumstances applies whether or not there is a specific victim. In such a case, the offence is aggravated by prejudice if it is motivated by malice and ill will towards a group of persons based on the group being defined by reference to one of the listed characteristics.

83

1995 Act s. 234A(1A). Finlay v PF Perth [2020] SAC (Crim) 1. 85 The Bill uses the words ‘victim’ and ‘offender’, notwithstanding Wishart v HM Advocate 2014 SCCR 130. 84

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One important difference between these two sets of circumstances is that, where there is a specific victim there must be proof that the offender evinced malice and ill will. If they did, motivation is irrelevant. The focus will be on what was said or done. Where there is no specific victim, it must be proved that the offence was motivated by malice and ill will. To be sure, that will often be clear from what the offender did or said but it might also be a matter of inference from other circumstances. Proof that the offence is aggravated can come from a single source86 but, of course, that does not arise until the offence which is alleged to be aggravated is proved in the usual way, which involves corroboration. Although the 1995 Act legislates for an offence of stirring up hatred, it needs to be understood that it is not an offence in itself to be prejudiced or to hold views which are unpopular or subject to widespread disapproval. Before prejudice can be regarded as criminal, it must be proved to have amounted to malice and ill will evinced immediately before, during or immediately after the commission of some specific offence. Dockets One sometimes sees added to a charge a docket in terms of section 288BA of the 1995 Act, which enables to Crown to include in an indictment or complaint a docket ‘which specifies any act or omission that is connected with a sexual offence charged in the indictment or complaint’ and creates a presumption that evidence of the act or admission is admissible as relevant. The purpose of this is, in terms of subsection (5)(a), to give fair notice of the prosecutor’s intention to lead evidence of the act or omission specified in the docket. It is important to understand that a docket can only be included if it specifies an act or omission connected with a sexual offence that is charged in the indictment. The section does not allow the Crown to place before the jury information about conduct which has no connection with the sexual offence charged. In S v HM Advocate87 Lord Turnbull explained that: ‘Two considerations arise in order to determine whether an act or omission is connected with a sexual offence charged in the indictment. First, the act or omission requires to be specifiable by way of reference to a sexual offence. Second, the act or omission must relate to the same event or to a series of events of which that offence is also part.’

In that case, the docket related to sexual activity intercourse with the complainer earlier, whilst she was aged fourteen or fifteen. At first instance, no 86

Hate Crime and Public Order (Scotland) Bill clause 1(4). 2020 SLT 1220.

87

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challenge was made to the use of the docket and so the court did not need to consider whether this was a proper use of a docket. The appeal could not succeed because section 118(8) of the 1995 Act prevents the Appeal Court from setting aside any conviction on the basis of an objection not stated timeously (that is, in the first instance court). HMA v Moynihan88 provides an example of this in operation. A docket was added to an indictment for attempted rape, in terms of which the Crown proposed to lead evidence of facts relating to other conduct at about the same time, which constituted the crime of rape. The accused had been convicted of that crime of rape. The important point that the evidence was relevant to the crime indicted was conceded but it was argued that the prohibition, in section 101 of the 1995 Act, against laying previous convictions before the jury meant that the evidence could not be led. Rejecting that argument, the court explained that section 288BA is framed in the widest possible terms. The Lord Justice-Clerk (Dorrian) pointed out that it was not intended to lay evidence of the conviction before the jury but evidence which formed only part of the basis for conviction. The docket is only the giving of notice about evidence to be led. It is not a charge and juries are told that they are not required to return any verdict in relation to it.

Amendment of charges Section 96 of the 1995 Act provides as follows: ‘(2) It shall be competent at any time prior to the determination of the case, unless the court see just cause to the contrary, to amend the indictment by deletion, alteration or addition, so as to— (a) cure any error or defect in it; (b) meet any objection to it; or (c) cure any discrepancy or variance between the indictment and the evidence. (3) Nothing in this section shall authorise an amendment which changes the nature of the offence charged . . . ’

Section 159 is in identical terms for summary procedure. Subsection (2) opens with the words ‘[i]t shall be competent at any time. . .’ and applications to amend the indictment are encountered at all stages up to the point at which the prosecutor sits down at the end of the Crown speech to the jury.

88

2019 SCCR 61.

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The power of amendment is wide but not unlimited. It cannot be used to repair a fundamental defect in the charge – to convert a nullity into a charge that can proceed. As Lord Justice-Clerk Moncrieff put it in Stevenson v McLevy,89 ‘[h]owever wide the power of amendment . . . may be, it cannot extend to the essential requisites of a criminal charge’. Lord McLaren expressed a similar idea in MacIntosh v Metcalfe90 when he said ‘[n]ow, to remedy a defect does not mean to transform into a libel what never was a libel’. In Paterson v HM Advocate91 the Appeal Court recognised that it is difficult to extract from the authorities what amounts to a fundamental nullity. In both Stevenson v McLevy and MacIntosh v Metcalfe, the complaints omitted to specify the locus of the alleged offence and the sheriff had allowed them to be amended by inserting a locus; but the court held that these amendments were incompetent. This, however, must be seen in the context of Herron v Gemmell,92 where the locus libelled in the complaint read ‘on the road on the Glasgow Inner Ring Road, at a part thereof near Charing Cross underpass’ but did not say that this was in Glasgow. The procurator fiscal sought to amend by inserting the word ‘Glasgow’ after the word ‘Road’ and the sheriff refused to allow that amendment. The Appeal Court, however, held that the amendment should have been allowed. Lord Justice-Clerk Wheatley said that a sensible reading of the description given of the locus made it abundantly clear that it was within the jurisdiction of Glasgow Sheriff Court. He went on to distinguish the situation in which no locus is given at all from that in which (as in the instant case) the locus is very fully specified ‘but might be lacking in some technical point of description’. There are shades of grey between these two extremes and it will be a question for the court in each case where that particular case falls. In Yarrow Shipbuilders Ltd v Normand 93 it was held that ‘on Unit 5, Ship 1047’ was inadequate to demonstrate that Glasgow Sheriff Court had jurisdiction and the procurator fiscal was not permitted to amend by adding the words ‘South Street, Glasgow’. Lord Justice-General Hope said that ‘an amendment . . . cannot be made if the complaint is in the first instance incompetent’. In Paterson v HM Advocate the indictment charged two statutory offence of lewd and libidinous conduct towards a girl aged over twelve and under sixteen94 but stated the date of birth of the complainer (correctly) from which 89

(1879) 4 Couper 196. (1886) 1 White 218. 91 2008 SCCR 605. 92 1975 SLT (Notes) 93. 93 1995 SCCR 224. 94 This offence is replaced by s. 20 of the Sexual Offences (Scotland) Act 2009 but that does not affect the principle being discussed here. 90

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it was clear that, at the date of the offence, she had passed her sixteenth birthday. The procurator fiscal persuaded the sheriff to allow amendment of the indictment to convert these charges to breach of the peace. The Appeal Court held that the statutory charges had been irrelevant (in that the complainer’s actual age took her outwith their scope) but not fundamentally null because the facts narrated in the charge could constitute an offence at common law.95 It seems, then, that if a sensible reading of what is in the charge gives the information necessary, an amendment to put the charge into a proper form will be allowed but that amendment to provide the basic, essential information is not competent. That sort of approach was applied to the benefit of the Crown in Duffy v Ingram.96 In that case the complaint had three charges. No date was given for the commission of the alleged offence in the first charge; the second charge began ‘date and place above libelled’ and the third charge began ‘on said 30 November 1985’. It was held that the date could be inserted in charges one and two by amendment. The High Court did not say so but, reading the charges together, it is clear that the Crown was alleging that the offences were all committed on 30 November 1985 and it is suggested that the case is to be understood on that basis. Whether or not to allow an amendment is a matter for the discretion of the court but it is clear that prejudice to the accused will be an important factor. In Lockhart v BSM97 a sheriff refused to allow an amendment partly because it proposed to narrate (but not charge) a further offence by one of the accused (which the sheriff characterised as ‘a radical change to the character of the offence charged’) but also because the amendment would have deprived the accused of a statutory defence which would have been available in respect of the unamended version and this he considered to be prejudicial. Again, in Walker v HM Advocate98 it was held that amendment of the locus from Aberdeen prison to Inverness prison, whilst technically competent, should not have been allowed because in its amended form the charge would have required wider investigation by the defence than they had properly carried out based on its original form. Absence of prejudice to the accused weighed heavily with the court in Tudhope v Chung.99 In that case the Crown had charged the accused with having done certain things in the capacity of one who had management 95

It would now be a contravention of s. 3 of the Sexual Offences (Scotland) Act 2009. 1987 SCCR 286. 97 1982 SCCR 188. 98 1999 SCCR 986. 99 1985 SCCR 139. 96

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and control of premises; but the particular regulation contravened related to occupiers of premises. The Crown sought to amend so as to substitute the latter status for the former. The sheriff refused to allow that to be done but the Appeal Court allowed the Crown’s appeal. Lord Justice-Clerk Wheatley said: ‘The character of the offence is the breach of the regulation and that has not been changed . . . This was a classical example of curing an obvious error or defect . . . just the sort of things which [the section] has in contemplation. If the amendments are allowed it is the same person who is being charged with the same offence . . . it was not suggested that the respondent would be prejudiced in any way in his defence on the merits if they were allowed . . . ’

List of witnesses The list of witnesses is governed by the 1995 Act section 67. By that section the list must provide the names of the witnesses together with an address at which they can be contacted for precognition. It is in general not open to the Crown to call any witness whose name does not appear on the list or refer to any production not included in the list of productions. However, by the 1995 Act section 67(5), it is competent, with leave of the court, for the prosecutor to examine such witnesses or refer to such productions provided that written notice has been given to the accused. In the High Court that notice must be given not less than seven clear days before the preliminary hearing. If that deadline is missed, the notice can be given at any time before the jury is sworn to try the case but only on cause shown. In the sheriff court, the notice must be given not less than two clear days before the jury is sworn to try the case. Notices of this sort are very common.

Productions As a matter of practice, productions are dealt with, and listed, in two categories. The first category is documentary productions. That category covers everything whose significance lies in its contents. Typically, that would be the text that is in a document. A threatening letter or the forms used to record the procedure in a drink-driving case would be common examples. It is not the pieces of paper themselves which are significant. It is the words, figures and illustrations written on them that matter. The second category is labelled productions. That covers those things that matter as objects – a knife, a blood sample and so on. They are referred to as ‘labelled’ productions because when the investigating

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agency (usually the police) takes possession of the item, they attach a label100 which is signed and dated by the witnesses who identify the item so as to make it possible to prove that what is lodged as a production is the same item about which the witnesses are giving evidence. The two categories are not entirely distinct and miscategorisation in the list with the indictment is unlikely to do much harm. For example, it is possible to imagine that, on a charge of stealing a newspaper, the date shown on the front of the newspaper might be relevant to proof. One would, nevertheless, normally expect that the newspaper in question would be a labelled production. Labelled productions As Lord Carloway made clear in HM Advocate v AM,101 section 68(2) contemplates that labelled productions ought to be lodged with the clerk of court along with the record copy indictment. The same reasoning applies to the documentary productions. The defence have an absolute right to examine the productions and that applies even if, for convenience or security, the productions actually remain in the hands of the Crown. Accordingly, once the indictment is served, and assuming that the Crown has discharged its obligation to disclose witness statements,102 the defence ought to be in a position to work out exactly where they are going with the case. This might be more challenging if the indictment contains charges arising out of facts which bear no relationship to what was on the petition but those indictments are a small minority. It is sometimes argued that the law requires that absolutely any object mentioned in the course of evidence should be produced in court and that evidence about anything not produced is inadmissible. There are many cases about this question and they demonstrate that the law makes no such requirement. Rather, it discriminates between those things that truly add to the evidence and those that do not. The best starting point is MacIver v Mackenzie,103 in which a man was charged with taking wreck (pit props, battens and logs) without delivering it to the Receiver of Wreck. The wreck was not produced at trial. Lord Justice-General Normand said in the course of the judgment: ‘The learned counsel for the appellant asserted that there was an obligation on the prosecutor to produce any article which was referred to in an

100

At least they usually do – see Leadbetter v HM Advocate 2021 SCCR 21 for what can happen when the labelling procedure goes wrong. 101 2016 SCCR 227. 102 See p. 86. 103 1942 JC 51.

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indictment or complaint unless it was beyond his power to do so. There is certainly no such rule. It is no doubt the proper practice to produce any article referred to in the indictment or complaint where there is no practical difficulty in doing so. There are, however, many cases where it is inconvenient, though not wholly impossible, to make articles productions in the case because of the size of the articles. Livestock cannot conveniently be made productions in all cases. Perishable goods cannot be made productions and there are other examples. The question in each case is whether the real evidence is essential for proving the case against the accused’ [emphasis added].

The final sentence is the key to this whole area of law. If the article – what Lord Normand referred to as ‘the real evidence’ – is essential to proof of the case, it should be produced unless that is impracticable. In Tudhope v Stewart104 the Appeal Court distinguished the proof of the case from making it possible for the defence to test credibility by reference to the articles. In that case there was evidence that the accused had been seen running from a shop carrying clothing. The defence wished to demonstrate the improbability of that by reference to the bulkiness of the clothing. It was held that it did not have to be produced. The Appeal Court said that the test is ‘whether the real evidence was essential for proving the case against the accused, not for the purpose of testing credibility’.105 The position reached in McIver v MacKenzie was reaffirmed in McKellar v Normand106 in which the appellant had been charged with reset of a bed and blanket which were not produced and it was held that whilst it is good practice for items which are the subject of this sort of charge to be produced if it is convenient to do so or, failing production, for labels relating to them to be produced in their place, the question is always whether injustice is likely to result from failure to produce them. In McKellar the court took the view that it was not and upheld the conviction. In Hughes v Skeen107 a man was convicted of theft of seventy-eight newspapers which were not produced at the trial. In upholding the conviction the Appeal Court observed that it was not explained what purpose in the interests of justice would have been served by the production of the newspapers and that such production was neither necessary, convenient nor practicable.

104

1986 SCCR 384. Note s. 276 of the 1995 Act, which provides that evidence as to the characteristics and composition of biological material is admissible notwithstanding the fact that neither the material nor a sample of it is lodged as a production. 106 1992 SCCR 393. 107 1980 SLT (Notes) 13. 105

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We may contrast Anderson v Laverock,108 a poaching case in which the manner in which fish had been taken was essential to the charge and was proved by distinctive marks on the fish. Fish being perishable, the prosecution did not produce them at trial and for that the court did not make any criticism. However, the prosecution went further and destroyed the fish without giving the defence any opportunity to have them examined. This, it was held, was prejudicial and the conviction was quashed. Where the original material is made available, it is open to the Crown to use derivatives of that material to produce the evidence. In Hamilton v Grant,109 for example, fingerprint lifts were made on vinyl sheets at the locus but photographs of those lifts were used by forensic scientists for comparison with the fingerprints of the accused. The vinyl sheets were lodged as productions at the trial but the sheriff upheld a no case to answer submission on the basis that the best evidence rule required that vinyl lifts should have been used for comparison. The Crown appeal against sheriff’s decision was allowed, though the court did not issue an opinion and we cannot therefore know the reasoning. We do know that in HM Advocate v Dennison110 a trial judge allowed evidence to be led of Sellotape lifts from prints on a cigarette packet, on the ground that there was nothing distinctive about the packet itself, though he regretted the absence of the packet. The point has sometimes been taken that the party wishing to lead evidence about the results of examination of an article needs to have that article in court to have it identified by both the person who speaks to the circumstances in which it was found and also by the person who made the examination. The argument goes that it is only in this way that it can be proved that the article examined is that which was found in circumstances of significance to the case. Such was the argument made in Williamson v Aitchison,111 a drink-driving case in which the evidence related to a blood sample which was not produced at court. The appellant argued that this made it impossible for a constable to give evidence that the blood referred to in the analyst’s certificate was that taken by the doctor from the accused, thereby breaking the link between the blood taken and that analysed. The court observed that whilst it would be usual to produce the sample it was not the only way to make the link and held that the analyst’s and doctor’s certificates taken with the evidence of the police that one part of the sample

108

1976 SLT (Notes) 14. 1984 SCCR 263. 110 1978 SLT (Notes) 79. 111 1982 SLT 399. 109

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taken by the doctor had been sent to the analyst were enough to make the link. The conviction was upheld.112 Documentary productions Particular rules apply to documents which are to be productions with a view to proof of their contents. Issues arise in relation to copy documents and to business records. Copy documents The general rule is that a copy is secondary evidence. The best evidence is the original. Therefore in a criminal case unless the absence of the original can be explained satisfactorily as by its loss or destruction, the copy is inadmissible. This rule, for which there was more justification when copies were handwritten than nowadays when they are produced photographically or electronically, has been heavily modified by statute. Nevertheless, it must be borne in mind because if the statutory requirements are not met it will express the law which applies. The statutory modification is to be found in Schedule 8 to the 1995 Act, which is based on work done by the Scottish Law Commission in a report entitled Evidence: Report on Documentary Evidence and Proof of Undisputed Facts in Criminal Proceedings.113 The root of the objection to the copy document seems to be Dickson’s remark114 that: ‘copies are often inaccurate from inadvertence . . . admitting them would afford opportunities for misleading the jury, and . . . a party is most likely to tender such secondary evidence in order to gain an improper advantage from a discrepancy between it and the original document’.

The Commission pointed out the inapplicability of the risk of inadvertent error in light of the existence of the photocopier and thought that the risk of deliberate deception could be sufficiently met by a power in the court to direct production of the original where it is desirable for the court to see the original or where there is any genuine dispute as to its appearance. This was substantially the approach taken for civil evidence in section 6 of the Civil Evidence (Scotland) Act 1988. It predates the ready availability of scanning and did not imagine the production of documents electronically without them necessarily ever being printed in hard copy. 112

See also Leadbetter v HM Advocate [2020] HCJAC 51. Scot. Law Com. No. 137. 114 Scot. Law Com. No. 137, para. 279. 113

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Accordingly, paragraph 1 of Schedule 8 provides: ‘For the purposes of any criminal proceedings a copy of, or of a material part of, a document, purporting to be authenticated in such manner and by such person as may be prescribed, shall, unless the court otherwise directs, be(a) deemed a true copy; and (b) treated for evidential purposes as if it were the document, or the material part, itself, whether or not the document is still in existence.’

By paragraph (2) it is immaterial how many removes there are between a copy and the original. Essentially, the effect of this is that a copy, provided that it bears what purports to be a proper authentication and the court does not ‘otherwise direct’, is not only to be deemed a true copy but is to be treated as if it were the original. It is also worth noting that in this provision, as throughout the Schedule, ‘document’ is not confined to written documents. It includes maps, plans, graphs, drawings, photographs, sound recordings and visual recordings. Authentication, by rule 26(1), is to be carried out by: (i) the author of the original document, (ii) a person who is or who has been in possession and control of the original or a copy of it, or (iii) the authorised representative of such a person. It is to be in the form provided as Form 26.1-A. It is also important to note that all that is necessary is that the copy purports to be properly authenticated. It is not necessary for admissibility that the person who authenticates the document actually compares it with the original, though if they give evidence and it transpires that they have not done so, the reliability of the document might become a matter of comment. Business documents Paragraph 1 of Schedule 8 relates to copies of all kinds of documents. Paragraph 2, by contrast, is specific to documents relating to businesses and undertakings and the holders of paid and unpaid offices – though, as we shall see, this is scarcely a major limitation. Paragraph 2(1) provides: ‘Except where it is a statement such as is mentioned in paragraph 3(b) and (c) below, a statement in a document shall be admissible in criminal proceedings

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as evidence of any fact or opinion of which direct oral evidence would be admissible, if the following conditions are satisfied— (a) the document was created or received in the course of, or for the purposes of, a business or undertaking or in pursuance of the functions of the holder of a paid or unpaid office; (b) the document is, or at any time was, kept by a business or undertaking or by or on behalf of the holder of such an office; and (c) the statement was made on the basis of information supplied by a person (whether or not the maker of the statement) who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with in it.’

This too is derived from the Scottish Law Commission Report. The Commission treated the law as to business documents as a branch of the law relating to hearsay, essentially because they contain a record of what someone has said or done. After reviewing the existing law, and with some prescience, the Commission came to the conclusion that it was ‘not well suited to the needs of a society which increasingly depends on information kept or generated by a growing variety of technical methods’.115 The Commission noted that business records, far from being an inherently unreliable type of evidence, are in fact likely to be highly reliable because the business that makes them depends on them.116 This approach was carried through to the report itself and in particular the Commission identified three tests of reliability for statements in business documents. First, the statement would have to be based on someone’s personal knowledge, so that it would be derived from someone who knew what they were talking about; secondly, the statement should have been made for the purposes of a business; and thirdly, the document containing the statement should have been kept by a business.117 The point of these requirements was that if a person was making a statement for the purposes of a business and the document was important enough to be kept, there would be a strong incentive to accuracy. These three tests underlie the three conditions which must be satisfied before paragraph 2 can apply. Where these conditions are satisfied, a statement in the document is admissible in criminal proceedings as evidence of any fact or opinion of which direct oral evidence would have been admissible. The statement in 115

Scot. Law Com. No. 137, p. 3. Scot. Law Com. No. 137,p. 8. 117 Scot. Law Com. No. 137, p. 6. 116

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the document stands as evidence in its own right and it does not require to be ‘spoken to’ by a witness; the sole functions of the witness are to establish that the conditions are met and (perhaps) to interpret a statement that is couched in the jargon of a particular business. In Al Megrahi v HM Advocate,118 the Appeal Court said that the conventional approach to documentary evidence consisting of records regularly kept by a business is to regard them as reliable unless some specific reason exists to doubt their credibility. The first test – that the document should have been created or received in the course of, or for the purposes of, a business or undertaking or in pursuance of the functions of the holder of a paid or unpaid office – requires to be satisfied by the evidence of a witness. It defines the breadth of the provision. By paragraph 8, ‘business’ includes trade, profession or other occupation. By the same paragraph, ‘undertaking’ includes any public or statutory undertaking, any local authority and any government department. ‘Holder of a paid or unpaid office’ is not defined but the Scottish Law Commission intended it ‘to cover such persons as an office bearer in an entity which is neither a business nor an undertaking, such as a charity, kirk session or club, who may keep documents for the efficient discharge of his functions’.119 The second test is that the document was kept by the business, undertaking or office holder and in terms of paragraph 4 this test can, subject to a discretion in the court to direct otherwise, be satisfied by certification in prescribed form120 and purporting to be authenticated in such manner as might be prescribed either by a person authorised to do so on behalf of the relevant business or undertaking or by an office holder or a person authorised on his or her behalf, as the case may be. The Law Commission suggested that a court would not be likely to ‘otherwise direct’ unless the party objecting to the statutory mode of authentication put forward at least prima facie grounds for not accepting that the document had been kept by the business concerned.121

Notice of previous convictions By the 1995 Act section 69(2), if the Crown is going to hand the court a notice of previous convictions in the event of the accused being convicted, that notice must have been served upon the accused along with the indictment. A form is prescribed in the Act of Adjournal (Criminal Procedure Rules) 1996 (the Criminal Procedure Rules). Section 101A provides that, 118

2002 SCCR 509. Scot. Law Com. No. 137, p. 11. 120 Form 26.1-C. 121 Scot. Law Com. No. 137, p. 30. 119

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where a person is convicted, the court, in deciding on disposal, may have regard to any conviction or alternative disposal (fixed penalty, compensation offer by the procurator fiscal or a work order under section 303ZA of the 1995 Act) which occurred after the date of the offence being dealt with but before conviction.

Action by the defence between service of indictment and first diet/ preliminary hearing Once the indictment has been served, the defence will be in a position to prepare the case with knowledge of the actual allegations that the Crown offers to prove. The 1995 Act requires them to take certain steps and, if they do not do so, it will limit or exclude altogether the pursuit of particular lines of defence. Defence statement We have noted above122 that, as part of the disclosure arrangements the accused must lodge a defence statement fourteen days before the first diet (in the sheriff court) or the preliminary hearing (in the High Court). Unless a defence statement has been lodged, an application cannot be made under section 128 of the Criminal Justice and Licensing (Scotland) Act 2010 for a ruling on whether section 121(3) of that Act makes information disclosable.123 In terms of section 124 of the 2010 Act, the prosecutor must review the disclosure position in light of the defence statement and make whatever additional disclosure is necessary. In addition, the accused may serve a further statement at any time up to the trial, to trigger further disclosure. Seven days before the trial, the accused must lodge a statement saying that there has been no material change in the defence position or, if there has, serve a further defence statement.124 Compatibility issues Section 6 of the Human Rights Act 1998 (the HRA 1998) makes it unlawful for a public authority to act in a way which is incompatible with a Convention right. The Lord Advocate and the courts are both public authorities for this purpose. It is, therefore, possible for the defence to argue that some factor makes the prosecution incompatible with Convention rights and, 122

See p. 88. See p. 88. 124 1995 Act s. 70A(4) and (5). 123

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hence, ultra vires of the Lord Advocate as a public authority. In the early years after the enactment of HRA 1998, there was a series of cases in which this was explored. The most significant structural issue related to the independence of a court constituted by a temporary sheriff (a category of judge that no longer exists) but there were also issues about delays in prosecution, interviews of suspects by the police and disclosure. These and other questions have been resolved (sometimes by legislation) and the effect of the ways in which that was done are dealt with in this book under the relevant subject headings. Fascinating though the interpenetration of human rights law and criminal procedure undoubtedly is, this book is not the place for that analysis. Now, although it remains open to the defence to take points of that sort, in practice, human rights questions arise most often in relation to the admissibility of evidence which the Crown proposes to lead. A question whether a public authority has acted or proposes to act in a way which is made unlawful by HRA 1998 section 6 is a ‘compatibility issue’.125 Written notice of a compatibility issue must be given of a compatibility issue by a minute in the form prescribed126 no later than fourteen clear days before the preliminary hearing or first diet.127 If that is not done, the issue cannot be raised unless the court, on cause shown, allows it.128 The minute must be served on the Advocate General, who is empowered by section 288ZA of the 1995 Act to take part as a party in the criminal proceedings, though they are unlikely to do so in practice where the issue is fact-specific in relation to a particular case rather than relating to the kind of systemic or structural issues in which the Advocate General did intervene quite regularly in early years after HRA 1998 was enacted. A court before which a compatibility issue is raised may decide it or may refer it to the High Court in terms of section 288ZB of the 1995 Act. The Lord Advocate or Advocate General may require the first instance court to refer the matter to the High Court.129 If the court proposes or is required to refer the issue, it must analyse it and propose a solution for consideration by the High Court130 and, accordingly, the first instance court will need to hear argument on the point. 125

1995 Act s. 288ZA(2). The concept also includes a question whether an Act of the Scottish Parliament is incompatible with a Convention right. 126 Criminal Procedure Rules Form 40.2. 127 Criminal Procedure Rules r. 40.2. 128 Criminal Procedure Rules r. 40.6. 129 1995 Act s. 288ZB(2). 130 O’Leary v HM Advocate 2014 SCCR 421.

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Notice of special defences, defence witnesses and defence productions The fact that the burden of proof is at all times on the Crown is reflected in the obligations placed on the Crown as to the content of the indictment, list of Crown witnesses and list of Crown productions. However, it must not be forgotten that the law aims to balance the interest of the accused in securing a fair trial with that of the public in securing the effective prosecution of crime, and that Scottish criminal procedure is adversarial in its nature. It is as much in the public interest that the prosecutor has fair notice of the defence case as it is that the accused has notice of the case against them; only in that way can the prosecutor in the public interest make proper investigation of any substantive case which the accused proposes to advance, to either confirm or rebut it. Accordingly, the 1995 Act provides that it is not competent for an accused to state a special defence or to lead evidence calculated to exculpate themselves by incriminating a co-accused unless notice is given in terms of that section.131 Nor is it competent to advance a plea of diminished responsibility or a defence of automatism, coercion or consent in relation to a sexual offence. The notice required is specified in section 78(3). In relation to a High Court indictment, notice must be lodged not less than seven clear days before the preliminary hearing. In relation to a sheriff court indictment, it must be lodged at or before the first diet. Separate notice is not required if it is stated in the defence statement,132 though it is easier for the clerk of court, who has to read it to the jury, if it is lodged separately anyway. Missing these time limits is not necessarily fatal to the defence position because it is open to the court to direct that the accused can found upon matters which would otherwise be incompetent for lack of notice but only on ‘cause shown’.133 That requirement means that some sort of explanation will always be required. Thereafter, the decision is a discretionary one, which is likely to involve consideration of the extent to which the Crown or any co-accused is likely to be prejudiced by late notice. There are three remaining common law special defences: alibi, incrimination and self-defence. Alibi simply means ‘that the accused is claiming that at the time libelled he was not at the place libelled but was at some other specified place’134 (and so cannot have committed the crime). Incrimination means that the accused blames some other person for the 131

1995 Act s. 78(1)(a). 1995 Act s. 78(1A). 133 1995 Act s. 78(1)(b). 134 Lord Justice-Clerk (Ross) in Balsillie v HM Advocate 1994 SLT 1116. 132

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crime. And self-defence means that any violence used by the accused was in legitimate defence to an attack, actual or apprehended, upon them or another. This is properly dealt with in the context of offences of violence, rather than here. The former common law special defence of insanity at the time has been replaced by the special defence of absence of criminal responsibility on the ground of mental disorder, in terms of section 51A of the 1995 Act. Subsection (1) provides that a person is not criminally responsible for conduct constituting an offence, and is to be acquitted, if they were, at the time of the conduct, unable by reason of mental disorder to appreciate the nature or wrongfulness of the conduct. Detailed consideration of this defence would be for a book on criminal responsibility rather than evidence and procedure. In terms of the law of evidence, it is unusual because the person charged must establish it on the balance of probabilities.135 For the other special defences, the position is best summarised in the words of the High Court in Lambie v HM Advocate136: ‘The only purpose of the special defence is to give fair notice to the Crown and once such notice has been given the only issue for a jury is to decide, upon the whole evidence before them, whether the Crown has established the accused’s guilt beyond reasonable doubt. When a special defence is pleaded, whether it be of alibi, self defence or incrimination, the jury should be so charged in the appropriate language, and all that requires to be said of the special defence, where any evidence in support of it has been given, either in course of the Crown case or by the accused himself or by any witness led for the defence is that if that evidence, whether from one or more witnesses, is believed, or creates in the minds of the jury reasonable doubt as to the guilt of the accused in the matters libelled, the Crown case must fail and they must acquit.’

It is also not competent, unless the court, on cause shown, otherwise directs, for the accused to examine any witnesses or put in evidence any productions unless notice is given on the same timescale as special defences.137 There is, however, an exception in that the accused does not have to give notice of witnesses or productions listed by the Crown.138

Preliminary pleas and preliminary issues At the first diet or preliminary hearing, the court will deal with any preliminary pleas or preliminary issues. Notice of such matters must be given in terms of the 1995 Act because section 79(1) provides: 135

1995 Act s. 51A(4). 1973 JC 53. 137 1995 Act s. 78(4). 138 1995 Act s. 78(4). 136

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‘Except by leave of the court on cause shown, no preliminary plea or preliminary issue shall be made, raised or submitted in any proceedings on indictment by any party unless his intention to do so has been stated in a notice under section 71(2)139 or, as the case may be, 72(3) or (6)(b)(i)140 of this Act.’

The sections referred to require notice to be given not less than two clear days before the first diet in the sheriff court and not less than seven clear days before the preliminary hearing in the High Court. Section 79(1) is supplemented by section 79A(2) which provides that the court shall not grant leave as contemplated by section 79(1) if the party seeking to raise it has not given written notice of their intention to do so to the other parties. Before we consider what constitutes a preliminary plea or preliminary issue, it is worth noting that section 79(1) applies to ‘any party’. That includes the Crown as well as the defence.

Preliminary pleas Section 79(2) lists preliminary pleas. They are: (i) a matter relating to the competency or relevancy of an indictment; (ii) an objection to the validity of the citation of a party; and (iii) a plea in bar of trial. Challenges to competency or relevancy Renton and Brown141 distinguishes the concepts of competency and relevancy as succinctly as can possibly be done: ‘an objection to competency implies that the trial of the accused person before a certain court, or at the instance of a certain prosecutor or upon a certain charge is not competent; an objection to relevancy implies that the terms of the indictment to which the accused person is asked to plead are not in accordance with the requirements of the law’.

Competency Challenges to competency are, therefore, directed essentially to the right to prosecute and the most obvious ground upon which the competency of an indictment may be challenged is lack of jurisdiction. Another ground would be that the time limits that apply once the accused has appeared on petition have expired. 139

Sheriff court. High Court. 141 GH Gordon QC et al., Renton and Brown’s Criminal Procedure, 6th edn (Edinburgh: Thomson Reuters/W. Green), para. 9–02. 140

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Much less frequently the person in whose name the indictment runs will be found not to have a title to prosecute. The 1995 Act section 64(1) provides that all prosecutions for the public interest before the High Court or before a sheriff and jury shall proceed on indictment in name of Her Majesty’s Advocate, so that anything which purports to be an indictment and which runs in another name will be incompetent except where the office of Lord Advocate is vacant when section 287(2) of the 1995 Act permits indictments to run in the name of the Solicitor-General. Challenges to validity of citation The whole purpose of serving the indictment on the accused is to give them notice of the charge which they are to face. Accordingly, failure to serve the indictment is fatal to the proceedings and trial on that indictment cannot go ahead. In Hester v MacDonald142 an accused person had been granted money bail (the usual procedure at that time), and a domicile of citation was fixed. However, he failed to lodge the money and so remained in custody. The indictment was served at the domicile of citation and the accused, who was in prison, never received it, either actually or constructively. The domicile of citation had not taken effect. The case went to trial and the accused was convicted unanimously, but when the Crown learned of the failure in service of the indictment they did not support the conviction when it was appealed.143 Pleas in bar of trial Nonage Section 41 of the 1995 Act provides that it shall be conclusively presumed that a child aged less than eight cannot be guilty of any crime. Accordingly, it is a valid objection to trial that the accused is below that age. Section 41A provides that a child under twelve may not be prosecuted for any offence and that a person aged twelve years or more may not be prosecuted for an offence which was committed when that person was under twelve. Unfitness for trial The law in relation to mentally disordered persons who are accused or convicted of crime is set out (without much clarity) in Part VI of the 1995 Act. Much of it is outside the scope of an introductory textbook. We are concerned here with section 53F, which provides that a person is unfit for trial if it is established on the balance of probabilities that the person 142

1961 SC 370. As reported, the case is concerned with the accused’s (unsuccessful) attempt to get damages against the procurator fiscal and others in respect of his conviction.

143

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is incapable, by reason of a mental or physical condition, of participating effectively in a trial. In determining whether the person is unfit for trial, the court is required to have regard to the ability of the person to: (i) understand the nature of the charge; (ii) understand the requirement to tender a plea to the charge and the effect of such a plea; (iii) understand the purpose of and to follow the trial; (iv) understand the evidence that may be given against the person; and (v) instruct and otherwise communicate with his legal representatives. The section also requires the court to have regard to any other factor which it considers to be relevant. The hearing of a plea of unfitness for trial will usually focus on the psychiatric evidence. By section 54 of the 1995 Act, a court which finds an accused to be unfit for trial must do three things. First, it must make a finding to that effect and state the reasons for that finding. Secondly, it must discharge the trial diet and order that an examination of facts be held. And, thirdly, it must remand the accused in custody or on bail or, where the written or oral evidence of two medical practitioners satisfies the court that certain conditions are met about the availability of medical treatment for the person make a ‘temporary compulsion order’ which authorises the detention of the person in a specified hospital until after the examination of facts.144 The examination of facts is regulated by section 55. Its purpose is to determine, so far as possible, whether the accused actually did the act that constitutes the offence. The point of this is that it is perceived as unsatisfactory that a person who might in fact not have done what is alleged should nevertheless be subjected to compulsory hospitalisation simply because they are not fit to stand trial. A person who is not mentally disordered and who is found not to have done the act charged would, of course, be entitled to be acquitted and Parliament’s desire has been to place the mentally disordered person as nearly as possible in the same position as the sane. So far as possible, the rules of evidence and procedure at an examination of facts are to be as nearly as possible those applicable in respect of a trial.145 However, those rules inevitably require some modifications, the first and most obvious of which is that, where the accused is not already legally represented the court must appoint counsel or a solicitor to represent their 144

1995 Act s. 54(1)(c) and (2B). 1995 Act s. 55(6).

145

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interests.146 It is axiomatic, of course, that a person who has been found to be unfit for trial cannot do so for themselves. The other significant alteration to the usual rules is made by section 55(5), which allows the court to order that an examination of facts shall proceed in the absence of the accused if it is not ‘practical or appropriate’ for them to attend. At the examination of the facts the court must, on the basis of evidence, determine whether it is satisfied beyond reasonable doubt that the accused did the act or made the omission constituting the offence. It must also determine whether it is satisfied on the balance of probabilities that there are no grounds for acquitting the accused.147 If it is not so satisfied – in other words, if it is not proved that the accused did the relevant act or if there is a ground for acquittal – the court must acquit the accused of the charge. However, by section 55(4), if the court holds that the accused did the act charged but acquits them on the ground that they were not criminally responsible for conduct if they were, at the time, unable by reason of mental disorder to appreciate the nature or wrongfulness of the conduct,148 the court makes a compulsion order in the same way as if the accused had been found to be unfit for trial.149 In a case where the accused is found to be unfit for trial and is not acquitted at the examination of facts the court may, if it thinks fit (and provided the particular detailed conditions for the making of whatever order the court is considering are satisfied) proceed in one of the ways set out in section 57(2) of the 1995. These are: (i)

Make a compulsion order authorising the detention of the person in hospital for six months150; this may be combined with a restriction order in terms of section 59, which applies special restrictions in terms of Part 10 of the Mental Health (Care and Treatment) (Scotland) Act 2003, in which case the compulsion order is without limit of time.151 (ii) Make an interim compulsion order, which authorises the detention of the person in hospital for twelve weeks.152 (iii) Make a guardianship order, which places the person under the guardianship of the local authority, as if the order had been made under the Adults with Incapacity (Scotland) Act 2000.153

146

1995 Act s. 56(3). 1995 Act s. 55(1). 148 1995 Act s. 51A. 149 1995 Act s. 57. 150 1995 Act s. 57A(2). 151 1995 Act s. 57A(7). 152 1995 Act s. 53(8). 153 1995 Act s. 58(1A). 147

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(iv) Make a supervision and treatment order in terms of Schedule 4 to the 1995 Act. (v) Make no order. There are cases in which a person who has been found to be insane in bar of trial (or unfit) subsequently recovers. In such cases, it is open to the Crown to reactivate the prosecution, upon the basis that it is in the public interest to have guilt or innocence determined by a proper trial. Accordingly, the 1995 Act section 56(7) provides that, where a finding has been made that the accused did the act or made the omission constituting the offence and that person is subsequently charged with an offence arising out of the same act or omission, any order made under section 57(2) shall cease to have effect. Double jeopardy Section 1 of the Double Jeopardy (Scotland) Act 2011 (the 2011 Act) applies where a person has been convicted or acquitted of an offence. It does not matter whether the proceedings were on indictment or on complaint. The section provides that it is not competent to charge that person with: (a) that offence (the 2011 Act calls it ‘the original offence’); (b) any other offence of which it would have been competent to convict the person on the original indictment or complaint154 (so, for example, an earlier verdict on a trial for murder will bar subsequent prosecution for attempted murder, culpable homicide, assault, etc.); or (c) an offence which arises out of the same, or largely the same acts or omissions as gave rise to the original indictment or complaint and is an aggravated way of committing the original offence (so, for example, a previous conviction or acquittal of assault will bar a subsequent prosecution for assault to severe injury). This is a statutory expression of the much older ‘res judicata’ or ‘tholed assize’ rule. In Hilson v Easson155 Lord Ormidale said that the essence of that plea is: ‘that the person tendering it has already been brought to trial by the prosecutor and has then stood his trial for, or pleaded guilty of a specific offence duly set out in an indictment or other competent form of complaint’.

The statutory rule is, however, narrower. 154

See the material on alternative verdicts at p. 232. 1914 SC (J) 99.

155

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Section 7(2) of the 2011 Act permits a person to aver, as a plea in bar of trial, that the offence arises out of the same, or largely the same, acts or omissions as have already given rise to the person being tried for, and convicted or acquitted of, an offence. By subsection (3), the court must sustain the plea if satisfied on the balance of probabilities of the truth of that averment. That is not as clear cut as it might seem because subsection (4) provides that the court ‘may’ repel the plea, despite being satisfied in terms of subsection (3), if persuaded by the prosecutor that there is ‘some special reason’ why the case should proceed to trial and the court determines that it is in the interests of justice to do so. The phrase ‘some special reason’ is not explained further in the 2011 Act and has not been considered by the courts. As to the phrase ‘the same, or largely the same’, the limits appear to be set by Kerr v HM Advocate156 in which it was held that prosecution for lewd and libidinous practices and behaviour (with a not guilty plea being accepted) did not bar prosecution for sodomy on the basis that the later charge arose out of different acts and that the link between the criminal acts was not inextricable. There are exceptions beyond section 7(4). They are set out in considerable detail and the prosecution must meet a series of criteria before being allowed to proceed. The exceptions are, however, rarely encountered in practice and they are, therefore, not dealt with in detail here. In summary, The High Court can set aside an acquittal: (a) where the original acquittal was tainted by an offence against the course of justice (such as interference with a juror)157; (b) where the accused admits the offence after being acquitted or turns out to have admitted it before being acquitted but that admission was not known about until after the acquittal158; or (c) where there is new evidence that the person committed the offence.159 In HM Advocate v Auld160 the High Court held that any statement relied upon as an admission required to be such as could fairly and reasonably be construed as an admission that the individual had committed the offence and the context in which the statement had been made was a vital 156

2015 JC 32. 2011 Act s. 2. 158 2011 Act s. 3. For an example, see HM Advocate v Coulter 2017 JC 115. 159 2011 Act s. 4. 160 2016 SCCR 159. 157

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consideration. In that case, after his acquittal on a not proven verdict, the accused had made enigmatic responses to questions. They were held not to be enough. There is specific provision about new evidence or subsequent admissions in murder cases in section 8. Subject to certain conditions, section 11 authorises a prosecution for murder where a person has been convicted or acquitted of an offence involving physical injury to another person and that other person subsequently dies.161 Finally, sections 9 and 12 deal with the possibility that the previous trial was a nullity. In terms of section 9, the prosecutor can answer a plea in bar in terms of section 1 by asserting that the previous trial was a nullity and section 12 empowers the prosecutor to take the initiative and apply to prosecute anew on the ground that the previous trial was a nullity. Under both sections, the decision can only be taken by the High Court. Mora Mora is concerned with delay. The court has an inherent jurisdiction to refuse to deal with a prosecution, whether under solemn procedure or summary procedure, which has become oppressive as a result of delay. The law was reviewed by a full bench in McFadyen v Annan,162 in which the Lord Justice-Clerk (Ross) said that: ‘What the Court has to ask itself is if the delay, whether caused by the Crown or not, has been such as to prejudice the prospects of a fair trial . . . the real question which the Court has to consider in all cases where delay is alleged is whether the delay has prejudiced the prospects of a fair trial. This involves the Court asking itself whether the risk of prejudice from the delay is so grave that no direction by the trial judge could be expected to remove it. In the case of summary procedure the question must be whether the risk of prejudice from the delay is so grave that the sheriff or justice could not be expected to put that prejudice out of his mind and reach a fair verdict.’

The Appeal Court considered the issue further in Normand v Rooney163 and observed that the question of ‘putting the prejudice out of one’s mind’ required some explanation. The Lord Justice-General (Hope) formulated the test, in a summary prosecution, as being ‘whether the prejudice is so grave that no Sheriff or Justice could be expected to reach a fair verdict in all the circumstances’. This, it is suggested, recognises the particular nature of 161

For an example and discussion, see HM Advocate v Gilmour 2020 SCCR 1. 1992 SCCR 186. 163 1992 SCCR 336. 162

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the prejudice rather better, especially when the Lord Justice-General went on to say: ‘I see no reason to doubt on this information that the Sheriff who hears the evidence at the trial will be able to arrive at a fair verdict, after making such allowance as may be appropriate for any disadvantage which the respondent may suffer due to the lapse of time which has occurred.’

This has to be seen in light of article 6.1 ECHR which requires that, in the determination of a criminal charge against them, everyone is entitled to a hearing within a reasonable time. For several years after the entry into force of the HRA 1998 and section 57 of the Scotland Act 1998 there was substantial activity around this issue but in Spiers v Ruddy164 the Judicial Committee of the Privy Council held that an indictment should only be dismissed on this ground where the delay has created a situation which makes fair trial impossible. In other cases, the delay can be cured by expedition, a reduction in sentence or by compensation. Preliminary issues Section 79(2) lists the preliminary issues. They are: (i) (ii) (iii) (iv) (v)

An application for separation or conjunction of trials; Preliminary objections under specified sections of the Act . . . An objection to the admissibility of any evidence; An assertion by a party that there are documents the truth of the contents of which ought to be admitted; (vi) Any other point raised by a party which could, in his opinion, be resolved with advantage before the trial. Section 271Q adds applications for witness anonymity orders. Separation or conjunction of charges or trials It is fundamental that the trial must be fair and it is arguable that if some combinations of unrelated charges appear on the indictment the mere presentation of the combination to the court will be so prejudicial that the Crown should not be permitted to proceed to trial upon all of them at once. This is the theory but it is rare that such an argument succeeds. In Brown v HM Advocate165 Lord Justice-General Hope said that: 164

2009 SC (PC) 1. 1992 SCCR 59.

165

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‘It is well settled that the combination in a single indictment of charges relating to different kinds of crime committed at different times in different places and circumstances does not of itself give rise to a material risk of prejudice to the accused, and it would not be appropriate on this ground alone for the charges to be separated . . . It is common ground that it is only where a material risk of real prejudice can be demonstrated that the granting of a motion to separate charges can be justified.’

In Brown the fact that the accused would need to attack the character of Crown witnesses on some of the charges (thus exposing himself to the risk that his own criminal record would be in issue) was held not to be a sufficient ground for separating charges, since the trial judge would have a discretion whether or not to allow his record to be put in issue. That judge could take the risk of prejudice into account in so deciding. Separation of trials is a related matter and arises where there are multiple accused. The starting point is that it has been recognised since at least HM Advocate v Parker and Barrie166 that related offences committed by two or more persons should in general be tried together. Separation is possible, but Lord Moncrieff said in Robt. Turner167 that ‘[i]t generally requires some specification of peculiar circumstances to render it necessary or desirable’. Slightly more recently, in Gemmell and McFadyen v MacNiven,168 the Lord Justice-General said: ‘Persons accused of the joint commission of a crime have no right to insist on a separation of trials; and there is nothing oppressive in refusing a separation, unless it is asked for on some ground which goes to the conditions of a fair trial.’

The conjoining of charges or trials against separate accused persons is very rare but it is possible that by proceeding separately against accused persons for an offence that they are alleged to have committed in concert the Crown may bring about unfairness and in such circumstances such a motion may be made. Preliminary objections under specified provisions There are several important legislative provisions which provide that a matter is to be treated as established unless a preliminary challenge is made. Section 79(3A) lists such provisions which must be made the subject of a notice raising a preliminary issue. They include the fact that the person was 166

(1888) 2 White 79. (1881) 18 SLR 491. 168 1928 JC 5. 167

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on bail at the time the offence is alleged to have been committed; the age of a person where that is specified in an indictment or complaint169; the fact that a person charged with breaching an antisocial behaviour order is subject to that order; the terms of release by the police on undertaking170; and the fact that the complainer was the partner or ex-partner of the accused where the aggravation under the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 is charged or where the accused is charged with an offence under section 1 of the Domestic Abuse (Scotland) Act 2018. Special capacities Section 79(3A) also applies to section 255 of the 1995 Act, which deals with the fact that certain crimes can only be committed by a person who possesses a particular qualification, such as being the holder of a licence, the master of a vessel or the occupier of a house. In terms of section 255 such ‘special capacities’ are held to be admitted unless challenged. As a general rule, a special capacity exists in any statutory offence where the prosecutor would otherwise have to prove the capacity as part of the proof of the case. As the Appeal Court put it in Smith v Allan,171 ‘[w]e are of opinion that “any special capacity” . . . applies to all persons who are specifically charged in a particular capacity with committing an offence which can only be committed by persons in that special capacity’. An example of the practical effect of this is to be found in White v Allan,172 in which the special capacity (that of being a prostitute in relation to a charge of importuning under section 46(1) of the Civic Government (Scotland) Act 1982) was challenged and, since the Crown failed to lead any evidence to prove that capacity, the accused was acquitted. Perhaps the commonest special capacity is that of being disqualified for holding or obtaining a driving licence, and this is relevant to a charge of driving whilst disqualified. In Paton v Lees173 the High Court held on appeal that to be disqualified by order of the court is to possess a special capacity and in Smith v Allan it was held that to be disqualified by reason of age is also to possess such a capacity. Special capacities do not apply to common law crimes. Such crimes can be committed by anyone at all and not only by those possessing particular qualifications. 169

For example, this is likely to be relevant to alleged contraventions of some sections of the Sexual Offences (Scotland) Act 2009 and to certain licensing offences. 170 See p. 36. 171 1985 SCCR 190. 172 1985 SCCR 85. 173 1992 SCCR 212.

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Objections to admissibility of evidence In terms of the disclosure regime, the Crown ought to provide the defence with copies of the statements of the Crown witnesses and in terms of section 68(2) of the 1995 Act, the accused is entitled to see the productions in the hands of the sheriff clerk or Clerk of Justiciary.174 Consideration of that material sometimes enables the defence to identify evidence which they consider to be inadmissible. It might be that consideration of the notices lodged by the defence will enable the Crown to identify defence material which they consider to be inadmissible, though this is rare. We noted above that, in Thompson v Crowe,175 it was established that, where the fairness of a police interview is challenged, it is for the Crown to satisfy the judge that the interview was fair. It might be that there is an objection to the admissibility of the results of a search or of surveillance. There are many other possibilities. If notice is not given of these objections as required by sections 71(2) and 72(6)(b)(i), then unless leave is given for them to be dealt with late, section 79(1) prevents them being raised at all. Admissions as to documents and other matters Section 79(2)(b)(v) provides that an assertion by a party that there are documents, the truth of the contents of which ought to be admitted, or that there is any other matter which ought to be agreed. The Crown has occasionally used this provision, with varying success, to try to force the hand of the defence in relation to apparently non-contentious evidence in fraud trials. Applications for witness anonymity orders Section 271N of the 1995 Act empowers courts to make orders for special measures to ensure that the identity of a witness is not disclosed in connection with the proceedings. The measures available include: (a) that the witness’s name and other identifying details may be— (i) withheld, (ii) removed from materials disclosed to any party to the proceedings, (b) that the witness may use a pseudonym, (c) that the witness is not asked questions of any specified description that might lead to the identification of the witness, (d) that the witness is screened to any specified extent, (e) that the witness’s voice is subjected to modulation to any specified extent. 174

In practice, the Crown usually provide copies. 1999 SCCR 1003.

175

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The conditions for making orders are set out in section 271R(2)–(7) and are expressed in a complicated way. They can be summarised (and slightly reordered to help explanation) as follows. The first condition is that the proposed order is necessary to protect the safety of the witness or another person, to prevent any serious damage to property or to prevent real harm to the public interest. The next condition is that the witness would not testify if the proposed order were not made, or that there would be real harm to the public interest if the witness were to testify without the proposed order being made. The remaining conditions are that, having regard to all the circumstances, the effect of the proposed order would be consistent with the accused’s receiving a fair trial and that the importance of the witness’s testimony is such that in the interests of justice the witness ought to testify. In deciding whether the measures are necessary, the court must have regard in particular to any reasonable fear on the part of the witness that the witness or another person would suffer death or injury, or that there would be serious damage to property, if the witness were to be identified. Section 271 provides that, when deciding whether the conditions are met the court must have regard to (amongst other things) the general right of an accused in criminal proceedings to know the identity of a witness in the proceedings. This resonates with Van Mechelen v The Netherlands176 in which the European Court of Human Rights, whilst recognising that, in principle, it may be legitimate for the police authorities to wish to preserve the anonymity of an agent deployed in undercover activities, for their own or their family’s protection and so as not to impair their usefulness for future operations, observed that the balancing of the interests of the defence against arguments in favour of maintaining the anonymity of witnesses raises special problems if the witnesses in question are members of the police force of the State. They owe a general duty of obedience to the State’s executive authorities and usually have links with the prosecution. For these reasons, the Court said, their use as anonymous witnesses should be resorted to only in exceptional circumstances. There is only one reported decision on witness anonymity orders in Scotland. That decision is Nisbet v JR and SAR.177 Since it is a sheriff court decision taken by the present writer and upheld on appeal without any opinion being issued by the Appeal Court, it is offered here with some diffidence178; but it is, at present, all that exists.

176

(1998) 25 EHRR 647. 2014 SCCR 18. 178 Some of the reasoning was questioned in an article, CM Shead, ‘Witness Anonymity Orders and Undercover Policing’, S.C.L. May 2017, pp. 425–433. 177

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The analysis made of the law in that case is that, in providing that the court ‘may’ make a witness anonymity order, section 271N confers a discretion and indicates a three-stage process. In the first stage, the court must decide whether the circumstances entitle it to exercise the discretion. In applications for witness anonymity orders, that decision is governed by section 271R. In the second stage, having decided that the circumstances do entitle the court to exercise the discretion, the court must decide whether it should exercise the discretion in favour of making the order sought. In the third stage, having decided that it can and should make an order, the court must decide what measures it is appropriate to specify in the order that is to be made. In Nisbet v JR and SAR, influenced by criticism which the European Court of Human Rights made in Van Mechelen of the inadequacy of the domestic court’s scrutiny of the necessity for the order, the decision was that it was not enough for the Crown to assert that there was a need to protect the identities of the witnesses. Information must be provided which enables the court to form its own opinion that there is an actual risk in the particular case. There must be a basis for characterising the circumstances as exceptional. These hurdles might be overcome without particular difficulty in a case which involves a charge of serious criminality and which involves evidence about actual covert human intelligence activity but the court was not dealing with that sort of case. The application was refused.

Written record Section 71C of the 1995 Act provides, in relation to a sheriff court case, that the prosecutor and the accused’s legal representative must communicate with each other and jointly prepare a written record of their state of preparation with respect to their cases, within fourteen days of service of the indictment. It must be lodged not later than two court days before the first diet.179 For the High Court, section 72E makes the same provision, except that communication must take place not less than two days before the preliminary hearing.180 In practice, at least in the sheriff court, each side prepares and submits its part of the written record separately. The procedure loses some of its effect as a result of that but, even then, the submission of the written record makes it possible for the judge who is to preside at the preliminary hearing or first diet to prepare for that hearing.

179

Criminal Procedure Rules Sch. 2 r. 9.3A(2). The form required is provided for by Criminal Procedure Rules Sch. 2 r. 9A.4.

180

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130 Criminal Evidence and Procedure: An Introduction

The written record must take the form prescribed by the Criminal Procedure Rules181 and contain the information required by that form. The form begins by asking whether a plea of guilty has been accepted. If it has, the remainder of the form need not be completed. It then goes on to ask about communication between the parties, preliminary issues, objections to the admissibility of evidence, other applications, other matters which might be disposed of with advantage before the trial (such as compatibility or devolution minutes, section 67 notices or applications for the recovery of documents), agreement of evidence, which witnesses will be required, how long the trial is likely to take, what equipment will be needed at trial (e.g. to play DVDs containing recordings of events) and whether an interpreter will be required. Fundamentally, it asks whether the parties are ready to proceed to trial.

Chapter overview • Prosecution on indictment is subject to time limits: If the accused is in custody, the indictment must be served within eighty days of full committal, otherwise they are entitled to bail. If the accused is in custody, the preliminary hearing or first diet must commence within 110 days of full committal, otherwise they are entitled to bail. If the accused is in custody, the trial must start within 140 days of full committal, otherwise they are entitled to bail. Whether the accused is in custody or on bail, the preliminary hearing or first diet must commence within eleven months of first appearance on petition, otherwise the prosecution cannot proceed further on indictment. Whether the accused is in custody or on bail, the trial must commence within twelve months of first appearance on petition, otherwise the prosecution cannot proceed further on indictment. • The time limits can be extended on cause shown, on the application of a two-stage test: Has sufficient reason been shown which might justify the grant of an extension? Ought the court, in all the relevant circumstances, to grant the extension.

181

For the sheriff court, form 9.3A is prescribed by Sch. 2 r. 9.3A and, for the High Court, form 9A.4 is prescribed by Sch. 2 r. 9A.4.

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• Where the accused appears on petition or on indictment or pleads not guilty to a summary complaint, the prosecutor must disclose to the defence any information which would: materially weaken or undermine the prosecution case; materially strengthen the accused’s case; or be likely to form part of the prosecution case. • Where the accused has lodged a defence statement and considers that the prosecutor has failed, in responding to it, to disclose disclosable information, they may apply to the court for a ruling about whether the information is disclosable. • At any time after they appear on petition, the accused can intimate in terms of section 76 of the Criminal Procedure (Scotland) Act 1995 that they intend to plead guilty. • The indictment sets out the charges, the list of witnesses and the list of productions. • The charge must be relevant and specific. • Relevancy means that the charge must set out a crime known to the law. • Specification means that the charge must give fair notice of the allegation and that means it must be specific as to date, place and mode. • Where the charge is of a statutory offence it will be enough to describe the offence in the words of the statute, provided that it tells the defence what the prosecution is seeking to establish. • A charge may be aggravated by: The accused having been on bail at the time of its commission. Domestic abuse. Prejudice. • The prosecutor can ask the court to allow the indictment to be amended at any time prior to the determination of the case but amendment to cure a fundamental nullity in the indictment is not permitted. • The list of witnesses specifies all witnesses the prosecution might call; they cannot call any witness not listed unless they serve notice under section 67 of the Criminal Procedure (Scotland) Act 1995 and the court grants leave. • Productions are treated in two categories: labelled and documentary. Labelled productions are objects necessary for proving the case. Documentary productions are documents the content of which is necessary for proving the case. • Between service of the indictment and the preliminary hearing or first diet, the defence must, within the time limits specified (which are different as between the High Court and the sheriff court): Lodge a defence statement in terms of the disclosure rules. Give written notice of any compatibility issue which they wish to raise.

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• •

•

•

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Lodge notice of any special defence on which the accuse wishes to rely. Lodge lists of defence witnesses and defence productions. If either side wishes to raise a preliminary plea or preliminary issue, notice must be given. Preliminary pleas are: Matters relating to the competency or relevancy of the indictment. Objections to the validity of citation. Pleas in bar of trial, that is: nonage, unfitness for trial, double jeopardy, mora. Preliminary issues are: Any application for separation or conjunction of trials. Preliminary objections under specified sections of the Criminal Procedure (Scotland) Act 1995, for example, a challenge to an allegation that the accused was on bail or to their possession of a special capacity. Any objection to the admissibility of evidence. An assertion that there are documents the truth of the contents of which ought to be admitted. Any other point which could be resolved with advantage. Applications for witness anonymity orders. The parties must prepare and lodge a joint written record of their state of preparation.

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Chapter eight

Preliminary Hearings and First Diets

Preliminary hearings and first diets are governed (principally) by sections 72 and 71 of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) respectively. For the sheriff court, section 71 sets out a list of matters to which the court must attend. For the High Court, section 72 sets out the same list and prescribes the order in which the court will attend to its contents. We follow that order here.

Is the accused allowed to conduct their defence personally The court must attend, first, to whether the case is one in which the accused is not to be allowed to conduct their defence personally. That applies to the sexual offences listed in the 1995 Act section 288C, to the domestic abuse offences covered by section 288DC, to cases of murder, culpable homicide, assault, abduction and plagium at which a child under the age of twelve is to give evidence1 and to cases involving vulnerable witnesses in which the court has prohibited the accused from conducting their case in person.2 In such cases, the court must ascertain whether the accused has engaged a solicitor to conduct the case.3 The question only arises in practice in the minority of cases in which the accused is not represented at the preliminary hearing or first diet by counsel or a solicitor. Where the court is not satisfied that the accused intends to engage a solicitor it must, at its own hand, appoint one.4 The accused cannot dismiss that solicitor and the solicitor is not obliged to follow the accused’s instructions.5

1

1995 Act s. 288E. 1995 Act s. 288F(2). 3 1995 Act s. 71(A1); s. 72(2). 4 1995 Act s. 288D(2). 5 1995 Act s. 288D(3). 2

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Preliminary pleas The court must then dispose of any preliminary plea of which the proper notice has been given.6 It will be recalled that preliminary pleas are matters relating to the competency or relevancy of the indictment, objections to the validity of citation and pleas in bar of trial.7 Some of these matters need evidence (the most obvious being pleas in bar of trial relating to double jeopardy) but matters such as the relevancy of the indictment can usually be dealt with then and there at the preliminary hearing or first diet. The judicial culture which is being encouraged by the High Court is that preliminary hearings and first diets should only be continued on to a different date where that is absolutely essential and the expectation is that anything which can be dealt with at once will be dealt with at once. In particular, as Lord Carloway pointed out in Murphy v HM Advocate,8 it is not competent to continue the first diet or preliminary hearing so as to allow a matter to be raised by notice: ‘The provisions which permit a further diet of preliminary hearing presuppose that prior notice of the issue has already been given, since it is only if a preliminary issue is already raised that there can be a further diet fixed to deal specifically with it.’

Recording the plea Having disposed of any preliminary pleas, the court must require the accused to state how they plead to the indictment. If a plea of guilty has been agreed, that will often involve acceptance by the Crown of not guilty pleas to some charges and/or some amendment of the charges on the indictment. In such a situation, the court proceeds to the sentencing phase, which is described below.9 It sometimes happens that the accused tenders a plea to some of the charges and that the Crown is willing to accept that plea in relation to those charges but wishes to go to trial on the other charges. That is the right of the prosecutor. The non-acceptance of the not guilty pleas is recorded10 and matters proceed towards a trial on those charges, with sentence being deferred in relation to charges to which a guilty plea has been accepted until the end of the trial. Sometimes, though, the prosecutor is not willing 6

See p. 116 above. See p. 117 above. 8 2012 SCCR 542. 9 See p. 235 below. 10 1995 Act s. 77(2). 7

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to accept even the guilty pleas (usually because to do so would mean that those charges were not before the jury and would limit the evidence which the Crown could lead). In that event, the offering of the plea is recorded in the court minutes and if, at the end of the day, those are the only charges of which the accused is convicted, the defence will rely on that for sentence discounting purposes.11

Preliminary issues Once the plea has been stated, the court must deal with preliminary issues, vulnerable witness notices and applications, applications under sections 275 or 288F(2) and ‘any other matter which could be disposed of with advantage before the trial’. This last is a catch-all and offers an opportunity to deal with any legal or practical issues (for example, timetabling of witnesses) which can be resolved at this stage. The law about vulnerable witnesses and about section 275 (which is part of the framework within which trials about sexual offences are conducted) is dealt with in the next chapter. Preliminary issues have been discussed above.12 They include objections to the admissibility of evidence, some of which will involve disputed facts. In those cases, unless the relevant witnesses have been brought to court for the first diet or preliminary hearing (which would be unusual), consideration of the objection is continued to a further diet13 at which the evidence is led and a decision reached. Any doubt about whether such a continuation for evidence is competent was dispelled by Wright v HM Advocate,14 in which the Appeal Court rejected an argument that a sheriff who was presented with a minute challenging the admissibility of evidence of an identification parade was obliged to decide it then and there at the first diet without a continuation for evidence.

Other objections to the admissibility of evidence The next matter with which the court is required to deal is any objection to the admissibility of evidence which a party wishes to raise despite not having given the notice required. If there is, the court must, first, consider whether to grant leave to raise the matter under section 79(1). We have

11

See p. 241 below. See p. 124. 13 1995 Act ss. 71(2ZA) and 72(9). 14 2006 SCCR 455. 12

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already noted what that says. Leave can only be granted on cause shown. Delaying the lodging of a minute raising the issue is not a good cause why leave should be granted.15 In a case in which leave to raise an objection is granted under section 79(1), the procedure followed is the same as that in a case in which proper notice has been given.16

Which witnesses are required The court is then required to ascertain which of the witnesses in the list of witnesses are required, by either side, to attend the trial. There are two reasons for this. First, the defence are entitled to call witnesses listed by the Crown (and by any co-accused)17 and to assume that Crown witnesses will be available at the trial, so the Crown should not excuse witnesses without the agreement of the defence.18 Secondly, the court will have to decide how much time to allow for the trial and, whilst parties are asked for their estimates, those estimates are not always reliable and knowing how many witnesses are to be called helps to inform programming.

State of preparation Next, the court must ascertain the state of preparation of the parties with regard to their cases. In practice, this does not involve detailed enquiry about what preparation has been done. It does involve the parties answering a question in the written record about their state of preparation and this offers a chance for the court to deal (if it can) with any problems that have been encountered. The most common problem in practice is a failure on the part of the Crown to give the defence proper disclosure. That is often due to administrative mistakes and the raising of the matter in court prompts the prosecutor in court to undertake to get the matter sorted out.

Agreement of facts by joint minute Next, the court is required to ascertain, so far as reasonably practicable, the extent to which the parties have complied with their duties under section 257(1) of the 1995 Act. That section imposes on the parties a 15

Radic v HM Advocate [2014] HCJAC 76. See p. 116. 17 1995 Act s. 67(6). 18 Dickson v HM Advocate 1980 SLT (News) 265. 16

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duty to identify facts that each is seeking to prove, which are unlikely to be disputed by the other parties and about which they do not wish to lead evidence. The section requires the parties to take all reasonable steps to agree the facts. Facts are agreed by joint minute in terms of section 256(2)(b) of the 1995 Act. The joint minute is tendered to the court and read to the jury, who are directed that they must accept the facts agreed in it as given and that they need not – indeed, they must not – consider whether those facts are established. It is best if the joint minute is completed and signed before the first diet or preliminary hearing so that it can be shown to the court at that stage. These provisions deal with agreement of facts. They are headed ‘agreement of evidence’ and that is misleading. It is common to see joint minutes which purport to agree what witnesses saw or heard. That is incorrect. Facts can be treated as established but evidence needs to be assessed. So, for example, it would be correct to agree that ‘at about 2300 hours on [date] Dennis Menace was driving motor car registered mark AB69 CDE northwards on the Tay Road Bridge’ but incorrect to narrate that a named witness saw him doing so. The issue was the subject of comment in Liddle v HM Advocate19 in which a joint minute agreed that a report was a ‘true and accurate record’ of an identification parade. One sees a similar approach to all sorts of reports, including, in particular, forensic science reports. A related form of error is a joint minute which agrees that a doctor – or other expert – formed a particular opinion without agreeing that the opinion was right. This presents real difficulties in charging the jury. In Liddle, Lord Carloway explained the position clearly: ‘Agreeing that a report is a ‘true and accurate record’ of an identification parade is generally a pointless exercise . . . An agreement about the veracity of a document recording an event is of no value if the relevant part of the document is not then read to the jury so that its import can be understood. If there is to be an agreement about what took place at a parade, and in particular that an identification did, or did not, take place, the proper way of doing that is to agree the fact, not simply the veracity or reliability of the document . . . In short, if it is intended to agree a fact then that fact should be stated in clear terms and the terms stating that fact should be read to the jury.’

Statements of uncontroversial evidence Section 258 makes provision for statements of uncontroversial evidence, in terms of which a party may serve on the other party a statement of facts 19

2012 SCCR 478.

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thought to be unlikely to be disputed. If the statement is not challenged within seven days of service, the facts specified are deemed to be conclusively proved. A statement that is not challenged is dealt with at trial in the same way as a joint minute.

Other matters The court must dispose of any other matter which, in its opinion, can be disposed of with advantage before the trial. It is common for notices under section 67 of the 1995 Act, adding witnesses or productions, to be considered at this stage. This is also the opportunity to deal with applications under section 128 of the Criminal Justice and Licensing (Scotland) Act 2010 for orders about whether material is disclosable.

Appeals Section 74 of the 1995 Act makes provision for appeals from some (but not all) decisions taken at first diets and preliminary hearings. Except for a decision to dismiss an indictment or any part of it, an appeal can only be taken with leave of the court,20 which should be asked for at once, and must be ‘taken’ by lodging a note of appeal with the clerk within seven days of the decision.21 Leave will not be granted automatically or even easily. In Haashi v HM Advocate22 the Lord Justice-Clerk (Carloway) counselled care when determining whether leave to appeal from a preliminary decision should be granted, especially where the decision has been a discretionary one or one primarily for the judgment of a first instance court, depending upon particular facts and circumstances, rather than one involving a point of law. He said that this is because an appeal at the preliminary stage will inevitably disturb the standard procedure leading to trial and so leave should not normally be granted unless the court is satisfied that the appeal has a realistic prospect of success and that it is in the interests of justice that the point taken be resolved at that stage rather than being advanced (if still relevant) after the trial. In other words, it is better to get on with the trial and take the appeal after any conviction. At that stage, some appeals will not be needed at all (because the accused has been acquitted) and all appeal points relating to a case can be dealt with at one time instead of the case going 20

1975 Act s. 74(2A)(b). 1975 Act s. 74(2)(b); Criminal Procedure Rules r. 9.6. 22 2015 JC 4. 21

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to the appeal court both after the first diet or preliminary hearing and also after a conviction at trial.

Fixing the trial Having done all of the things required by section 71 or section 72, the court must appoint a trial diet.23 If the court considers that the case will be ready for trial within the twelve-month period which applies to all cases in terms of section 65(1)(b),24 the trial must be fixed within that period. If the court considers that it would not be likely to be ready within that time, the Crown must be given an opportunity to seek an extension.25 Where the accused is in custody and the 140-day time limit applies26 the trial must be fixed within that period, failing which the Crown must be given the chance to apply for an extension.27 There is a subtle difference in the law relating to trial diets as between the High Court and the sheriff court. In the High Court, trials are, in practice, almost always appointed to ‘floating’ diets within the meaning of section 83A of the 1995 Act. That means that if the trial does not commence on the date fixed it can be continued from day to day for up to four days28 thereafter and can start on any day to which it is so continued. In the sheriff court, there are no ‘floating’ diets and the first diet court will fix a trial of a specified day. Nevertheless, if on that day the trial does not commence it may be continued from day to day in terms of section 83B, also for up to four days.29

Chapter overview • At a first diet or preliminary hearing, the court is concerned with: Whether the accused can be allowed to conduct their case personally – in most sexual offence cases, domestic abuse cases and in cases of murder, culpable homicide, assault and plagium in which a child under twelve is to give evidence, they cannot. Disposing of any preliminary plea. 23

1995 Act ss. 71B and 72A. See p. 82. 25 1995 Act ss. 71B(3) and 72A(3). For the considerations relevant to extensions, see p. 83. 26 See p. 81. 27 1995 Act ss. 71B(6) and 72A(6). 28 Criminal Procedure Rules r. 12.7(2). 29 Also Criminal Procedure Rules r. 12.7(2). 24

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140 Criminal Evidence and Procedure: An Introduction

Recording the accused’s plea of guilty or not guilty. If they plead guilty and that is accepted by the Crown, the court proceeds to the sentencing stage. Dealing with any preliminary issues. Dealing with applications for leave to object to the admissibility of evidence despite not having given notice. Ascertaining which witnesses are required. Ascertaining the state of preparation of the parties. Ascertaining the extent to which parties have complied with their duty to agree facts. Disposing of any other matter that can, with advantage, be dealt with before the trial. • Some decisions taken at first diets or preliminary hearings can be appealed but leave is required except where the court has dismissed all or part of an indictment. Leave will not be granted automatically or easily. • The final step at a first diet or preliminary hearing is to fix the trial.

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Chapter nine

Summary Proceedings from First Appearance to Trial

Although the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) defers all of the material relating to summary procedure until after it deals with trials under solemn procedure, a different approach is taken here. Trial procedure under solemn and summary procedure is sufficiently similar to be dealt with in a single chapter, with a large component dealing with those aspects of the law of evidence not already addressed. In the present chapter, we deal with the commencement of summary proceedings and the rules which apply to summary procedure up until the time of the commencement of the trial. There are many analogies with solemn procedure but there are also significant differences. In the first paragraph of Chapter One of this book, we noticed Trotter’s definition of summary criminal procedure ‘[c]riminal jurisdiction is exercised by summary procedure when the trial takes place before a judge or judges alone, without a jury, by summary and expeditious process, and without all the formalities and solemnities requisite in solemn procedure’.1 The judge or judges referred to are, following the Courts Reform (Scotland) Act 2014, JPs, summary sheriffs and sheriffs.

The complaint The ‘complaint’ is fundamental to summary criminal procedure. Section 138 of the 1995 Act provides that all proceedings under the summary part of the Act shall be instituted by complaint signed by the prosecutor or by a solicitor on behalf of a prosecutor other than the procurator fiscal. In Lowe v Bee2 it was held that failure to sign the complaint renders it fundamentally null and that a signature cannot be added by amendment. The complaint must be in the form set out in Schedule 5 to the 1995 Act (which is concerned with forms of charge) or in the form prescribed by the 1

T Trotter Summary Criminal Jurisdiction According to the Law of Scotland (1936) p. 3. 1989 SCCR 476.

2

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Act of Adjournal (Criminal Procedure Rules) 1996 (the Criminal Procedure Rules). Rule 16.1 gives effect to that by prescribing Form 16.1-A. It goes on to prescribe forms for other documents that must be served with the complaint. Those documents include the citation,3 a reply form,4 a means form5 and a notice of previous convictions.6 The citation tells the accused on what date and in which court their case will be first called. The law in relation to relevancy and specification in charges is the same under summary procedure as was described in relation to indictments7 except that the primary reference to forms of charge for summary procedure is to Schedule 5 to the 1995 Act. Nevertheless, Schedule 2, which deals with examples of charges in indictments, is also relevant to charges under summary procedure. The purpose of the charge, under summary procedure just as under solemn procedure, is to give fair notice of what the Crown alleges against the accused8 and Schedules 2 and 5 between them make it clear what the legislation regards as fair notice. Moreover, the particular rules about charges in Schedule 3, which were discussed in relation to indictments9 apply explicitly to summary complaints as well.10 The law in relation to aggravations and dockets is the same for summary procedure as for solemn.11 As to amendment of the complaint, and especially of the charge, section 159 of the 1995 Act is the direct equivalent of section 96 and is applied in the same way.12 Under summary procedure, although the law about what things have to be produced as part of proof is identical to that under solemn procedure,13 the prosecution does not serve any list of witnesses or productions with the complaint and the productions are not lodged with the clerk of court. However, the defence are entitled to information about those matters in terms of the disclosure regime. As to previous convictions, section 166A of the 1995 Act provides for summary procedure that, where a person is convicted, the court, in deciding on disposal, may have regard to any conviction or alternative disposal 3

Criminal Procedure Rules Form 16.1-B. Criminal Procedure Rules Form 16.1-C. 5 Criminal Procedure Rules Form 16.1-D. 6 Criminal Procedure Rules Form 16.1-E. 7 See p. 91. 8 See p. 92. 9 See p. 95. 10 1995 Act s. 138(4). 11 See p. 98. 12 See p. 102. 13 See p. 105. 4

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(fixed penalty, compensation offer by the procurator fiscal or a work order under section 303ZA of the 1995 Act) which occurred after the date of the offence being dealt with but before conviction. Each time the complaint is called in court the court fixes the date for the next time the complaint is to call. If on any such date it does not call, the whole proceedings fall,14 though the procurator fiscal can start the proceedings again with a fresh complaint. Failure by the prosecutor to comply with the requirements as to the reply form and the means form does not invalidate the complaint15; and, of course, if the accused appears from custody, the citation, reply form and means form are not relevant. If the charge is a sexual offence within section 288C or a domestic offence within section 288DC the accused must also be served with a form under section 146(3A) which (read short) tells them that they must be represented by a lawyer and cannot conduct the case themselves.

First appearance There are several ways in which an accused person can be brought before the court under summary procedure. He or she may be cited to appear. In terms of numbers of cases, this is the most common mechanism, especially in the JP court. The complaint and related forms are served on the accused either personally or by post. The accused either attends court on the date when the complaint is scheduled to call (which must, by section 140 of the 1995 Act be at least fortyeight hours after service unless the court fixes a shorter period16) or returns the reply form stating whether his or her plea is guilty or not guilty. If a solicitor has been consulted, the solicitor attends court on the person’s behalf or sends a letter or email stating the plea. Section 141 of the 1995 Act provides for a variety of ways in which service can be effected. Service may be to the accused personally; the citation may be left with someone at the accused’s residence or place of business; it may be left with someone on a vessel on which the accused is a master or member of the crew; if the accused is a company it may be left at their place of business; if the accused is a body of trustees, the citation may be left with any one of them who is resident in Scotland or with their solicitor in Scotland; it may be sent by recorded delivery post. If the accused is on 14

Hull v HM Advocate 1945 JC 83; Reynolds v Dyer 2002 SLT 295. Criminal Procedure Rules r. 16.3. 16 The fixing of a shorter period is unknown in the writer’s experience. 15

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144 Criminal Evidence and Procedure: An Introduction

bail in connection with the charges (which can happen where they have originally appeared on petition but the case has been reduced to summary procedure) section 25(3) of the 1995 Act provides for the service of documents at the domicile of citation. If the accused fails to appear in answer to a citation, by section 150(3) of the 1995 Act the court may grant warrant to apprehend them. Such warrants are not usually granted unless there is proof, in the form of a completed execution of citation, that the complaint was either served on the accused personally or served at their domicile of citation. The person may have been released by the police on an undertaking to appear.17 In that event, when he or she attends court, a copy complaint is served on them. The procurator fiscal may seek a warrant to apprehend or to cite the accused person because section 136 of the 1995 Act requires that summary proceedings in relation to certain offences must be commenced within six months after the contravention of the law occurred and after that, the prosecution becomes time-barred. Commencement of proceedings is deemed to take place on the date on which a warrant to apprehend or to cite the accused is granted, provided that the warrant is executed without undue delay.18 Accordingly, if the contravention which is alleged is within the scope of this provision and the six-month time bar is approaching, the procurator fiscal might seek a warrant, either to arrest or to cite to a diet which the court assigns, in order to take advantage of the rule that proceedings commence when that warrant is granted. The contraventions to which this applies are those which are triable only summarily and which consist of the contravention of any enactment (the rule has no application to common law offences), unless the enactment fixes a different time limit.19 Many offences are triable only summarily20 but the category of offence in relation to which this has, in the past, been most significant is drink-driving. The current practice of releasing those charged with such offences on undertaking to appear has meant that it is now very rare for the six-month time bar to be an issue. What amounts to undue delay depends on the particular circumstances and it may be necessary to lead evidence of the circumstances in order to 17

See p. 36 above. 1995 Act s. 136(3). 19 Some statutes provide that proceedings can be commenced within a particular time of sufficient evidence coming to the notice of the prosecutor and empower the prosecutor to certify what that date was. 20 See p. 18 above. 18

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determine the position. It is clear from McCartney v Tudhope21 that the onus of establishing that there has not been undue delay lies with the Crown. It has also been said in a number of cases, such as McNeillie v Walkingshaw,22 that the question is one of fact and degree for the sheriff and the appeal court will be slow to interfere. It is, however, clear that a delay that is attributable to the conduct of the accused is unlikely to be regarded as undue.23 The procurator fiscal may seek a warrant for the arrest of the person, not because of time bar considerations but because a warrant is needed for some other reason. A warrant to apprehend may be granted in terms of section 139(2) of the 1995 Act where it appears to the judge that it is expedient to do so. This arises most frequently where the accused’s whereabouts are unknown. Finally, a person who is in police custody must be brought before the court if they have either: (a) been arrested under a warrant to bring them before the court in connection with an offence of which they are officially accused; or (b) been arrested without warrant and, since being arrested, has been charged with an offence by a constable. That must happen, if practicable, before the end of the first day on which the court is sitting after the day they entered custody or as soon as practicable after that.24 This is a restatement of an earlier rule under reference to the changes which the Criminal Justice (Scotland) Act 2016 (the 2016 Act) made to the law of arrest. It was held in Robertson v MacDonald,25 in relation to that earlier rule, that failure to bring the accused before the court in this way does not vitiate any subsequent proceedings on the complaint, though it might give rise to civil damages. A copy of the complaint is given to the accused before they appear in court and they are given the chance to see a solicitor in the cells before they appear.

The first calling in summary procedure The complaint having been served, either upon the accused in custody or with a citation to appear on a particular day, the case will call in court. Procedure at the first calling is governed primarily by section 144(1) of the 1995 Act. By that subsection, where the accused is present at the first calling of the case in a summary prosecution and the complaint has been served on or read to them or they have legal assistance, they are to be asked to plead to the charge unless the court adjourns the case in terms of 21

1985 SCCR 373. 1990 SCCR 428. 23 See the facts of Young v McLeod 1993 SCCR 479. 24 2016 Act s. 21. 25 1992 SCCR 916. 22

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section 14526 to allow time for inquiry into the case or for other reasonable cause. Such adjournments are referred to as ‘continuation without plea’. The most obvious use of that, from the point of view of the defence, is to obtain an opportunity to get full instructions about the facts and advise the accused accordingly. However, legislation requires that some challenges to the prosecution position must be stated before the accused states their plea and provides that failure to do so prevents the accused pursuing that line. It is, therefore, important for the defence, especially in cases where the accused appears from custody, to be sure that they have assessed these matters correctly before tendering a plea and so they will sometimes seek a short continuation without plea to analyse the position outside the pressured environment of the custody court. Some of these preliminary matters might be seen as obvious. For example, if the accused wishes to state any challenge to the competency or relevancy of the complaint,27 they must do so before tendering any plea. If they fail to do so, section 144(5) prohibits them from stating any such challenge at any future diet in the case except with the leave of the court, which may be granted only on cause shown. Matters of competency and some aspects of relevancy are fundamental. No one should be called upon to plead to a charge which is before the court in an incompetent procedure or which fails the test of relevancy, in that it does not amount to a crime. If a challenge to competency or relevancy is made, it has to be articulated properly so that it can be recorded in the court minutes (an unspecified challenge to the competency does not tell the court what the point actually is) and then it has to be debated and determined. Most often, the case is continued without plea to a further hearing for any necessary evidence to be led or for the debate to take place. It is, however, open to the court to decide to deal with the matter then and there when the plea is stated and that is sometimes done where the point appears to be straightforward. It is, therefore, dangerous to assume that the matter will be continued automatically to debate at a later date. Other issues that must be raised before the accused tenders their plea to the complaint are less obvious. They have no real common themes which might alert a solicitor to the need for action and the formulae used vary. They include the following. In terms of section 255 of the 1995 Act the accused must state any challenge they make to an alleged special capacity28 by preliminary objection before 26

There is another, much less common, exception under section 145ZA where the court makes an assessment order in respect of the accused. 27 For these concepts, see p. 117 above. 28 See p. 126 for an explanation of special capacities.

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their plea is recorded, otherwise that capacity is held as admitted. There is no power in the statute for the court to allow such a challenge to be stated late. By section 27(4A) and (4B) of the 1995 Act, which operate where the complaint alleges that an offence was committed whilst the accused was on bail, the facts that the accused was on bail, that they were subject to any particular condition, that they failed to appear at a diet and that they were given due notice of a diet are all to be held as admitted unless challenged by preliminary objection before the accused’s plea is recorded. There is no power in the statute for the court to allow such a challenge to be stated late. By section 144(4), the accused must, before pleading, state any denial that they are the person charged by the police. Section 144(5) operates to bar the stating of any such denial thereafter except with leave on cause shown. It must be understood that the identification of the accused is always an issue at trial. Indeed forgetting to have the accused identified in the dock is the classic prosecutor’s mistake. If the accused is not identified as the perpetrator of the crime, usually by being pointed out in the dock, they must be acquitted. In limited circumstances, however, the prosecutor in a summary trial can derive assistance from section 280(9) of the 1995 Act under which there is a presumption that the person who appears for trial in answer to the complaint is the person charged by the police. Smith v Paterson29 was decided shortly after the statutory predecessor of that provision came into force and concerned a case in which the procurator fiscal depute did not ask the police to point out the accused but did take evidence that they had cautioned and charged the person they had seen committing an offence. It was held that the effect of the statutory presumption was precisely what it said and that the person answering the complaint is presumed to be the person charged; and that accordingly the sheriff erred in holding that identification of the accused in the court was essential.30 By section 7 of the Domestic Abuse (Scotland) Act 2018 and by section 1A of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016, the matter of a person being another person’s partner or ex-partner is to be taken as established according to the stating of the matter in the complaint unless challenged by preliminary objection before the plea is recorded or by later objection which the court can allow ‘in special circumstances’. In the 2018 Act that relationship is essential to the constitution of the offence and in the 2016 Act is relates to the aggravation for which section 1 provides.

29

1982 JC 125. And see also Hamilton v Ross 1992 SLT 384.

30

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Procedure on guilty plea Where the accused pleads guilty at the first calling (or after a debate, though a plea of guilty after debate is very rare) the court will proceed to sentence. Sentencing is dealt with in Chapter Ten below. For the remainder of this chapter we are concerned with the accused who pleads not guilty.

Withdrawal of guilty plea The court can allow a plea of guilty to a summary complaint to be withdrawn up to the point at which conviction and sentence are recorded, though some good reason will be required. The usual ground is that the plea was tendered by an unrepresented accused who misunderstood the position.31 An unpleasant surprise at the level of penalty imposed will not, however, normally be adequate, even where the accused was led by police officers to believe that the penalty would be significantly lower.32

Procedure on not guilty plea The starting point when a plea of not guilty is tendered is section 146 of the 1995 Act. In terms, the section applies where there is a straightforward plea of not guilty or where there is a plea of guilty to only part of the charge and the prosecutor does not accept the partial plea. Where there are several charges on the complaint and the accused pleads guilty to some but not to others the practice is to defer sentence on the charges to which they have pled guilty until the end of the trial on the other charges. In such a case, section 146 applies to these charges to which the accused has pled not guilty. Adjournment for trial By section 146(2) it is open to the court to proceed to trial at once unless either party moves for an adjournment and the court considers it expedient to grant it. In practice it almost never happens that the trial takes place immediately. Such a course is only taken in cases involving foreign nationals who are scheduled to leave the jurisdiction and whom it is not appropriate to keep in custody. The typical cases are those of the foreign lorry driver who is charged with offences in connection with their hours of work or record-keeping or the skipper of a foreign fishing 31

Frost v McGlennan 1998 SCCR 573. Whillans v Harvie 2010 SCCR 878.

32

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vessel alleged to have contravened the fisheries legislation and arrested by fisheries protection officers. In other cases, the Crown is unlikely to have witnesses immediately available and the defence will in any event want time to obtain legal aid and to prepare. Accordingly, it is section 146(3) that is usually operated and that section permits the court to adjourn the case for trial to as early a diet as is consistent with the just interest of both parties. Indeed, where the accused is in custody, section 146(4) gives them an absolute right to an adjournment for not less than forty-eight hours unless a shorter adjournment is necessary in order to obtain the evidence of witnesses who would otherwise not be available. Intermediate diet At the same time as it adjourns the case for trial, the court is entitled, by section 148, to fix what is known as an ‘intermediate diet’ between the first calling and the trial. That diet can be (and usually is) conjoined with the interim diet which section 148A requires in certain sexual and domestic abuse cases. The intermediate diet can be at any time but is usually between two and four weeks before the trial. By section 148(5) the accused is required to attend any intermediate diet of which they are given notice unless they are legally represented and the court considers that there are ‘exceptional’ circumstances justifying them not attending. There are two things to say about this. The first is that the fixing of an intermediate diet is a routine occurrence. Not to do so is a deliberate choice, usually made because a trial is being adjourned and the court is assured both that the parties are ready and that the case is very unlikely to resolve by the tendering and acceptance of a guilty plea. The second thing is that part of the special arrangements made to reduce the number of people in court buildings at any time during the pandemic of 2020 and 2021 has been the excusal of attendance at intermediate diets of all accused persons except those who do not have legal representation. In ordinary times, the attendance of the accused at the intermediate diet would be important. For one thing, if an accused person is going to fail to attend, it is better that the failure occurs at an intermediate diet than at a trial, when witnesses would have been put to the trouble of attending court. For another, a great many accused persons bury their heads in the sand and do not communicate with their lawyers except when they are in the court building. As a result, solicitors are able to reach resolution of a significant number of cases at the intermediate diet precisely because they have been able to discuss the case with their client in a meaningful way for the first time. The effectiveness of intermediate diets in bringing cases to a conclusion has always been limited. The excusal of most accused persons from attending, whilst justified on public health grounds, has reduced that effectiveness further.

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Bail Where the accused has been cited to the first calling they will be ordained to appear at the intermediate diet and the trial diet. This means that they are ordered to attend. In terms of section 150(8) an accused who without reasonable excuse fails to attend any diet of which they are given due notice is guilty of an offence. Where the accused is in custody or appears on the basis of having been released on undertaking, ordaining them to appear is an option but it is more likely that if they are released it will be on bail. The principles which apply to the granting (or withholding) of bail in a summary case are identical to those which apply in a petition case at full committal33; in other words, the prosecutor can oppose bail on some substantive ground but not on the ground that there are further investigations to be made. As at full committal on petition, both the prosecutor and the accused can appeal in connection with bail.

Prevention of delay in trials Where the accused is remanded in custody in connection with a summary prosecution they get the benefit of section 147 of the 1995 Act, which provides that a person charged with an offence in summary proceedings shall not be detained in that respect for a total of more than forty days after the bringing of the complaint in court unless their trial is commenced within that period, failing which they shall be liberated forthwith and thereafter shall be ‘forever free from all question or process for that offence’. In terms of section 147(2) the sheriff may, on cause shown, extend the period. The considerations which will apply are those relevant to the extension of custody time limits under solemn procedure34 with the important difference that, whereas the remedy for failure to start the trial within an unextended 140 days under solemn procedure is a grant of bail, failure to start a summary trial within the unextended forty days puts an end to the prosecution. It is worth noting two cases. The first of these is Lockhart v Robb35 in which a sheriff held that, whilst the serving of another substantive sentence could interrupt the running of the forty days, a remand in custody on deferred sentence on another case could not do so. The second case is Grugen v Jessop36 in which the procurator fiscal began the trial on the fortieth day, knowing that it could not be completed that 33

See p. 70 above. See p. 83 above. 35 1988 SCCR 381. 36 1988 SCCR 182. 34

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day because witnesses were unavailable. One was still suffering from serious injuries inflicted by the accused and two others were police officers who were required to give evidence on that day in the High Court. The trial was adjourned part-heard for eight days with the accused being further remanded in custody. The accused proceeded by bill of advocation, arguing that what had been done was an abuse of process. The Appeal Court held that it was not. The Lord Justice-General pointed out that if the procurator fiscal had sought an extension it would almost certainly have been granted. He also pointed out that the accused was only in custody at all because he had failed to turn up at an earlier calling of the case for trial.

Disclosure The principles in relation to disclosure are common to solemn and summary procedure. Just as under solemn procedure, the Criminal Justice and Licensing (Scotland) Act 2010 entitles the accused under summary procedure to disclosure of information which would materially undermine or weaken the evidence likely to be led by the prosecution, which would materially strengthen the accused’s case or which is likely to form part of the evidence to be led by the prosecution.37 The accused is permitted, but not, under solemn procedure, required, to lodge a defence statement.38 A defence statement is essential if the accused wishes to make an application under section 128 for a ruling on disclosure.39

Intermediate diet In terms of section 148, the purpose of the intermediate diet under summary procedure is to ascertain, so far as reasonably practicable, whether the case is likely to proceed to trial and, in particular: • • • •

The state of preparation of the prosecutor and the accused. Whether the accused intends to adhere to his plea of not guilty. How many witnesses are required to attend the trial. The extent to which the duty to try to agree evidence under section 257(1) has been complied with. • In the sheriff court, whether any witnesses are vulnerable (so that special measures should be ordered).

37

2010 Act s. 121. 2010 Act s. 125. 39 See p. 88. 38

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152 Criminal Evidence and Procedure: An Introduction

In order to make it possible to ascertain that, the court is required to ‘make such enquiry of the parties’ as is reasonably required. Parties usually address the court and set out the position as they see it and the sheriff or JP then asks any questions that seem necessary to explore any areas of uncertainty. Any application for a witness anonymity order40 must be made ‘before’ the intermediate diet41 and the court must consider any such application at the intermediate diet.42 The court may also consider any application under section 275 to lead evidence in a sexual offences case of the sort which would ordinarily be excluded by section 274.43 In terms of rule 40.3(1), where a party to summary proceedings proposes to raise a compatibility or devolution issue44 they must give notice of that intention before the first intermediate diet. By section 149B, unless the court, on cause shown, allows them to do so, it is not competent for the accused in a summary prosecution to reply on a special defence, of any intention to rely on a defence which involves incriminating a co-accused; of any defence of automatism or coercion and of any defence of consent in a sexual offences case unless notice has been given at or before the intermediate diet or, where there is to be no intermediate diet, not later than ten clear days before the trial. Various attempts have been made to make intermediate diets more effective. In 2019 a pilot scheme began in three sheriff courts in terms of which written records, very like those used under solemn procedure, were required. That was extended during the pandemic of 2020 to all cases, except those in which the accused had no lawyer, but the experiment did not last long. That was replaced by a requirement for the court to fix a date for a pre-intermediate diet meeting between the Crown and the defence, to be followed by the submission of a spreadsheet dealing with the things which the court must ascertain at intermediate diet. At the time of writing, that experiment is in its earliest days and it remains to be seen whether it will succeed and be maintained. These matters have been dealt with by the issue of Practice Notes and the up-to-date position at any given time should be checked. Unless there has been a plea of guilty, tendered and accepted, at the conclusion of the intermediate diet the court will do one of three things. 40

See p. 127 above. 1995 Act s. 271Q(2)(a). By subsections (5) and (6), the court does have power to grant leave for such an application to be made without that notice having been given provided that the application is disposed of before the beginning of the trial. 42 1995 Act s. 148(3AA). 43 See p. 168 above. 44 See p. 113. 41

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It may continue the case to the trial diet. It may adjourn the intermediate diet. Or it may adjourn the trial. An intermediate diet is likely to be adjourned where there is some matter which needs to be dealt with before the trial but which seems likely to be capable of being sorted out in a short time. For example, the parties might tell the court that the case is close to being resolved and that they need a few days for negotiation. The accused’s legal aid application might be outstanding. There might be a problem with disclosure, which the procurator fiscal undertakes to sort out after the court. It might be that an application for a witness anonymity order is made, or a minute raising a compatibility issue is intimated, at the last moment before the intermediate diet and either of these things is likely to mean that the other party needs an opportunity to consider what is being put before the court before responding. These are only examples. If there is reason to do so, the intermediate diet can be adjourned, typically for seven or (if there is time before the trial) fourteen days. Adjournment of the trial is the other possibility. An application to adjourn can be made at any time but is most common at the intermediate diet or at the trial itself. Whether or not to grant an adjournment is a matter for the discretion of the judge who deals with such an application. However, the Appeal Court gave some guidance as to the proper approach to such a motion in Skene v McLaren,45 where the Crown sought to have a summary trial adjourned because witnesses were not available. Lord Justice-General Emslie said: ‘When a motion is made by one party or the other to adjourn a diet of this kind on this ground and no question arises as to whether it is well founded in fact, there are two questions to which the sheriff must address his mind if he is to arrive at a proper decision upon the motion. The first question is whether the grant or refusal of the motion will be prejudicial to the accused and if so what is the probable extent of that prejudice. The second question is whether prejudice to the prosecutor would result from the granting or refusal of the motion and once again the degree of probable prejudice must be estimated . . . To these two questions we would add a possible third, namely prejudice to the public interest which may arise independently of prejudice to the accused or to the prosecution in the particular case in which the motion is made.’

This was reiterated in Tudhope v Lawrie.46

45

1976 SLT (Notes) 14. 1979 SLT (Notes) 13.

46

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154 Criminal Evidence and Procedure: An Introduction

In Stewart v Normand47 it was held to be oppressive for a sheriff to refuse an adjournment to an accused who produced a doctor’s letter stating that a defence witness was unfit to appear. Lord Justice-Clerk Ross said ‘unless circumstances are special it will normally be oppressive to refuse an adjournment which is necessary to allow the defence to obtain an essential witness who has been cited’. On the other hand, in HM Advocate v Dickie48 Lord Hardie commented that, except in the most unusual cases, adjournments should not be granted simply because the accused wanted the services of a particular counsel. In Najafian v Donaldson,49 an essential witness had not been cited due to the Crown’s failure to have in place a system for citing technical witnesses when the accuracy of speed detection equipment was challenged and Lord Hardie said that ‘in the absence of any comprehensible explanation for the Crown’s fault . . . it is difficult to understand how the justice could have exercised his discretion in the way that he did’ (that is, by granting the adjournment).

Chapter overview • All summary proceedings are instituted by complaint, signed by the prosecutor. • The complaint states the charge, which is subject to the same rules as an indictment about relevancy and specification. • Each time the complaint is called in court, a date is fixed for its next calling. If that is not done, it falls. • The accused may be cited to appear, attend in terms of an undertaking on which they have been released by the police or be arrested and brought before the court from custody. • Before stating they plea, the accused must state: Any challenge to the competency or relevancy of the complaint. Any challenge to a special capacity. Any challenge to an allegation that they were subject to a bail order. Any denial that they were the person charged by the police. Any objection to an allegation that the complainer is their partner or ex-partner. • If the accused pleads guilty, the court proceeds to sentencing. • If the accused pleads not guilty the court will adjourn for trial and will fix an intermediate diet before the trial.

47

1991 SCCR 940. 2002 GWD 7–222. 49 2010 SCCR 16. 48

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• The court will consider any application for bail. • If bail is refused, the trial must start within forty days of the accused’s first appearance or they are forever free from process for that charge. • The prosecutor is under a duty to make disclosure under the rules equivalent to those which apply to solemn procedure. • At the intermediate diet the court will ascertain whether the case is likely to proceed to trial and, in particular: The state of preparation of the parties. Whether the accused intends to adhere to their plea of not guilty. How many witnesses are required to attend the trial. The extent to which parties have complied with their duty to try to agree evidence. Whether there are vulnerable witnesses for whom special measures should be ordered. • Unless there has been a plea of guilty, at the conclusion of the intermediate diet the court will: continue the case to trial; adjourn the intermediate diet (if some further steps need to be taken for parties to be ready; or adjourn the trial.

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Chapter ten

Vulnerable Witnesses

The problem In times past, almost all witnesses gave their evidence in public, in a court which was open to the public and which was full of strangers. Witnesses called by the prosecution were asked questions by a prosecutor who did not necessarily understand that good advocacy involves asking short questions, limited to one fact per question and using language which the witness understands. Then they were cross-examined by a defence lawyer, who might have an equally inadequate grasp of the craft and who might not have given very much consideration to whether cross-examination of the particular witness was really necessary or desirable in their client’s interests. That defence lawyer’s (legitimate) interest was to discredit the witness’ evidence or present it as unreliable and they were likely to accuse them of lying (even if it would often have been nearer the mark and better advocacy to ask them if they might be mistaken). Defence witnesses were subjected to a similar ordeal, with the roles reversed. Complainers in trials relating to sexual offences found themselves being asked highly intrusive questions about their sexual histories. Little allowance was made for the stress this might inflict on the witness or for the adverse effect that it might well have on the quality of the evidence given. Moreover, trials were conducted on the basis of a series of out-of-date, unscientific and generalised assumptions. So it was assumed that all children are inherently unreliable (they are not); that a delay in reporting a crime always means that the complainer has fabricated the complaint (it does not); that the addition of detail – especially important detail – when a person is asked to give their account on a second or subsequent occasion always indicates dishonest embellishment (it does not; it is common for truthful and reliable accounts to include more information on the second time of asking). It was assumed, entirely incorrectly, that a woman who had consented to sex with one man in the past thereby demonstrated that she was willing to have sex with any other man and, hence, with the accused.

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Unfortunately, bad advocacy and assumptions of that sort are not things of the past. They remain common in every criminal court. Courts have always had a duty to protect witnesses from excesses of the sort described. At the time of writing, the clearest recent statement about this was made by the Lord Justice-Clerk (Carloway) in Dreghorn v HM Advocate.1 The accused was charged on indictment with a large number of sexual offences, some of which were of considerable age, and was convicted, eventually, of four of them. The case went to the Appeal Court on grounds of appeal which related to the reasonableness of the verdict and to the application of the Moorov doctrine (the appeal was unsuccessful) but Lord Carloway expressed disapproval of the length of both examination in chief and cross-examination and of the tone of cross-examination. He said that the right to cross-examine: ‘does not extend to insulting or intimidating a witness . . . It also requires to be balanced against the right of a witness to be afforded some respect for her dignity and privacy. The court must be prepared, where appropriate, to interfere when cross-examination strays beyond proper bounds, both in terms of the nature of the questioning and the length of time for which a complainer can be expected to withstand sustained attack.’‘

The legislation now reflects a growing recognition that giving evidence is a stressful thing to have to do, that in some cases it compounds the harm which a complainer has already suffered in the events which gave rise to the trial and that the traditional model might not necessarily be the best one for getting reliable evidence. It is emphasised that the sorts of measures that are about to be described are now so common as to be mainstream. It would be a mistake to regard them as exceptions to the usual way in which trials are conducted. They are fully part of the usual way in which trials are conducted. The techniques and approach which this requires of the advocate are not the same as those which are appropriate in the traditional setting and a competent advocate will take account of that. The ‘toolkits’ available at The Advocate’s Gateway2 will provide significant help in approaching the task and, in the case of evidence before a commissioner, parties are explicitly required to craft their questions according to the guidance in the relevant High Court Practice Note ‘and to the guidance provided by the Advocates Gateway website’.3 1

2015 SCCR 349. The Advocate’s Gateway, http://www.theadvocatesgateway.org (last accessed 11 June 2021). 3 High Court Practice Note No. 1 of 2019. 2

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158 Criminal Evidence and Procedure: An Introduction

Closing the court Although it is an important constitutional principle and a requirement of article 6 ECHR that criminal cases should be dealt with in public, it has long been the law that, in a trial on indictment for ‘rape or the like’ (an expression which is interpreted quite broadly so as to include most sexual offences), the court could be closed during the evidence of the complainer. Article 6 makes explicit allowance for that possibility and in Mraovic v Croatia4 the European Court of Human Rights found no violation of article 6 where the court was closed for the whole trial, reasoning that intimate information about the complainer could have been disclosed at any stage in the trial. So section 92(3) of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) permits the judge to cause all persons other than the accused and counsel and solicitors to be removed from the court room and, in practice, it would be usual to do so during the evidence of the complainer in relation to a sexual offence. There is no general equivalent under summary procedure.5 However, in terms of section 50(3) (which applies to both solemn and summary procedure) where a child is called as a witness in a case relating to an offence against decency or morality the court may direct the exclusion of all persons except court members and officers, parties and their lawyers, the press and anyone specially authorised by the court to remain.

Child witnesses: Discretionary powers Recognition that the courtroom could be a difficult environment for child witnesses led to the issue of a memorandum on the subject in 1990, superseded in 2005 by a High Court Practice Note.6 That practice note states its general objective as being to ensure, so far as reasonably practicable, that the experience of giving evidence by all children under the age of sixteen causes as little anxiety and distress to the child as possible in the circumstances. The practice note is intended to provide assistance to judges in the exercise of their discretionary powers, where a child is giving evidence by conventional means in open court, to put the child at ease while giving evidence and to clear the court of persons who do not have a direct involvement in the proceedings. It gives, as examples, the removal of wigs and gowns by the judge, counsel and solicitors, positioning the child at the table in the well of the court along with the judge, counsel and solicitors rather 4

14 May 2020, 30373/13. But see 1995 Act s. 271HB, discussed below. 6 Practice Note (No. 2 of 2005). 5

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than in the witness box and clearing the court. It sets out things which the judge should consider. These include any special measures ordered, the nature of the charge and the relationship between the child and others involved in the case. The developments described in the following paragraphs make it unlikely that a child will be giving evidence by conventional means in open court. However, the practice note retains some significance. It is, for example, usual for wigs and gowns to be removed even when the child is giving evidence over a live TV link.

Special measures for vulnerable witnesses Sections 271–271M of the 1995 Act apply where evidence is to be given by a person (including the accused) who is within the category of ‘vulnerable witnesses’ as defined in the Act. In such a case, an application can be made to the court (usually by the Crown but the mechanism is also available to the defence) for ‘special measures’. These may be what the Act refers to as ‘standard special measures’ (for example, giving evidence from behind a screen) or other measures drawn from a range of possibilities for which the Act provides. Unfortunately, the arrangement and drafting of the provisions makes no concessions to the need of the user for clear legislation which is easy to navigate. Which witnesses are ‘vulnerable’ We shall start with the categories of witness whom the 1995 Act defines as vulnerable and the particular rules which apply to each category (especially children). Then we shall describe the special measures for which the Act provides. Put very generally (very generally), however, a witness will be a vulnerable witness if they are a child under eighteen or the complainer in a case involving a charge listed in section 271 or if there is a risk that the quality of their evidence will be affected by mental disorder or by fear or distress in connection with giving evidence. In such cases, on a notice being lodged with the court, the court is empowered (and often required) to order that special measures are to be used. At the very least, that will involve the witness giving evidence from behind a screen and often with the help of a supporter. It will often involve the witness giving evidence by CCTV from a remote location (especially if the witness is a child). In an increasing number of cases it will involve a filmed interview with a witness (again, especially a child witness) taking the place of examination in chief and/or cross-examination or the whole of the evidence of the witness being given before a commissioner before the trial commences and a filmed record of that evidence being played at trial.

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The best starting point is section 271, which defines the expression ‘vulnerable witness’ and hence the categories of witness with whom we are concerned here. There are four categories, two of which are wholly objective and two of which involve some judicial assessment. We deal with the objective categories first. It should be kept in mind that an accused person who is giving evidence might fall into one of these categories.7 Child witnesses The first category8 is anyone who is under the age of eighteen on the date of the commencement of the proceedings. The 1995 Act refers to a person in this category as a ‘child witness’.9 Apart from the reference to the commencement of proceedings, this category is straightforward. If the witness was below eighteen when the proceedings commenced, they are a vulnerable witness, even if the proceedings have become extended so that the witness has become eighteen, nineteen or even older before giving evidence and even if the witness is also the accused (which is entirely possible, given that sixteen-year-olds can be prosecuted). The point at which proceedings commence for these purposes is defined by subsection (3). For most purposes, it is the date when the indictment or the complaint was served on the accused.10 However, where the special measure being considered is the taking of evidence by a commissioner in terms of section 217I, it is the date when the accused appeared on petition.11 That is because, as we shall see, that measure is available before the service of the indictment. Deemed vulnerable witnesses The second category12 has as its criterion the nature of the charge. The witness will be vulnerable if the offence is alleged to have been committed against them and it is within one of five types. A witness in this category is referred to in the 1995 Act as a ‘deemed vulnerable witness’.13 The types of offences are: (i) a sexual offence; (ii) trafficking in prostitution; (iii) trafficking people for exploitation; (iv) human trafficking; (vi) an offence 7

1995 Act s. 271F makes special provision for this eventuality. 1995 Act s. 271(1)(a). 9 1995 Act s. 271(5). 10 1995 Act s. 271(3)(b). 11 1995 Act s. 271(3)(a). 12 1995 Act s. 271(3)(c). 13 1995 Act s. 271(5). 8

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involving domestic abuse; or (v) stalking. Sexual offences are defined by reference to the list of such offences in Schedule 3 to the Sexual Offences Act 2003. That list is encountered most frequently in connection with the notification requirements which follow conviction of a listed offence (known colloquially but incorrectly as the ‘Sex Offenders Register’). It needs to be noted that the ‘catch all’ for the notification requirements which applies if the court determines that there is a significant sexual element to an offence which is not listed does not apply to the vulnerable witness provisions. ‘Domestic abuse’ is not defined for this purpose. ‘Stalking’ is the offence under section 39(1) of the Criminal Justice and Licensing (Scotland) Act 2010. Special measures for child witnesses and deemed vulnerable witnesses Child witnesses and deemed vulnerable witnesses are entitled to the benefit of one or more of the special measures, in terms of section 271A(1)(1). The remainder of that section sets out the detail of the procedure for the making of orders for these witnesses. It need not be considered here except to say that: (i) it involves the party who intends to call the witness lodging a notice with the court; (ii) there is a procedure (little used in practice) for objecting to whatever order is being sought; and (iii) it is possible for the witness to express a wish to give evidence without special measures. The court is required to make an order about special measures but that order might be that the witness is to give evidence without such measures. An order that the witness is to give evidence without special measures can only be made if: (a) that is the expressed wish of the witness; or (b) using special measures would give rise to significant risk of prejudice to the fairness of the hearing or to the interests of justice and that risk significantly outweighs risk of prejudice to the interests of the witness.14 Deemed vulnerable witnesses and some child witnesses do sometimes say that they do not want special measures and, in that situation, the order that the witness is to give evidence without them is likely to be made. However, whilst it is theoretically possible that the application of particular special measures to particular cases would risk unfairness, it is hard to imagine circumstances in which the use of any special measures at all would involve risk to the fairness of the hearing or the interests of justice and even harder to imagine circumstances in which that risk would significantly outweigh the risk of prejudice to the witness. The writer has neither encountered nor

14

1995 Act s. 271A(10).

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162 Criminal Evidence and Procedure: An Introduction

heard of any case in which an order for no special measures has been made on that ground. There is further provision about children under twelve in section 271B. It is not easy to follow at first; but its effect is that, where the charge is one listed in subsection (2) of the section15 and the witness was under twelve at the commencement of proceedings, the court must not make any order that would require the child to be present in the courtroom unless the child has expressed a wish to be present. In that event, the court must make an order requiring the child to be present in the courtroom to give evidence and may authorise special measures to facilitate that unless the court considers that it would not be appropriate for the child to be present. The list overlaps substantially with the list of offences to which section 271BZA applies. That section requires the court, in a case under solemn procedure, to enable all of the evidence of a child witness (of any age) to be given in advance of the hearing unless either: (a) that would involve a significant risk to the fairness of the hearing or interests of justice, sufficient to significantly outweigh the risk to the interests of the child; or (b) a child aged over twelve when the proceedings commence expresses a wish to give evidence at the hearing and it would be in the child’s best interests to do so.16 Risk to the quality of evidence The third and fourth categories both involve some judicial assessment. When making that assessment the court must have regard to the things specified in the relevant subsections but also to the best interests of the witness. It must also take account of any views expressed by the witness.17 The third category18 applies where there is a significant risk that the quality of the evidence (in terms of its completeness, coherence and accuracy19) to be given by the person will be diminished by reason of one of two things. These are mental disorder or fear or distress in connection with giving evidence at the hearing. So the first stage is to decide whether the person suffers from a mental disorder, which is defined by reference to section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003. Alternatively, the first stage is to consider whether the person is going to experience fear or 15

Murder, culpable homicide, an offence involving assault, injury or threat of injury, abduction, plagium, most sexual offences, domestic abuse and offences aggravated by domestic abuse. 16 1995 Act s. 271BZA(3). 17 1995 Act s. 271(4A). 18 1995 Act s. 271(1)(b). 19 1995 Act s. 271(4).

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distress in connection with giving evidence. The second stage is to consider whether there is a significant risk that the quality of the evidence will be diminished by reason of one of those things. There are two things to be said about this. The first is that there is almost bound to be some risk to the quality of the evidence where the witness suffers a mental disorder or fear or distress, even if that risk is theoretical. Some risk, however, is not enough. The risk must be ‘significant’. That said, courts tend, in practice, to be ready to treat a person as a vulnerable witness without giving close scrutiny to the level of risk. The second is that section 271(2) requires the court, in making the assessment whether someone is a vulnerable witness in terms of section 271(1)(b), to take into account the nature and circumstances of the alleged offence, the nature of the evidence which the person is likely to give, the relationship between the accused and the person, the person’s age and maturity and any behaviour towards the person by the accused, their family or associates or any other person who is likely to be an accused or witness. The court must also take into account such other matters as appear to it to be relevant, including social and cultural background, sexual orientation, domestic and employment circumstances, religious beliefs or political opinions and any physical disability or impairment. Risk of harm to the witness The fourth category20 is somewhat impenetrable and rarely encountered in practice. The witness is vulnerable if there is considered to be a significant risk of harm to the person by reason only of the fact that the person is giving, or is to give, evidence in the proceedings. In other words, this applies if the very experience of giving evidence will give rise to a risk – a significant risk – of harm. Section 271(2) applies to this, as it does to subsection (1)(b). So the court must take into account the various matters listed in the last paragraph. The special measures The other foundational provision is section 271H, which lists the ‘special measures’ that the court may authorise. They are: taking evidence by a commissioner; use of a live television link; use of a screen; use of a supporter; giving evidence in chief in the form of a prior statement; and excluding the public. Live TV links and screens are used very commonly, often in combination with the use of a supporter. These are referred to, in terms of section 271A(14) as ‘standard special measures’. However, the 20

1995 Act s. 271(3)(d).

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giving of evidence in chief in the form of a prior statement and taking of evidence by a commissioner are (for child complainers in solemn procedure at least) becoming increasingly common, often in combination, with the child’s evidence in chief being given by the playing of the video recording of the joint investigative interview with the child by a police officer and a social worker and then cross-examination being carried out before a commissioner. Indeed, section 271BZA21 provides that (subject to two specified exceptions), where a child witness is to give evidence in solemn proceedings in relation to a list of offences set out in the section the court ‘must enable all of the child’s evidence to be given in advance of the hearing’. In terms of section 271BZB(2), taking of evidence by a commissioner, use of a supporter and giving evidence in chief in the form of a prior statement are substituted as the standard special measures. We shall deal with the special measures in the order in which they are listed in section 271H rather than the (slightly different) order in which they are dealt within the succeeding sections. Taking of evidence by a commissioner Section 271I makes detailed provision for the taking of evidence by a commissioner and it should be read with High Court Practice Notes Nos 1 of 2017 and 1 of 2019. Here, we are concerned almost entirely with the material in section 271I. Taking evidence on commission is not a new procedure. In particular, it has been used in civil procedure for many years, especially where a witness lived outside the jurisdiction of the court or within the jurisdiction and remotely from the court or where the witness was too ill to attend court. The procedure was also competent in criminal courts but was only used occasionally, where health problems prevented the witness from attending. Illness would more usually prompt an application to lead evidence of the witness’ statement as admissible hearsay under section 259 of the 1995 Act. Now, however, the procedure is being used with increasing frequency in relation to vulnerable witnesses and especially in relation to children. Taking evidence in this way involves the appointment by the court of a person to hear the evidence. Under section 271I, that must be a High Court judge or a sheriff 22 and the practice is to try to appoint the trial judge. The evidence is taken at some convenient location. In the past, where illness was 21

1995 Act ss. 271BZA, 271BZB, 271BZC and 271BZD come between ss. 271B and 271BA, which is not necessarily where one would look for them. 22 1995 Act s. 271I(8).

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the issue, that location was often the witness’ home but where it is being used for a vulnerable witness it will often be in a court building. As we shall see, it needs to be equipped to receive evidence from the witness by live TV link and to feed the proceedings to a monitor being watched in a different location by the accused. The witness is examined in chief, cross-examined and re-examined just as they would be in court, though in relation to a child witness at least, examination in chief will often take the form of the playing of the joint investigative interview of the child, conducted by a specially trained police officer and social worker. The effect of that is that the taking of evidence on commission is largely concerned with cross-examination. The taking of the evidence may involve a live TV link23 and must be recorded by video recorder.24 The accused cannot be present except with leave of the court on special cause shown but must be enabled to watch and hear the proceedings ‘by such means as seem suitable to the court’.25 Where an application for the taking of evidence by a commissioner is granted, the court must fix a date for that hearing but also fix a date for a ‘ground rules hearing’.26 That hearing ought generally to be presided over by the person appointed as commissioner but, where that is not reasonably practicable, by a judge of the court that appointed the commissioner.27 The matters to be dealt with at the ground rules hearing are set out in section 271I(1ZD). For the most part, they might be described as ‘nuts and bolts’ and they include ascertaining how long it is likely to take to take the evidence, considering whether to authorise the use of a supporter in terms of section 271L and considering whether there are any steps which could reasonably be taken to enable the vulnerable witness to participate more effectively in the proceedings. Not everything considered at the ground rules hearing can be described as ‘nuts and bolts’. The hearing may involve the commissioner or presiding judge deciding on the form and wording of the questions that are to be asked of the vulnerable witness.28 It has become usual for the court which fixes a ground rules hearing to require parties to lodge a list of questions in advance. Practice Note No. 1 of 2019 explains that: ‘The taking of evidence from child and vulnerable witnesses should entail the least number of questions consistent with the duties of counsel. It 23

1995 Act s. 271I(1A). 1995 Act s. 271I(2). 25 1995 Act s. 271I(3). 26 1995 Act s. 271I(1ZA). 27 1995 Act s. 271I(1ZB). 28 1995 Act s. 271I(1ZD)(b). 24

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should be carried out as speedily as possible. Questions should be simple and straightforward. The language used should be understandable to the witness. The questioner should avoid tagged or hypothetical questions and complex syntax.’29‘

Notwithstanding that, it is common for the list of questions to be rejected by the judge at the ground rules hearing as far too long and as using convoluted language and complex syntax. Live television link Live TV links are dealt with by section 271J. Subsection (1) requires the court to make arrangements for the witness to give evidence from a place outside the courtroom, which may be another room in the court building or somewhere outside the court building (sometimes in a different town altogether). The room in which the witness sits has a monitor, a camera and a microphone. In the courtroom, there are monitors for the judge, the lawyers and the jury and large screens on the walls so that the accused and the public can see and hear the witness. Cameras in the court room offer views of the judge, each lawyer and the courtroom as a whole. The judge controls the choice of camera. In this way, the witness can see the person who is addressing them at any given time and those in the court can see the witness. Screens Screens are dealt with by section 271K. It should be understood that the point of a screen is to conceal the accused from the sight of the witness,30 not to conceal the witness from anyone. In practice, a screen is drawn across next to the witness box so that the witness cannot see the accused but the witness can still see and be seen by the judge, jury and lawyers. Subsection (2) requires that arrangements are made to ensure that the accused is able to watch and hear the vulnerable witness giving evidence. In practice, that is done by a video feed from a camera pointing at the witness to a monitor that can be seen by the accused. Supporters A supporter is simply a person who sits in court near the witness and provides a reassuring presence – in the words of section 271L, the supporter is ‘present alongside the witness to support the witness while the witness is giving evidence’. A supporter is not permitted to communicate with the 29

It is arguable that this describes good advocacy generally. 1995 Act s. 271K(1).

30

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witness while the evidence is being given, so as to satisfy the requirement of sections 271L(3) that ‘the supporter shall not prompt or otherwise seek to influence the witness in the course of giving evidence’. Evidence in chief in the form of a prior statement In A v HM Advocate31 the Appeal Court reviewed aspects of the use in evidence of previous statements. We shall consider that case in more detail below32 but here we note that Lord Bonomy, in the chair, explained that using a previous statement ‘involves reliance on an exception to the normal evidential rule that hearsay is inadmissible’. It is, therefore, important that, wherever it is proposed to use a previous statement in evidence, the conditions prescribed by the law for its use in that way are observed. In relation to vulnerable witnesses, those conditions are to be found in a combination of sections 271H, 271M and 260, as applied by section 271M. Section 271H lists the special measures which are available when the court decides that the witness is vulnerable and should (or must) have the benefit of special measures. Section 271H(1)(e) includes in that list ‘giving evidence in chief in the form of a prior statement in accordance with section 271M of this Act’. Section 271M(2) provides that: ‘A statement made by a vulnerable witness which is lodged in evidence for the purposes of this section by or on behalf of the party citing the vulnerable witness shall, subject to subsection (3) below, be admissible as the witness’s evidence in chief, without the witness being required to adopt or otherwise speak to the statement in giving evidence in court.’

‘Statement’ is defined under reference to section 262(1) which includes in the definition ‘any representation however made or expressed, of fact or opinion and any part of a statement’. It excludes a statement in precognition other than a precognition on oath.33 Section 260 is concerned with the admissibility of prior statements of witnesses in general but section 271M(3) modifies it in relation to special measures. It is the first two subsections of that section that are particularly relevant. As modified, section 260(1) and (2) provides as follows: ‘(1) Subject to the following provisions of this section, any prior statement made by the witness shall be admissible as evidence of any matter stated in it of which direct oral evidence by him would be admissible if given in the course of those proceedings. 31

2012 JC 343. See p. 196. 33 These concepts are explained at p. 84. 32

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(2) A prior statement shall not be admissible under this section unless— (a) the statement is contained in a document; (b) . . . and (c) at the time the statement was made, the person who made it would have been a competent witness in the proceedings.’

Section 271M also tells us that, in section 260 as modified, references to a statement are references to the statement lodged for the purposes of section 271M.

Prior sexual conduct of the complainer Applications under section 275 of the 1995 Act are very common is cases involving sexual offences. In order to understand applications under section 275, it is necessary to understand section 274 first. Both sections apply to both solemn and summary procedure and specifically to prosecutions for the sexual offences specified in section 288C (that is, almost all sexual offences). Section 274 provides that the court must not admit or allow questioning designed, inter alia, to elicit evidence that the complainer is not of good character (in relation to sexual matters or otherwise) or has at any time engaged in sexual behaviour not forming part of the charge. Section 275 provides that the court may allow such questioning if satisfied that the criteria set out in section 275 are met. The first and most fundamental thing to be noted is that section 274 operates so as to introduce restrictions on admissibility that were not, or were not necessarily, present in the existing law. Section 275 operates only in relation to those matters dealt with by section 274. It cannot operate so as to give a court power to admit evidence which is rendered inadmissible by some rule apart from section 274. So, in MM v HM Advocate,34 Lord Johnston explained that when consideration is given to a section 275 application, the starting point should be whether it would have been permissible to maintain such a line of questioning at common law before the enactment of the legislation. If not, then neither section 274 nor section 275 has any relevance. The evidence is inadmissible and that is an end of the matter. Section 275 does not operate so as to allow evidence to be led which is inadmissible for any reason apart from section 274. In RG v HM Advocate35 the Lord Justice-Clerk (Dorrian) said ‘for the sake of absolute clarity’ that unless the evidence in question would be admissible at common law no further question arises under section 275. 34

2007 SCCR 159. 2019 SCCR 172.

35

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In MM, Lord Johnston said that the existing state of common law was that: ‘Firstly . . . issues collateral to the issue at the trial were not to be admissible . . . Secondly, general character attacks were not admissible on, for example, the assertion that the complainer is an habitual liar but character attack in sexual matters in relation to bad moral character was permitted.’

Evidence is collateral, and hence inadmissible, if it has no reasonably direct relationship with the fact to be proved36 – that is, with the facts in issue in relation to the charge. The credibility of a witness is not a fact to be proved. It is an assessment to be made. To say that evidence is relevant to credibility is no answer to an objection that evidence is collateral. So, in MM, Lord Johnston added that he did not regard it as permissible at common law to lead evidence of false allegations of sexual assaults on other occasions and said that he considered that position to be consistent with the approach taken by the Court in Cassels v HM Advocate.37 The approach thus described has been reiterated repeatedly by the Appeal Court. In CJM v HM Advocate,38 the appellant was charged with indecently assaulting a child during the 1990s, when she was aged between six and ten. The appellant sought to introduce evidence that she made a false allegation that a man had committed an offence of a sexual nature against her in 2006. It was said that she had admitted that the allegation was false, that she was cautioned and charged by the police in relation to that but that no proceedings followed. Applications by the appellant under section 275 to lead evidence of her admission were repelled on the ground that the evidence was inadmissible at common law. On appeal, it was also accepted by the appellant that the evidence related to a collateral issue, but it was submitted that it should have been admitted in order to allow the jury to make a balanced assessment of the complainer’s credibility and reliability. A bench of five judges concluded that the admissibility of the evidence was not simply a matter of the judge at first instance determining ‘fairness’ or ‘justice’ in an individual case, but of applying the well-tried and tested exclusion of evidence of collateral matters which exists for pragmatic reasons in connection with the administration of justice generally and for the protection of witnesses, notably complainers, who cannot be expected to anticipate, and defend themselves against, personal attack. 36

Strathmore Group v Credit Lyonnais 1994 SLT 1023. 2006 SCCR 327. 38 2013 SCCR 215. 37

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Permitting an exploration of the 2006 episode could have resulted in a prolonged ‘trial within a trial’ involving an attempt to ascertain whether, and to what extent, that episode did happen, so that this was a collateral matter which was excluded from consideration by the common law, and whose introduction would have been apt to confuse and distract the jury from a proper consideration of the evidence bearing upon the charge in the libel. That is subject to an exception if the matter which it is sought to raise is instantly (and, one might think, incontrovertibly) verifiable by production of an extract conviction. The effect of this is to define the scope of application of section 275 rather tightly. It applies only to evidence which would have been admissible at common law but which is rendered inadmissible by section 274. The exceptions in section 275 depend on the satisfaction of three criteria. The first is that the evidence or questioning contemplated relates to a specific occurrence which demonstrates the complainer’s character or any condition or predisposition to which the complainer is subject. In CJM, the court observed the ‘condition or predisposition’ requires to be one which is objectively diagnosable in medical, notably psychiatric, terms and that the exception cannot be applied in the absence of medical evidence to that effect, The second criterion is that the occurrence or facts are relevant to establishing whether the accused is guilty of the offence with which they are charged. In LL v HMA39 the Appeal Court held that the fact that there was free agreement and reasonable belief as to that agreement on one occasion did not make it more or less likely, as a matter of generality, that there was free agreement and reasonable belief as to that agreement on another occasion many months later and said that if a previous act of intercourse was to be relevant to the issue as to whether the complainer consented on a subsequent occasion or to the issue as to whether an accused reasonably believed that the complainer was consenting, particular circumstances would have to be averred to demonstrate the connection between otherwise unrelated events. In CH v HM Advocate40 the Lord Justice-General (Carloway) characterised the appellant’s desire to lead evidence (which the complainer denied) about consensual intercourse both before and after the alleged rape as a ‘classic case of an accused person attempting to deflect the jury’s attention away from the real issues at trial by introducing irrelevant and collateral matters’ and said that ‘[w]hether a complainer consented to have intercourse with an accused on different occasions is not normally relevant to whether she consented to

39

2018 JC 182. 2020 SCCR 411.

40

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intercourse at the material time’. Lord Carloway did say that evidence of intercourse at another time might be relevant to explain scientific findings. The third criterion is that the probative value of the evidence sought to be admitted is significant and is likely to outweigh any risk of prejudice to the proper administration of justice arising from its being admitted. The reference to the proper administration of justice is defined so as to include appropriate protection of a complainer’s dignity and privacy. This requires the court to carry out a balancing exercise and might well mean that there are cases in which evidence of potential significance and relevance is excluded. In CJM it was said by the court that, having regard to the lack of any connection in time, character or circumstances between the charge relating to the 1990s and the events reported in 2006 this collateral material neither met the test of relevancy nor carried a significant probative value likely to outweigh the risk of prejudice to the proper administration of justice. In RR v HM Advocate41 it was held that it is the duty of the Crown to ascertain a complainer’s position in relation to a section 275 application and to present that to the court, irrespective of the Crown’s attitude to it. Where an application is made successfully under section 275, section 275A comes into play. It contains a requirement for the prosecutor to lay any relevant previous convictions (essentially, for sexual offences) before the court and a presumption that the convictions will be disclosed to the jury. It was held by the Judicial Committee of the Privy Council in DS v HM Advocate42 that section 275A is compatible with Article 6 ECHR.

Chapter overview • The court will intervene to protect a witness from question which insults or intimidates a witness. • In a trial for rape or the like, section 92(3) of the Criminal Procedure (Scotland) Act 1995 empowers the judge to close the court to all bar participants in the trial during the giving of evidence. • The court has discretionary powers to mitigate the experience of children giving evidence, for example by the removal of wigs and gowns. • Sections 271–271M of the Criminal Procedure (Scotland) Act 1995 set out rules about taking evidence from vulnerable witnesses. • A vulnerable witness is: A child witness – that is, anyone under eighteen years old at the commencement of proceedings. 41

2021 SCCR 71. 2007 SC (PC) 1.

42

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•

•

• • •

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A deemed vulnerable witness – that is, anyone alleged to have been the victim of: ■ a sexual offence; ■ trafficking in prostitution; ■ trafficking people for exploitation; ■ human trafficking; ■ an offence involving domestic abuse; and ■ Stalking. A person, the quality of whose evidence is likely to be diminished by reason of mental disorder or by fear and distress in connection with giving evidence. A person who is at significant risk of harm by reason of giving evidence. The following special measures are available: Taking evidence by a commissioner. Live TV link. Screens. Supporter. Evidence in chief in the form of a prior statement. Section 274 provides, in relation to sexual offences, that the court must not admit or allow questioning designed to elicit evidence that the complainer is not of good character or has at any time engaged in sexual behaviour not forming part of the charge. Section 275 provides that the court may allow such questioning if certain criteria are met. Section 275 only applies to evidence which is rendered inadmissible solely by section 274; it does not empower the court to admit evidence which is inadmissible on any other basis (usually, that it is collateral). The criteria are that: The evidence relates to a specific occurrence which demonstrates the complainer’s attitude or any condition or predisposition to which the complainer is subject. The occurrence or facts are relevant to establishing whether the accused is guilty of the offence with which they are charged. The probative value of the evidence is significant and is likely to outweigh any risk of prejudice to the proper administration of justice arising from it being admitted (the administration of justice includes the appropriate protection of the complainer’s dignity and privacy).

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Chapter eleven

The Trial: Evidence

What things constitute evidence Evidence is the principle means by which facts are established at trial, though it is not the only means. It will be recalled that there is a duty to agree matters not in dispute.1 If a joint minute agreeing facts is tendered to the court, the court takes those facts as established. It is not open to parties to bring them into question or to the judge or jury to doubt them. Again, it will be recalled that some matters – for example, special capacities – are to be treated as established unless objection is taken to them at the appropriate procedural stage.2 We should also note that sections 280 and 281 of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) aim to focus the trial on what really matters by enacting provisions about routine evidence. Section 280(1) gives effect to Schedule 9 and provides that for the purposes of any proceedings for an offense under the enactments there specified a certificate purporting to be signed in terms of the schedule shall be sufficient evidence of the matter and qualifications of the person signing. The enactments specified in Schedule 9 cover a wide variety of offences. Those which are of particular practical significance include the Misuse of Drugs Act 1971 (as to which the type, classification, purity, weight and description of a substance may be certified) and the Road Traffic Regulation Act 1988 (as to which the accuracy of speed measuring equipment may be certified). Before such certificates are evidence they must, in terms of section 280(6), be served on the other party (usually the accused) not less than fourteen days before the trial. The recipient then has seven days within which to challenge the certificate. If such a challenge is made, the evidence of the forensic scientists has to be led to establish the fact or conclusion as to fact. If the certificate is not challenged, the matter certified becomes evidence in the case and the opportunity to challenge it is lost. Otherwise, though, facts are established by the evidence of witnesses. It is worth mentioning in particular that the mere fact that a production 1

See p. 136. See pp. 125–126.

2

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appears on the list of productions under solemn procedure does not make it evidence. Unless there is a statutory provision that allows it to stand alone, the party wishing to use it in evidence has to lead the evidence of a witness about what it is, where it came from and what it is about the production that is said to matter in the particular case. So, for example, although statements in business documents are admissible in evidence if they comply with the 1995 Act Schedule 8, evidence that they do comply is still needed. As we saw above,3 there are three criteria: the document must have been created or received in the course of a business; it must have been kept by a business; and the statement must have been made on the basis of information supplied by a person who might reasonably be supposed to have had personal knowledge of the matters contained within it. The requirement that the document must have been kept by a business can be satisfied by a certificate but the evidence of a witness is still needed to satisfy the conditions that the document was created or received in the course of a business and that the statement was made on the basis of basis of information supplied by a person who might reasonably be supposed to have had the necessary personal knowledge. This is usually achieved by leading evidence from someone who can explain the system in place in the business. It is also necessary for a witness to point to what matters in the document and it might be necessary for the witness to interpret it. For example, neither judge nor jury can be expected to understand the subtleties of the financial records kept by a business, especially if they do not conform to recognised accounting practice. In terms of the legal rules, there are two broad questions to be considered about evidence. The first is whether any particular adminicle of evidence is admissible. The second is whether the evidence as a whole is sufficient in law to establish any particular fact which is in issue. Whether the tribunal of fact – the jury or the judge in a summary trial – believes and relies on the evidence so as to find the fact, or the charge, proved is a different matter.

Admissibility of evidence Objections The approach which Scots law takes to the admissibility of evidence is exclusory; that is, there are certain rules the breach of which will render the evidence in question inadmissible. The means by which a party secures 3

See p. 110.

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compliance with those rules by their opponent, and the exclusion by the court of evidence which breaches them, is by objecting to any attempt to lead that evidence. Before we consider the actual rules as to admissibility, we need to look at the procedure upon an objection being made. Whilst, under summary procedure, there are no real restrictions on the taking of objections, under solemn procedure the scope for making objections is limited because, as we noted above4 section 79 of the 1995 Act requires that notice must be given before the first diet or preliminary hearing of preliminary issues and provides that an objection to the admissibility of evidence is a preliminary issue. We also noted that, where a notice has not been served timeously, section 79(1) precludes the raising of preliminary issues except by leave of the court on cause shown. And we noted that section 79A(2) precludes the granting of that leave unless written notice of the intention to raise the issue has been given. The only exception to this is to be found in section 79A(3), which permits the court to dispense with the requirement for written notice where the party seeks to raise the objection after the commencement of the trial. However, section 79A(4) provides that the court shall not grant leave for the objection to be raised unless it considers that it could not reasonably have been raised before that time. In Leadbetter v HM Advocate5 the Lord Justice-General (Carloway) made it clear that that means exactly what it says. An attempt was made to object, at trial, to the opinion evidence of a police officer about the ages of children depicted in indecent photographs. The officer had received relevant training and specialised in such cases. A report which he had prepared and which set out his qualifications for making that report had been disclosed in advance. The sheriff refused to allow the objection to be stated. The Appeal Court referred to section 79A(2) and recalled that in Bhowmick v HM Advocate6 the court had said that a trial judge who had entertained an objection at trial without having any basis for concluding that it could not have been raised earlier had acted contrary to the legal requirements imposed upon her. In Leadbetter, the Court held that ‘the sheriff was entirely correct in his approach to the lateness of what was an entirely opportunistic objection . . . ’. Other objections only become obvious during the course of trial. In such a case, the party making the objection must do so immediately when the evidence is sought to be led and have the objection recorded.7 If they 4

See p. 127. 2021 SCCR 21. 6 2018 SCCR 35. 7 Macaulay v Wilson 1995 SCCR 133. 5

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do not do so, the evidence becomes part of the case to be considered by the court in due course no matter how strong the objection might be. For example, in Cordiner v HM Advocate8 the prosecutor asked a question of the accused which suggested that he had committed a crime not charged, namely subornation of perjury, by attempting to persuade a witness to give false evidence at his trial. On appeal, it was held that there was a technical breach of the law on admissibility of evidence but that, since no objection had been taken at the time, the appellant was to be regarded as having waived compliance with the rule. A very recent example, at the time of writing, is to be found in Wishart v Procurator Fiscal, Kirkcaldy.9 The appellant’s conviction for failing to stop after a road accident, in contravention of section 170 of the Road Traffic Act 1988, rested on CCTV footage of the car park where the accident happened. There were no eyewitnesses.10 The Crown introduced that evidence by way of a certificate under section 283 of the 1995 Act, which provides that a certificate purporting to be signed by a person responsible for the operation of a video surveillance system, certifying the location of the camera, the nature and extent of the person’s responsibility for the system and the date and time of the events recorded is sufficient evidence of the matters contained in the certificate. There is provision for a counter-notice which, if given, means that the Crown has to prove those matters by other means. The accused did not serve a counter-notice but, at trial, his solicitor sought unsuccessfully to argue that the certificate was defective and of no effect. On appeal, the Sheriff Appeal Court held that, since there had been no counter-notice and no objection to the playing of the CCTV, the recording formed part of the evidence at the trial.11 In an appeal court context, section 118(8) of the 1995 Act provides that, where the accused had legal assistance in their defence, no conviction shall be set aside in respect of any objection to the admission of evidence at trial unless the objection was timeously stated. Applying that, the court said in McFadden and Spark v HM Advocate12 that it will only sustain arguments relating to the admissibility of evidence where no objection was taken at or before the trial in very exceptional circumstances, amounting to a fundamental failure 8

1991 SCCR 652. 2021 SCCR 31. 10 For the evidential use which may be made of such CCTV recordings, see p. 216 below. 11 The court also held that, although the certificate had been filled in carelessly, it nevertheless did contain all the necessary information. 12 2009 SCCR 902. 9

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to present the defence. In such a case, the true ground of the appeal would be defective representation rather than the evidential point. Accordingly, the time to take issue with an attempt to lead evidence which a party to criminal proceedings considers to be inadmissible is the time when that attempt is made and before the witness has had a chance to answer the offending question. Once an objection is made, the judge will want to know its content. It will often be undesirable to allow the witness to hear what the objection is, much less to hear the arguments presented, because to do so might colour their evidence and perhaps defeat the whole point of objecting. If, for example, the objection is to a leading question (by which is meant a question which merely asks the witness to confirm information provided by the questioner), the party objecting will not want the witness to hear the whole of that information, still less any explanation which might be put forward as to why the evidence is of particular significance. In such circumstances, the judge will direct the witness to leave the courtroom while the matter is being argued. The need to exclude those who should not hear the detail of the objection becomes most acute in a jury trial. Very often the judge will have to be told the nature of the evidence likely to be elicited by the question objected to, and that information will often be capable of being agreed between the parties (though without its truth being agreed). In debating the objection, it is very common for hypothetical possibilities to be aired in order to illustrate or test a party’s reasoning on some particular point. Manifestly, it would be unsatisfactory that the jury, which will eventually decide the facts of the case, to hear such information or hypotheses. Accordingly, except where the point is very short, obvious and cannot conceivably colour the jury’s deliberations, the jury will be asked to retire while the point is debated. The party making the objection will state what it is, preferably formulating the objection as a proposition of law, though this will often be implicit rather than explicit. The party who asked the question objected to will then reply and, after hearing the objector further if need be, the judge will rule on the point. Trial within a trial In Thompson v Crowe13 a full bench reviewed the way in which the law dealt with objections to statements alleged to have been made by accused persons where there is a dispute as to the factual circumstances in which the statement is alleged to have been made (for example, if the accused maintains that the statement was beaten out of them while the police maintain 13

1999 SCCR 1003.

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that it was volunteered by the accused without any pressure of any kind). It should be understood that this case predates the legislation which introduced the requirement for issues of admissibility on indictment to be dealt with before trial; but the principles apply whenever it is dealt with. The court said: ‘(1) . . . In all cases it is for the trial judge to decide whether any evidence, including evidence of a statement by the accused, is legally competent and can be led. (2) The judge must decide any issues of fact which are necessary to enable that legal decision to be taken. (3) Since the trial judge has to determine any issue of fact before ruling on admissibility, if the facts are disputed, the judge must first hear all the relevant evidence, including any evidence which the accused wishes to give on the point. (4) If the defence ask for the evidence on admissibility to be heard in the absence of the jury, the judge should ordinarily grant that motion. (5) The Crown cannot use any evidence given by the accused in the trial within a trial as proof of his guilt. There may, however, be circumstances in which the accused can be cross-examined about that evidence if he subsequently gives evidence in the substantive trial which is materially different. . .Other witnesses can, of course, be cross-examined on any differences in their evidence. (6) Where an issue arises on the evidence, it is for the Crown to satisfy the judge that the statement is admissible. The appropriate standard of proof would appear to be the balance of probabilities, as the defence conceded in this case. (7) The judge will exclude evidence of a statement if it was taken in circumstances which render it inadmissible under any rule laid down by the law. In other cases the judge will admit the statement if the Crown satisfy the judge that it would be fair to do so, by proving that the statement was made freely and voluntarily and was not extracted by unfair or improper means. (8) Any ruling on the admissibility of the evidence of a statement should be given, in both solemn and summary proceedings, after the evidence of the circumstances had been led and any submissions on the evidence have been heard. In this way, any defence submission that there is no case to answer will fall to be made on the basis of the legally admissible evidence led by the Crown. (9) Where the judge admits the evidence of a statement, evidence of the circumstances in which it was taken remains relevant to any determination of the weight which should be attached to it. (10) If the judge admits the evidence of a statement and fresh circumstances emerge in subsequent evidence which cast doubt on that ruling, the

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defence may renew their objection and invite the judge to reconsider the ruling. On reconsideration the judge may confirm or reverse the original ruling in the light of the new evidence. If the evidence of the statement has not yet been led, the judge may exclude it. If it has been led, the judge may direct the jury to disregard it or, if, because of its likely impact, the judge considers that the jury could not realistically be expected to put the evidence out of their minds, then, depending on the circumstances, the judge may desert the diet pro loco et tempore. In the case of a summary trial, the judge will disregard the evidence in reaching a verdict; only rarely would it be appropriate for the judge in a summary trial to desert the diet on the ground that it would be impossible to disregard the evidence in reaching a verdict.’

In a summary trial, in which the sheriff or justice cannot send the ‘jury’ part of themselves out for the trial within a trial, the procedure is still followed but it was held in Crooks v Russell14 that in a summary trial (by contrast with the position in a jury trial) it is not necessary for the prosecution evidence to be repeated following the decision on admissibility. Appeal By section 107B of the 1995 Act, the prosecutor may, with leave of the trial court, appeal against any decision that evidence is inadmissible. The trial will be adjourned whilst that appeal proceeds. Particular rules We have already seen that some categories of evidence are made inadmissible by statute unless notice has been given or leave to lead them has been obtained. So, for example, under solemn procedure, the accused cannot lead evidence calculated to exculpate themselves by incriminating a coaccused unless notice has been given in terms of section 78 of the 1995 Act. Another example is section 274 of the 1995 Act, which, subject to an application under section 275, provides that, in a trial of a person charged with a sexual offence as there defined, the court shall not admit evidence tending to show that the complainer is not of good character. There are many such provisions and we have taken note of the important ones in the preceding chapters. We have, of course, given detailed consideration to the regularity of investigations in Chapter Four and it is not necessary to repeat that here. What does bear reiteration, however, is that although irregularity in investigation is a ground of objection to the admissibility of evidence, irregularities may be excused and, accordingly, mere irregularity will not inevitably result 14

2002 SLT 221.

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in an objection being upheld. In Brown v Stott,15 the Privy Council recognised that a breach of ECHR in the obtaining of evidence will not necessarily result in that evidence being held to be inadmissible. Juries are often told that evidence is what the witnesses say in the witness box. It used to be that not everyone was a competent witness. Children, for example, were subject to a competency test and at common law one spouse was not a competent witness against the other except where he or she was the victim of the offence. These limitations no longer hold good. Children are no longer subject to any competency test and section 264 of the 1995 Act makes the spouse or civil partner of the accused a competent and compellable witness for any party. Moreover, it is competent for a solicitor to give evidence on behalf of his or her client, even if he or she has been conducting the trial on the client’s behalf.16 However, solicitors who are tempted to do so have to bear in mind that section 265(2), which permits this, also deprives the accused of the right to object to questions put to that solicitor on the grounds of confidentiality. The question of admissibility is, nowadays, chiefly about the nature of the evidence that the witness is asked to give, not about any characteristics that the witness might possess. Relevance – the exclusion of collateral material The first paragraph of Dickson on Evidence17 begins in this way: ‘The first and most general of the primary rules of evidence is this – that the evidence led be confined to matters which are in dispute or under investigation.’

Nothing has changed in the last 140 plus years. The basic rule of evidence is that it must be relevant to the matter to be decided by the court. Facts which are not relevant are referred to as ‘collateral’. As we noted when considering section 275 applications,18 evidence is collateral, and hence inadmissible, if it has no reasonably direct relationship with the fact to be proved.19 The reasons for excluding evidence of such facts were noted by Lord Justice-Clerk Ross in Brady v HM Advocate20: 15

2001 SCCR 62. Typically, this happens because the solicitor saw or even photographed injuries to the accused when they appeared from custody and those injuries are thought to be relevant to the accused’s account of the facts. 17 WG Dickson, A Treatise on the Law of Evidence in Scotland (Edinburgh: T&T Clark,1887). 18 See p. 169. 19 Strathmore Group v Credit Lyonnais 1994 SLT 1023. 20 1986 SCCR 191. 16

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‘The general rule is that it is not admissible to lead evidence on collateral matters in a criminal trial. Various justifications have been put forward for this rule. The existence of a collateral fact does not render more probable the existence of the fact in issue; at best a collateral matter can only have an indirect bearing on the matter in issue; a jury may become confused by having to consider collateral matters and may have their attention diverted from the true matter in issue. Whatever the justification for it the general rule is clear.’

It is usually obvious whether the evidence which it is proposed to lead is relevant. One simply asks oneself in what way the particular piece of evidence under consideration contributes to proving (or contradicting) a fact in issue. If the answer is that it does not, it is collateral and inadmissible. The frequently-heard proposition that evidence is admissible because it is relevant to the credibility of a witness is a fallacy. If evidence is relevant only to credibility, it is collateral and inadmissible. The courts also consider whether the matter about which it is proposed to lead evidence is more or less instantly verifiable and cannot be challenged. For example, the dishonesty of a witness can be proved by the production of an extract conviction. What the court will not allow, however, is evidence about some disputed matter that has no more or less direct bearing on the facts in issue at the trial and which would require diversion into a trial within a trial to determine its truth. So, in CJM v HM Advocate21 (from paragraphs 32–35 of which the foregoing principles are distilled) the appellant, who was charged with indecently assaulting the complainer between 1994 to 1996, when she was aged between six and ten, was not permitted to lead evidence that she had made a false allegation of a sexual offence against a man in 2006, there having been neither a prosecution nor a conviction in relation to that allegedly false allegation. Particular issues arise about the leading of evidence about a crime not charged on the indictment or complaint. An attempt to lead such evidence is, subject to what was said in the full bench decision in Nelson v HM Advocate,22 objectionable. In Nelson, the appellant was charged with drug trafficking offences. Evidence was led that he had, when being detained, obstructed the police. It was objected that the indictment did not contain a charge of obstruction and argued that, this being evidence of a crime not charged, it should be excluded as irrelevant. However, the Appeal Court held that the Crown could lead the evidence because what the accused did 21

2013 SCCR 215. 1994 SCCR 192.

22

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when approached by police officers was relevant to the proof of the crime which was charged. The fact that the behaviour of the accused fell within the definition of another crime, not charged, was not enough to exclude the evidence unless fair notice requires that the other crime be expressly referred to in the indictment. This would be the situation if, for example, the other crime was significantly different in time, place and character from the crime charged. This rule is sometimes misunderstood by prosecutors in summary courts, who try to include on the complaint a wholly unrelated offence as what they call a ‘common law docket’. There is no such thing. The only docket permitted is the statutory one discussed above.23 Nelson decides that evidence about conduct which is relevant to the charge that the accused faces is admissible, though if it constitutes a crime not charged fairness might require notice of an intention to lead that evidence. It does not amount to authority for a proposition that giving notice makes evidence admissible irrespective of relevancy. So, for example, in Slack v HM Advocate24 it was held to be unfair and inadmissible, on a charge of disqualified driving, to narrate that the accused had taken the car unlawfully. Character of the complainer Evidence about the character of the victim or other witnesses is generally inadmissible. It has no relevance to the merits of the case before the court. However, proof may be led in relation to offences of violence that the injured party was quarrelsome. Alison justifies this by suggesting that, where provocation is claimed as a defence, the relevancy of inquiry into the generally quarrelsome nature of the complainer lies in the fact that: ‘it is much more likely that a person of bad temper and quarrelsome habits has been betrayed into some of his usual excesses on the occasion libelled, than one who has always been remarkable for his meekness and serenity of disposition’.25

Alison also suggests that, where such evidence is to be led: ‘without doubt it will be held indispensable that due notice of the intention to bring forward such proof should have been given by the pannel, that the prosecutor may be on his guard to support his own witness’s temper by his own witnesses’.26 23

See p. 101. 1995 SCCR 809. 25 Alison ii 532. 26 Alison ii 532. 24

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It may, of course, be that the prosecutor will wish to take the initiative and lead evidence in chief of the sanguine character of the victim and this seems to be permissible,27 though the authorities are silent on the matter of notice. In general, evidence may not be led of specific acts of violence, though MacPhail has cited two cases in which this was allowed,28 these being HM Advocate v Kay29 and HM Advocate v Cunningham.30 The prohibition on proof of specific acts of violence must in general make it very difficult to prove the proposition that the victim was quarrelsome. It must make cross-examination even harder because the obvious question to ask a witness who alleges that a particular person was bad-tempered is what examples they can give (with a view to suggesting that anger was, on the particular occasions, fully justified or alternatively that the assessment of their temper is exaggerated). This is, however, precisely the question which the rule forbids. Character of the accused General Evidence as to the criminal record and character of the accused is dealt with by sections 266 and 270 of the 1995 Act rather than as a matter of the relevance of the evidence. Section 266 contains, at subsection (4), a prohibition on the asking of questions of the accused that tend to show that they have ‘committed, or been convicted of, or been charged with, any offence other than that with which he is then charged, or is of bad character, unless— (i) the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence with which he is then charged; or (ii) the accused or his counsel or solicitor has asked questions of the witnesses for the prosecution with a view to establish the accused’s good character, or the accused has given evidence of his own good character, or the nature and conduct of the defence is such as to involve imputations on the character of the prosecutor or of the witnesses for the prosecution; or (iii) the accused has given evidence against any other person charged in the same proceedings . . . ’

It is clear, then, to begin with, that where the witness is the accused the asking of questions about crimes not charged is not only objectionable as 27

Porteous (1841) Bell’s Notes 293. Macphail, Evidence (Law Society of Scotland, 1987), para. 16.07. 29 1970 JC 68. 30 Unreported, High Court, Glasgow, 14 February 1974. 28

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irrelevant upon the principle that where the question is whether a person did something on one occasion it is not relevant to show that they did a similar thing on another. It is also specifically prohibited by statute. To this is added a prohibition on asking the accused questions ‘tending to show’ that they have been charged or convicted of any offence not on the indictment or complaint and also on asking questions tending to show that they are of bad character. The simplest situation relates to previous convictions. Section 266 has to be read with sections 101(1) and 166(3) of the 1995 Act. Section 101(1) provides for solemn procedure that previous convictions shall not be laid before the jury and that reference must not be made to them in the jury’s presence before the verdict is returned. Section 166(3) prohibits in summary cases the laying of previous convictions before the judge until they are satisfied that the charge is proved. Accordingly, the prosecutor must be assiduous not to make any reference to previous convictions before the accused is convicted, especially in a jury trial. The consequences of the prosecutor making such a reference can be fatal to the prosecution, though this will not always be the case where the disclosure of previous convictions is at the hand of someone other than the prosecution. McCuaig v HM Advocate31 was a case in which the presiding sheriff asked a police officer to read out the precise terms of the charge which the police had put to the accused, who was being dealt with for attempting to pervert the course of justice by giving a false name. The charge read out by the officer, in the hearing of the jury, contained the allegation that the accused’s motive was to avoid production of a schedule of previous convictions relative to him. The prosecutor did not seek a conviction on this charge but not, presumably, because of a fear that the accused had been prejudiced, because convictions were sought in respect of other charges on the indictment and obtained in respect of sixteen of them. It was held that there was no miscarriage of justice and the convictions were sustained. Such laying of convictions does not always happen in the most obvious way. Cordiner & Another v HM Advocate,32 for example, concerned an accused charged with offences said to have been committed at a time when he was in fact in prison. He lodged a special defence of alibi to that effect and his previous convictions were thus disclosed. This was held to be a contravention of the section. The Crown could, of course, have checked this and avoided the problem and so was entitled to little sympathy for its difficulty.

31

1982 JC 59. 1978 JC 64.

32

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By contrast, we may note Johnston v Allan,33 in which a DVLA printout showing previous convictions and endorsement was accidentally seen by the sheriff in the course of trial. It was held that there had been no contravention of the 1995 Act as it could not be said that the document had been laid before the Court by the prosecutor. A further variation was O’Neill v Tudhope34 in which the service copy notice of previous convictions was returned to the procurator fiscal by the accused with his letter pleading guilty and was handed to the sheriff at court. However, the guilty plea was not accepted and a trial diet was fixed. Unfortunately the notice of previous convictions remained with the court papers, where it was seen by the trial sheriff. On appeal, it was held that there was nothing to suggest that the previous convictions came to the notice of the sheriff as a result of any decision of the prosecution nor was there any constructive ‘laying’ of convictions by prosecutor. Accordingly, the section was not breached. It will be recognised that this sort of approach depends upon the proposition that a sheriff can act properly and put things out of their mind, a principle elaborated in Kerr v Jessop,35 where the prosecutor elicited from a witness that the appellant had been previously convicted of driving while disqualified. The Appeal Court held that the prosecutor had been careless in framing the question and pressing that line and that there had been a breach of the section; but nevertheless found that a sheriff ought to be able to disregard such evidence and in this case that there had been no miscarriage of justice. The same principle applies to juries in terms of Binks v HM Advocate.36 Again, where a witness ultroneously reveals the existence and nature of a warrant outstanding against an accused that is not per se a breach of the section. This was the situation and result in Carmichael v Monaghan.37 Exceptions The prohibition in section 266 is subject to four exceptions. If one of them applies, the accused who gives evidence can be asked questions on the matters which the section would otherwise prohibit. The first exception relates to the situation where the proof of the commission of or conviction for another offence is admissible to show that the accused is guilty of the offence with which they are presently charged. The most obvious example of this is the offence of driving whilst disqualified by 33

1983 SCCR 500. 1984 SCCR 424. 35 Unreported, High Court of Justiciary, 1990. 36 1984 JC 108. 37 1986 SCCR 598. 34

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order of the court (rather than by reason of age). Evidence is not usually necessary because being disqualified is a special capacity which, in practice, is rarely challenged; but where evidence is needed, proof of the disqualification inevitably involves proof of the conviction which resulted in the disqualification. However, this does not give the prosecutor complete carte blanche as to that conviction. Rather, they will require to restrict what they prove to what is essential to proof of the new charge. It may well be, for example, that the conviction was imposed in respect of a complaint which contained a number of offences, only some of which resulted in disqualification. In such a situation an extract of the earlier conviction may be produced but only the charge which founded the disqualification may be referred to. In Boustead & Another v McLeod38 the extract conviction produced to prove disqualification contained a charge in addition to the charge required to prove the disqualification and the conviction was quashed. In another case, Mitchell v Dean,39 the extract conviction produced by the prosecutor to prove the disqualification disclosed that ‘the accused admitted six previous convictions’. This was enough to vitiate the proceedings. Graham v HM Advocate40 was a case in which one of the accused’s replies when charged by the police with a series of offences that included assault on his wife was ‘that cow’s got me the jail again’. The prosecutor led evidence of that reply. The sheriff held this to be a breach of the 1995 Act and directed the jury to ignore it. The High Court, however, took the view that the breach was ‘deliberately engineered quite unnecessarily and without any justification by the procurator fiscal’ and in the circumstances was so grave a breach that the conviction must be quashed. By contrast, Deeney v HM Advocate41 was a case in which a Crown witness, unprompted, gave evidence that the accused ‘was on licence’. This was held not to be an infringement of the section. It may well be that one factor which influenced the court in Graham was the fact that the reply had no evidential value at all. It neither assisted the Crown on the merits (because it did not constitute any kind of admission) nor the defence (because it was neither a denial nor an explanation). It was, in short, pure prejudice. The second exception has two alternatives. It applies either where the defence has, by evidence from prosecution witnesses or the accused themselves, attempted to set up the accused’s good character or where the 38

1979 JC 70. 1979 JC 62. 40 1984 SLT 67. 41 1986 SCCR 393. 39

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nature or conduct of the defence has involved imputations on the character of the prosecutor or of prosecution witnesses. The reference to imputations upon the character of the prosecutor is of virtually no practical significance. Evidence directed to the prosecutor’s character will almost inevitably be inadmissible as irrelevant and so the situation will not arise. The mounting of an attack upon the character of prosecution witnesses is of more significance. The law on this is to be found in Leggate v HM Advocate.42 In that case the essence of the cross-examination of the police witnesses was that they had conspired to fabricate evidence. It was held that this constituted an attack on the character of the prosecution witnesses sufficient to bring the exception into play and that it did not matter whether the attack was necessary to the defence on the merits. It was also held that the trial judge had a discretion whether or not to allow questions addressed to the character of the accused. In general one may expect that discretion to be exercised in favour of the defence where the attack on the prosecution witness is genuinely necessary to the defence on the merits; and in favour of the prosecution where the defence are merely mud-slinging. There is value in looking also at Templeton v McLeod43 in which it was held that an accused is afforded the protection of the section where cross-examination as to the veracity of a prosecution witness is necessary to enable the accused fairly to establish their own defence, albeit it involves an invitation to the judge or jury to disbelieve the witness insofar as they testify in support of the charge; but where such cross-examination goes further and can be seen to involve imputations upon the general character of a witness the accused may forfeit their right to the statutory protection. Conner v Lockhart44 also decided that where it is essential for an accused to establish that a Crown witness has fabricated evidence against them, this is not an attack on the character of the witness but is necessary to establish the proposed line of defence. In such circumstances the accused should not have lost their statutory protection of the subsection and should not have been cross-examined on their criminal record. The exception applies (by section 266(7)) where the reputation attacked is that of a deceased victim. It is, of course, all very well to permit the Crown to ask questions of the accused as to their criminal record or bad character where they have thrown mud at prosecution witnesses or held themselves out as being of good character; but they might not give evidence and if they do, they 42

1988 SLT 665. 1986 SLT 149. 44 1986 SCCR 360. 43

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might lie. Section 270 therefore permits the Crown to lead evidence of the accused’s criminal record or bad character where this second exception applies, even though the witnesses necessary to do so have not been on the list with the indictment. The third ground upon which questions as to character may be put to the accused is that they have given evidence against a co-accused. The meaning of the expression ‘given evidence against’ was considered in Gallagher v HM Advocate.45 The appellant was the first of two accused charged with murder case. His defence was one of alibi and that stood in stark contrast to the coaccused’s contention that the appellant had been present at the locus of the crime and had assaulted the victim. His defence did not, however, involve any attempt to incriminate the co-accused. The co-accused’s counsel crossexamined the appellant about his previous convictions and the appellant was convicted. The Appeal Court held that the appellant’s evidence about alibi clearly undermined the co-accused’s defence that, while he was present at the time of the assault, the appellant was also present and that the appellant alone assaulted the victim. If believed, it put the co-accused’s defence in jeopardy and materially increased the chances of his conviction. The appeal was refused. The fourth exception to the prohibition on reference to the accused’s previous convictions is mandatory in character. It is set out in section 275A of the 1995 Act. That provides that where the court allows evidence of the sort generally excluded by section 274 (broadly, as to the character of the victim of a sexual offence) the prosecutor ‘shall forthwith place before the presiding judge any previous relevant conviction of the accused’. Subject to certain specified safeguards, such a conviction must then be laid before the jury or (in summary proceedings) taken into consideration by the judge. This provision was considered by the Privy Council in HM Advocate v DS.46 In order to decide whether section 275A is compatible with article 6 ECHR, the board found it necessary to begin by considering the purpose of the provision. The starting point was the Parliament’s intention in section 274 of imposing restrictions on the questions that can be asked of witnesses, and especially the complainer. As Lord Hope put it: ‘The sections seek to balance the competing interests of the complainer, who seeks protection from the court against unduly intrusive and humiliating questioning, and the accused’s right to a fair trial. They lean towards the protection of the complainer’. The board recognised that, before section 275A comes into play at all, the court must have been satisfied that the three tests set out in 45

2011 SCCR 108. 2007 SCCR 222.

46

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section 275(1), and emphasised in MM v HM Advocate, are met. In that situation, there is a requirement for the prosecutor to lay any relevant previous convictions before the court and a presumption that the convictions will be disclosed to the jury. Lords Hope and Rodger were both at pains to explain that, notwithstanding what the Executive told the Parliament, the purpose of this is not primarily to attack the credibility of the accused. Lord Rodger recalled that the prohibition on referring to the accused’s previous convictions was introduced a decade before the accused became a competent witness in their own defence. At that time, the accused’s credibility was not in issue. Since they could not give evidence, they had no credibility to be considered. Rather, for both Lord Hope and Lord Rodger, evidence about previous convictions goes primarily to the propensity of the accused to commit sexual crime, and only secondarily to their credibility. Lord Brown made the same point, with particular clarity: ‘His previous conviction plainly indicates a propensity (a preparedness, if only on a single past occasion) to have his way with a woman whether or not she consents and to this extent no doubt it bears upon the credibility of his present defence of consent. But its real and substantial relevance is as to the likelihood of his having committed this fresh offence: of this being a true charge rather than a false accusation.’

Having thus identified the true (as opposed to the stated) purpose of section 275A, the Board went on to consider how the section should work procedurally. As in other cases, the need for the accused to state an objection does not place any onus upon them, even taking into account the section 275A(7) presumption that the laying of the convictions before the court is in the interests of justice. Lord Hope put the position plainly: section 275A(7) does ‘no more than set out the default position that will apply if the accused does not make an objection on the ground mentioned in para (b) of subsection (4)’ (that is, that the disclosure or taking into account of the conviction would be contrary to the interests of justice). ‘There is no burden on the accused to do more than make the objection. If an objection is made, the court must consider its merits . . . the presumption should be disregarded by the court once it has reached the stage of deciding what weight it should attach to the objection.’

Lord Hope went on to explain that the question of the interests of justice in this matter is to be tested primarily under reference to the accused’s right to a fair trial and said that this should be tested in light of the purpose of the provision. He then said that the objection ‘should be tested

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in light of what use may properly be made of the conviction with regard to the accused’s propensity to commit the offence charged, and . . . with regard to his credibility’. All of this goes to the content of the test. As to the standard to be applied, Lord Hope said that the test ‘needs to be exacting . . . in view of the risk that the jury may attach a significance to the conviction which, due to its age or other factors, it cannot properly bear’. Supposing that the objection is unsuccessful, the trial judge will require to give directions to the jury about their handling of the previous convictions. On this matter, Lord Rodger said that the judge would have to make it clear to the jury that the previous convictions are not evidence that the accused committed the crime, that they cannot constitute corroboration and that they are simply a factor to be taken into account when deciding whether to accept the evidence led in support of the Crown’s version of events. Hearsay During the judge’s introduction at the beginning of a trial, the jury is told that the evidence is what the witnesses say in the witness box. That is the general rule, though there are some exceptions. It follows that hearsay is not evidence and is inadmissible. Hearsay is simply reported speech or that which is analogous to it. Evidence of what was said as part of the alleged crime is admissible but when a witness attempts to give evidence about what someone else has said to them, that breaches the rule against is hearsay and, unless it falls within a recognised exception, it is inadmissible. Distinction between primary and secondary hearsay In considering this, we need to distinguish between primary hearsay and secondary hearsay. Statements so clearly connected with the action or event in time, place and circumstances as substantially to form part of it are characterised as ‘primary hearsay’ and are admissible in evidence. These statements are said to form part of the ‘res gestae’ – the ‘whole thing that happened’ – and this is true whether the maker of the statement is the accused or another person, whether or not a participant. This is a long-established principle and it is possible to find many examples of this in the cases. One is to be found in Glover v Tudhope47 in which a man solicited a motorist for sex. The motorist was not called as a witness but the arresting officer’s account of the conversation between the parties

47

1986 SCCR 49.

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and of the circumstances was admitted as evidence. That conversation, of course, was the whole essence of the soliciting. Other examples could be multiplied. In a fraud, the words by which the false pretence is made will, if spoken to by a person who heard them said, be primary hearsay and admissible as such. In a prosecution for threatening or abusive behaviour contrary to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010, the threats and abuse shouted by the accused will likewise be admissible as primary hearsay provided that the witness who gives evidence about them actually heard them shouted. And so on. It is, however, important to note Hamill v HM Advocate.48 In that case, during a police surveillance operation at a house from which it was suspected that drugs were being sold, a man arrived and (misunderstanding what was happening) asked an undercover officer whether he was there for ‘gear’ (i.e. drugs). The man subsequently became a co-accused of the appellant. The trial judge and, on appeal, Lord Philip dissenting, considered that the words formed part of the res gestae against the appellant. However, the appellant had not been present when the words were spoken and so the majority held that they were not admissible against him unless it could be shown that the men were acting together in pursuance of a common criminal purpose. It is another matter altogether if someone gives evidence about an event without themselves having observed it directly, so that their evidence must be based on what someone else has told them. That evidence is characterised as secondary hearsay and it will be inadmissible. Such hearsay is in its nature not susceptible to meaningful cross-examination and is therefore open to attack as being dangerous to rely upon because it cannot be tested properly. Suppose A is charged with killing B, C being an eyewitness and D having been nowhere near the scene of the crime. If, instead of calling C as a witness, the Crown was simply to call D to say what C told them about the crime, the court could not test that account at all. D would be unable to elaborate on the account given to them, unable to clear up ambiguities, unable to help to clear up discrepancies with the evidence of other witnesses and unable to respond (with any certainty) to the accusation that C had a motive to lie. Moreover, through repetition there is a danger of the original sense of what was said being distorted, especially if it has passed through a number of intermediaries before it reaches the court. For these reasons, the law excludes from evidence all forms of assertion other than those made by the witness on the basis of their own direct

48

1999 SLT 963.

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observation. The traditional explanation for this was articulated by Lord Normand in Teper v R,49 when he said: ‘[hearsay] is not the best evidence and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross examination and the light which his demeanour would throw on his testimony is lost’.

Typically, the objection will be made to reported speech but the form of the evidence or of the matter reported does not matter and the reported cases tend to concern hearsay in written reports which are submitted as evidence. In Grant v HM Advocate,50 for example, the accused was charged with putting ear lotion containing carbolic into a bottle of milk intended for his wife’s daughter (from another relationship); the child consumed the milk and became ill as a result. The wife gave evidence that the accused put carbolic in the child’s milk and the doctor who had examined the child was also called as a witness. His report was a production and contained the following passage: ‘The child was crying in extreme pain, and on asking the mother what was wrong with the child she told me that it had been poisoned. She said that her husband had done it.’

The conviction was quashed on appeal on the ground that this passage had been hearsay and therefore incompetent; and that its being given in evidence was so prejudicial to a fair trial that it was fatal to the conviction. In giving his Opinion, Lord Justice-Clerk Aitchison said: ‘it is really too plain for argument that it was incompetent to put to the jury that passage in the medical report. The evidence was hearsay and it did not cease to be hearsay because the wife had been called as a witness and had deponed to the same effect’.

Statutory exceptions to the rule against hearsay The common law rules about hearsay are modified by sections 261ZA and 259 of the 1995 Act. Section 261ZA provides that a statement made by the accused when being questioned by a constable or another official investigating an offence is not inadmissible as hearsay. It is, therefore, open to an accused who thinks that they have stated their defence sufficiently clearly when being interviewed by the police to lead evidence from the police 49

[1952] AC 480. 1938 SLT 113.

50

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about what was said and rely on that rather than giving evidence. The downside of that is that, while the evidence is undoubtedly admissible, the point can and usually will be made by the prosecutor that it has not been tested by cross-examination and that it cannot, therefore, be regarded as being as reliable as evidence given in the witness box and cross-examined. Section 259 gave effect to recommendations of the Scottish Law Commission Report Evidence: Report on Hearsay Evidence in Criminal Proceedings.51 The policy proposed by the Commission was: ‘to confirm the traditional preference for direct oral evidence over hearsay but to provide both for the prosecution and for the defence new categories of exception . . . which would allow hearsay evidence of a statement to be admitted if there were truly insurmountable difficulties in the way of obtaining the evidence of the maker of the statement from the maker personally’.52

The section allows hearsay evidence (other than of the content of precognitions) subject to the satisfaction of several conditions. By section 261, section 259 does not apply to statements made by the accused. The first, and most important, condition is that the judge is satisfied that one of five limited sets of circumstances exists.53 It is with this condition that we are here primarily concerned. The second and third conditions seek to avoid giving hearsay a higher status than direct evidence. They are that the evidence must be evidence that would be admissible if given as direct oral evidence and that the maker of the statement must be a competent witness. The fourth condition is that there exists evidence which would entitle a jury or judge to find that the statement was made and, more significantly, that the witness has direct personal knowledge of the making of the statement – in other words, that the witness who gives evidence had the account directly from an eyewitness. This excludes ‘double’ hearsay, where A comes to court to say that B told them that C said that they had seen something. The five situations are set out in subsection (2). In the first three of them, hearsay can only be led if notice has been given before the trial or with leave of the court. 51

Scot. Law Com. No. 149. Scot. Law Com. No. 149, para. 4.48. 53 The Coronavirus (Scotland) Act 2020 amended s. 259 to add a sixth situation, where to have the person who made the statement attend physically would give rise to a particular risk to the person’s well-being attributable to COVID-19 or of transmitting COVID-19 to others and it is not reasonably practicable for the person to give evidence in any other competent manner. 52

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The first situation is that the maker of the statement is dead or is, by reason of their bodily or mental condition, unfit or unable to give evidence in any competent manner. So far as it deals with death and insanity this places recognised common law exceptions on a statutory footing. However, it does represent an extension when it includes unfitness by reason of bodily condition. It was decided in Glass v HM Advocate54 that this does not include the situation in which a witness had permanent memory loss as a result of an accident and cannot remember either the incident or giving a statement. The court observed that this situation can be dealt with in terms of section 260.55 The second situation is that in which the maker of the statement is named and otherwise sufficiently identified but is outwith the UK and it is not reasonably practicable to secure their attendance at the trial or to obtain their evidence in any other competent manner. This deals with a somewhat difficult situation, because, although witnesses in foreign jurisdictions can be cited, with the assistance of the foreign authorities, they are not compellable. The third situation contemplated by section 259 is that in which the maker of the statement cannot be found, and all reasonable steps have been taken to find them. Section 259(3) would exclude the evidence in such a case if the disappearance had been engineered by the party tendering the statement; though in practice it might be hard to make that connection out. The fourth situation dealt with is that in which a witness refuses to answer questions on the ground that the answers might incriminate them. This will only apply, of course, where the witness has made such a statement to someone else already. The Law Commission thought that, in such a situation, it: ‘should not be acceptable for a criminal to disclose his criminal activity to a person outside the court and then to claim the privilege in order to prevent the disclosure of his crime to a court which requires information relevant to the guilt or innocence of an accused person’.56

The fifth and final situation contemplated is that in which a person called as a witness refuses to give evidence. Such a person would, of course, be guilty of contempt of court but this does not assist the party seeking to lead that person’s evidence. There is an evident utility in relying on the 54

2018 SCCR 379. See p. 199 below. 56 Scot. Law Com. No. 149, para. 5.61. 55

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hearsay. Any evidence may be seen as better than none. It was emphasised in MacDonald v HM Advocate57 that this only applies where the judge has expressly directed the witness to answer. It was not enough in that case that a child witness was too distressed to answer. It is not open to a party simply to spring hearsay evidence upon their opponent at trial. Section 259(5) of the 1995 Act provides that (except where the evidence is that of someone who has refused to give evidence because it might incriminate them or who has refused to take the oath) hearsay evidence cannot be lead under these provisions unless notice in writing has been given of that intention and of the witnesses and productions to be adduced in connection with the hearsay evidence. Rule 21.3 and Form 21.3 make more detailed provision and in particular Form 21.3 requires that the notice be accompanied by an affidavit of the person who will give the evidence stating what that witness will say. It is also important to note that, although the trial judge has no discretion to refuse to admit hearsay, once he or she is satisfied that one of the conditions is met, it is open to the accused to challenge the admitting of hearsay evidence in any particular case on the ground that to do so would deprive them of a fair trial, in breach of their Convention rights. In N v HM Advocate58 the Appeal Court observed that there is a continuing duty on the trial judge to consider carefully the fairness of having admitted hearsay evidence as the trial progresses and, if need be, to uphold a submission of no case to answer, to desert the diet, to direct the jury to ignore the evidence or to direct the jury to acquit. Difficulties used to arise for the Crown in relation to scientific and other reports where it turned out that the scientist who had given the report delegated some of the analysis upon which it is based to a lab technician or some other person. The reporting by the scientist of the results that had been reported to them by the technician fell to be excluded as hearsay, as the High Court decided in Normand v Wotherspoon.59 In O’Brien v McCreadie,60 however, the Appeal Court held that Normand v Wotherspoon does not apply where statute provides that the report is sufficient evidence of any fact stated in it. That case concerned a certificate as to the analysis of a drug under a provision which now finds its statutory expression in section 280(1) of the 1995 Act. By that subsection, for the purposes of certain specified offences a certificate as to specified matters purporting to 57

1999 SLT 533. 2003 SLT 761. 59 1993 SCCR 912. 60 1994 SCCR 516. 58

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be signed by specified persons is, provided it has been served on the accused not less than fourteen days before the trial and not challenged within seven days of service of the copy, sufficient evidence of the matter so certified. In O’Brien v McCreadie the Lord Justice-Clerk recognised explicitly that such documents might contain hearsay but held that the wording of the statute was decisive and that Normand v Wotherspoon was to be distinguished. The effect of section 280(4) of the 1995 Act is to extend this exception to the rule against hearsay to a great many scientific reports. That subsection provides that for the purposes of any criminal proceedings a report purporting to be signed by two authorised forensic scientists (and served and not timeously challenged) is to be sufficient evidence of any fact or conclusion as to fact contained in the report and of the authority of the signatories. By contrast with subsection (1), no limit is placed on the nature of the matters that may be certified. By subsection (5), a forensic scientist is authorised if they come into one of two categories. They may be authorised by the Secretary of State or they may be a constable possessing the qualifications and experience prescribed by the Secretary of State and authorised by the chief constable of the area concerned. Even where there is a challenge, section 280(8) provides that the evidence of both forensic scientists is to be sufficient evidence of any fact or conclusion as to fact contained in the report. It seems to follow that the reasoning in O’Brien v McCreadie must extend to that oral evidence and that the possibility of objecting to hearsay in such a report no longer exists. Not only that, but whereas the Lord Justice-Clerk in O’Brien v McCreadie noted that the certificates with which the court had to deal in that case could only be granted in cases under summary procedure, certificates under section 280(1) and reports under section 280(4) are both explicitly capable of being granted in any criminal proceedings. Previous statements One of the consequences of the introduction of the system of disclosure, which puts copies of the statements made to the police by witnesses into the hands of the defence, has been that reference to those statements during the trial has become very common. There is nothing wrong with that, in principle. Unfortunately, as Lord Bonomy commented in A v HM Advocate61 (and as other judges have commented since) ‘[i]t is a regular feature of this practice that the purpose is not clearly identified at the outset and that the examination proceeds in a fairly haphazard way’. 61

2012 JC 343.

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Previous statements can be used for a variety of purposes in a variety of ways but the best starting point is probably to recognise that it is what the witness says in the witness box that is evidence, not what he or she may have said to someone else of some other occasion. As Lord Bonomy pointed out in A,62 previous statements are always hearsay and the use of a statement for any of the purposes that the law allows always involves reliance on an exception to the normal evidential rule that hearsay is inadmissible. It follows that, before such a statement can be used, the evidential foundation for doing so has to be laid. The evidential foundations are different for each sort of use because the circumstances in which and the purposes for which statements can be used are different. If a statement is to be used, the questioner needs to know why it is being used and which exception to the rule against hearsay is being employed. Another point which is, more often than not, forgotten in practice is that if the content of a statement is to be used in evidence for any purpose at all, it has to be proved that the witness made that statement. This arises most often in relation to cross-examination under section 263(4) of the 1995 Act about previous statements which are said to be inconsistent with the evidence given. Defence lawyers regularly put it to witnesses that they said something different to the police but fail to lead the evidence of a police officer to prove that the witness did indeed say that different thing. In such a situation, juries have to be directed (and judges under summary procedure have to keep it in mind) that questions are not evidence and that questions of that sort should be ignored unless either the witness agrees that what is put to them is what they said to the police or credible and reliable evidence is led from the police officer who took the statement that the witness did indeed say what it is claimed they said. Using a statement to prove a fact Our consideration starts with the use of previous statements to help to prove a fact and we can begin with Muldoon v Herron.63 In that case, police officers said that shortly after a breach of the peace two witnesses had pointed out the accused as the perpetrators. At court, neither witness could identify him. One of them was not sure if the accused were those he had pointed out and the other denied that they were those she had pointed out. The High Court held on appeal that the evidence of the police was available to link the accused with the crime and upheld the conviction. This approach was developed in Frew v Jessop64 in which two witnesses gave evidence that 62

2012 JC 343, para. 18. 1970 SLT 229. 64 1989 SCCR 530. 63

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they had provided police officers with a description of the driver of a vehicle (who was alleged to be guilty of offences) but that they could neither recall that description nor identify the accused. The police officers gave evidence of what the witnesses had told them, which included the registration mark of the vehicle. On appeal, it was argued that this evidence was hearsay and ought not to have been admitted but Lord Justice-Clerk Ross, under reference to Muldoon v Herron, said: ‘We do not see why any different principle should be applied to evidence of this kind than is frequently applied to evidence of positive identification which the witness has been able to make shortly after the offence has been committed but which he is unable to recall by the time he gives his evidence in court . . . No doubt [such] evidence is hearsay evidence but it is hearsay evidence which forms an exception to the general rule that hearsay evidence is inadmissible.’

Evidence of this sort can only be given if the witness who viewed the identification parade or pointed out the accused attends court and gives evidence. In McNair v HM Advocate65 a police officer was asked whether a man listed as a defence witness but not present to give evidence had been asked whether he saw a particular person on the identification parade and whether he had been able to identify anyone. It was held that both questions sought to elicit inadmissible hearsay. This brings us to Jamieson v HM Advocate (No. 2)66 which has been the most common basis on which the Crown refers to previous statements (though there now seems to be a preference for section 260 of the 1995 Act). Jamieson involves a development of the Muldoon v Herron principle. A witness gave evidence that she had given a true statement to the police at the time but that she could not now remember the details of what she had said. Evidence was led from the police officer as to the content of her statement and this was held by the trial judge to have had the effect of incorporating her statement to the police into her own evidence. The argument that the police officer’s evidence had been inadmissible hearsay was rejected on appeal. The theory underlying this was explained by the Lord Justice-General (Hope): ‘Where a person identifies the alleged culprit to police officers, he is in effect telling them what he saw. He is making a statement to the police officers which is a statement of fact and ought, if possible, to be spoken to by the witness in the witness box. But if he is unable to recollect what he said to the police when he comes to give evidence, the gap in his recollection can 65

Unreported, High Court of Justiciary, 25 January 1991. 1994 SCCR 610.

66

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be filled by what police say he said to them at the time. This evidence, when taken with the witness’s own evidence that he made a true statement at the time to the police, is held to be admissible because there are two primary sources of evidence. One is the evidence as to who was in fact identified and the other is the witness’s own evidence that he identified the culprit to the police. The consistency between these two pieces of evidence provides the link between them and completes the chain.’

At paragraph 4 of his Opinion in A, Lord Bonomy explained that in relation to Jamieson that: ‘there are four elements necessary before the statement can be treated as evidence of the truth of its contents: the witness must be able to remember giving a statement to the police; the witness must be able to say that the statement was true; the witness must be unable to recollect the events spoken to in the statement; and a police officer must give evidence of recording the statement and its contents.’

The four elements identified by Lord Bonomy provide an obvious ‘route map’ for the use of Jamieson. Questions should be asked to establish the first three and a police witness called to establish the fourth and complete the chain of evidence. Again, although the statement need not be in a document, in practice the police officer will usually need to refer to the original note of the statement in order to give that evidence. Where this falls down repeatedly in practice is that prosecutors embark on the Jamieson route without recognising that, unless the officer can be got to court, the chain of evidence cannot be completed and the material from the statement which has been put to the witness is of no evidential effect. Section 260 of the 1995 Act has similar, but not identical effect to Jamieson. Subsection (1) provides that, subject to the other provisions of the section, where a witness gives evidence in criminal proceedings, any prior statement made by the witness shall be admissible as evidence of any matter stated in it of which direct oral evidence by them would be admissible if given in the course of those proceedings. In Glass v HM Advocate67 it was observed that this section can be used where a witness cannot remember the incident. They can be asked whether they adopt the statement bearing their signature and whether they would have been telling the truth when they gave it. In Niblock v HM Advocate,68 the Appeal Court said that, where this is done, the trial judge must give the jury a specific direction about the purpose of 67

2018 SCCR 379. 2010 SCCR 337.

68

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the Crown’s reliance on the statement and its evidential significance. Section 262(1) excludes statements in precognition (other than precognitions on oath) from the ambit of this section, no doubt for the reasons contemplated in Coll, Petitioner69 (essentially that a precognition is ‘filtered through the mind of the precognoscer’ and hence of questionable accuracy). Section 261(1) excludes statements made by the accused from the ambit of section 260, except where the evidence is taken from them by a co-accused. The restriction to those matters as to which the witness could competently give direct oral evidence guards against the risk that otherwise inadmissible evidence could come to be given under cover of this provision, and the particular criteria to which the provision is subjected by subsection (2) (except in the case of precognitions on oath and statements made in other judicial proceedings) are intended to provide further safeguards. First, such a statement is not admissible unless it is contained in a document, though ‘document’ is defined widely by section 262(3) and section 262(2) provides that a statement is ‘contained’ in a document where the maker makes the statement in the document personally, makes a statement which is embodied in a document by any means, whether they know it or not, or approves a document as embodying the statement. Secondly, such a statement is not admissible unless the witness in the course of evidence indicates that the statement was made by them and that they adopt it as their evidence. Accordingly, a prior statement cannot be substituted for the evidence of the witness. Third and last, the statement is not admissible unless the maker would have been a competent witness at the time it was made. Using de recenti statements to support credibility Generally speaking, statements made by a witness prior to the trial are not admissible for the purpose of supporting the credibility or reliability of the witness concerned.70 However, de recenti statements – that is, statements which are made shortly after the events in question made by one who is called as a witness – may be admitted in evidence for the limited purpose of supporting the credibility of that witness. Indeed, a five-judge bench in Ahmed v HM Advocate71 held that such statements are admissible even where the person who is said to have made them denies doing so. De recenti statements are not,

69

1977 SLT 58. Lord Justice-General (Hope) in KJC v HM Advocate 1994 SCCR 560; Lord Turnbull in Khan v HM Advocate 2020 SCCR 211. 71 2009 SCCR 861. 70

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however, substantive evidence of the facts. They only support the credibility or reliability of what the witness has said about the facts. The distinction between that which is part of the res gestae and statements which are de recenti can be a difficult one. It was somewhat blurred by HM Advocate v Stewart72 when evidence was allowed, as de recenti, of what a seven year old boy had said about forty-eight hours after seeing a murder and evidence was also allowed as ‘de recenti and in fact . . . part of the res gestae’ of what the accused had said about the victim within twentyfour hours of the crime and of what a deceased witness had said about the accused within forty-eight hours of the crime. Some remarks of the court in Andersons v McFarlane73 suggest that evidence that a servant girl, who had been assaulted by her employers, had reported the matter to her mother at the first opportunity some days later was admissible as de recenti but the issue in the case was its effect in relation to sufficiency of evidence. On the admissibility of de recenti statements it requires to be treated with some care. Perhaps the safest thing that can be said is that in any case where a statement might be de recenti the whole circumstances will have to be examined with care to determine exactly what the status of that statement actually is. Using statements to undermine credibility De recenti statements are concerned with supporting the credibility of the maker of the statement. Section 263(4) of the 1995 Act is, perhaps, the direct opposite. That section authorises the leading of evidence as to a previous statement made by any witness for the limited purpose of demonstrating that their story has not been consistent throughout and thus affecting their credibility adversely. Typically, this relates to what a witness has told the police at an early stage. The statements which can be put to witnesses in terms of such a provision as relevant to their credibility were considered in Coll, Petitioner.74 In that case, the court distinguished three categories. Whilst the category into which a statement falls will usually be obvious, it depends ultimately on the particular circumstances. Statements made in the course of the initial investigation can be put to witnesses and this will include most statements made to the police. Precognitions, which are defined as statements taken by those engaged in preparing the case for one of the parties, cannot be put because of the risk that their content is affected by the partisan interest of the precognoscer. Into this category fall 72

(1855) 2 Irvine 160 at 179. (1899) 2 Adam 644. 74 1977 SLT 58. 73

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virtually all statements taken by procurators fiscal and defence solicitors and also statements taken from defence witnesses by the police on the instructions of the procurator fiscal in response to the intimation of a list of witnesses to be called by the defence at trial. In Kerr v HM Advocate75 a statement obtained on a question and answer basis after the accused had appeared on petition was held to be a precognition and hence could not be put to the witness. On the other hand, in HM Advocate v McGachy76 Lord Sutherland held in the course of a trial that statements taken by the police on their own initiative the day after they charged the accused did not fall to be regarded as precognitions simply because the police had passed the stage of charging. The final category consists of precognitions on oath, where the procurator fiscal (or, rarely, the defence solicitor) interrogates a witness in the presence of the sheriff, the questions and answers being recorded by shorthand writer, transcribed and signed by the witness. In this case the court considered that the presence of the sheriff was a safeguard against the content being affected as might happen in an ordinary precognition. Expert witnesses Witnesses give evidence about facts. They are not entitled to express opinions and should not be asked to do so. The only exception to this is a ‘skilled’ or ‘expert’ witness. The term refers to someone who has experience or qualifications in some area of knowledge not possessed by other people. The areas of knowledge to which this applies do not, however, include the content of Scots law and that includes those rules of public international law which are part of Scots law. This is so even if counsel or solicitors are unsure of the law. The proper course is for legal submissions to be made.77 Foreign law, on the other hand, is a question of fact and may be ascertained by evidence. An example is to be found in HM Advocate v Megrahi (No. 3).78 Although the expression ‘expert witness’ is in everyday use, the expression, ‘skilled witness’ is technically more appropriate. It reflects the fact that such evidence is competent in relation to any area beyond everyday understanding and to the importance of practice as well as of formal qualifications. In Hewatt v Edinburgh Corporation79 the court, in a civil case, accepted that a police constable who had special duties in respect of road safety 75

1958 SLT 82. 1991 SLT 921. 77 Lord Advocate’s Reference No. 1 of 2000 2001 SLT 507. 78 2000 SLT 1401. 79 Hewatt v Edinburgh Corporation 1944 SC 30. 76

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could give such evidence as to the degree of danger represented by a particular hole in the road. An example of this in a criminal case is White v HM Advocate.80 Police officers had expressed an opinion that the quantity of LSD found in the possession of the accused was greater than could be expected if the drug was for the use of the accused alone; in short, that it was a dealer quantity. Appealing against her conviction, the accused contended that it was incorrect to allow police officers to give opinion evidence on the dosage of drugs a user would consume and that such opinions ought only to be expressed by medically qualified persons. Lord Justice-Clerk Ross said that this submission was not well founded. He went on to say: ‘police officers who have served for some time with the Drugs Squad do acquire knowledge of such matters as the quantity of drugs which a drugs user would consume in a day or in a week and so forth. Provided that such a witness’s qualifications as a police officer and his experience in the Drugs Squad are first established, such evidence, in our opinion, is clearly competent. Evidence of this nature is not competent only to medically qualified witnesses’.

Based on this, police officers routinely give evidence about the significance of quantities of recovered drugs and about the value of drugs on the black market. It has been said that: ‘an expert witness in a criminal trial can give 2 types of evidence. He can testify to the facts and he can give opinion evidence. The distinction is one of degree for in a broad sense everything which an expert says within his own field of expertise contains an element of opinion’.81

The distinction may be one of degree but it is, nevertheless, a useful one and it is helpful in assessing the evidence of a skilled witness to determine whether at a particular point that witness is giving evidence of fact or is giving evidence of opinion. The importance of laying the basis of fact for the opinion evidence of an expert is emphasised by Forrester v HM Advocate82 in which opinion evidence which was intended to link the accused with the crime following a comparison between material used for the crime and material said to have been found in the accused’s pocket turned out to be useless when the Crown failed to establish by sufficient evidence that the material had indeed been found there. 80

1986 SCCR 224. R Pattenden, Expert opinion evidence based on hearsay [1982] Crim. L.R. 85. 82 1952 JC 28. 81

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The factual basis for the skilled witness’s evidence is likely to come from one of two sources. Often, the skilled witness will be presented with facts spoken to by other witnesses. Indeed, in order to facilitate this, the skilled witness might be allowed to be present in court and hear the evidence of the witnesses to fact unless objection is taken, though they are excluded from court while other witnesses giving opinion evidence are in the witness box. The other source for the factual basis on which a skilled witness’s opinion is based is the examination which may have been made by the skilled witness themselves. Where the factual basis is being laid in the first part of the skilled witness’s own evidence, they will not be permitted to be in court during the evidence of other witnesses as to fact. By way of example, a forensic scientist might give evidence about an analysis of DNA samples. One of them is likely to be a swab taken from the accused under section 18(6A) of the 1995 Act.83 The taking of the swab – the basis of fact for the evidence of the scientist – will be the subject of evidence from a police officer (or, more likely, agreed in a joint minute). The result of the analysis is a question of fact. Thereafter, the scientist will go on to express an opinion about whether or not the accused could be the source of the DNA in the questioned sample. Or to take another example, a pathologist will speak first about the findings at post mortem and these will be matters of fact. They will then give evidence about the conclusions which they draw as to cause of death and this part of their evidence is opinion. The classic statement of the function of a skilled witness who gives opinion evidence is to be found in a civil case, Davie v Magistrates of Edinburgh84 where the Lord President Cooper said: ‘Expert witnesses, however skilled or eminent, can give no more than evidence. They cannot usurp the functions of the Jury or Judge sitting as a Jury . . . their duty is to furnish the Judge or Jury with the necessary scientific criteria for testing the accuracy of their conclusions, so to enable the Judge or Jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the Judge or Jury. In particular the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.’ 83

See p. 51. 1953 SC 34.

84

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It will be apparent from this that there are real limits on the function of the skilled witness. To begin with, the evidence that such a witness gives must relate to matters beyond everyday experience. Matters within everyday experience will be regarded as matters within judicial knowledge and these include such matters as the normal period of human gestation85 and the elementary principles of dynamics.86 In Doyle v Ruxton87 the Appeal Court remarked that the argument that judicial knowledge did not include the fact that widely advertised beers were alcoholic was ‘somewhat unattractive and unrealistic’. The law is anxious to ensure that the skilled witness does not usurp the function of the tribunal of fact, as the passage from Lord President Cooper’s judgment in Davie makes clear. If a judge or jury is in a position to draw their own conclusions from the facts then, as Lord Avonside observed in Assessor for Lothian Region v Wilson,88 an expert witness is not essential. In Walker v HM Advocate,89 the High Court noted that, in the circumstances of that case, it would have been open to the jury to conclude that two specimens of handwriting had been written by different people, even without expert assistance. In Megrahi v HM Advocate90 it was said by the Appeal Court that it was within the proper competence of a trial court to examine a document that it had before it, provided it did not undertake an exercise where some particular expertise was necessary. Moreover, questions which invite an expert to put themselves in the position of expressing a view on the very matter for the determination of the jury will be objectionable. In Ingram v Macari91 it was held that a sheriff had been wrong to hear expert evidence on the question whether particular magazines were liable to deprave and corrupt the morals of the lieges. That was the very issue which he had to determine. One obvious question that arises is the relationship between the evidence of a skilled witness and the literature in the relevant field. Strictly, that literature is hearsay, but this will not result in reference to the literature being excluded. A knowledge of the relevant academic literature is an important part of being an expert in many fields of knowledge. This was 85

Williamson v McClelland 1913 SC 678; Preston‑Jones v Preston-Jones [1951] AC 391. Ballard v North British Railway Co 1923 SC (HL) 43; Carruthers v Macgregor 1927 SC 816. 87 1999 SLT 487. 88 1979 SC 341 at 349. 89 1999 SLT 1388. 90 2002 SCCR 509. 91 1982 SCCR 372. 86

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the point at issue in R v Abadom92 in which the appellant argued that an expert on the analysis of fragments of glass could not rely on statistics collated in a research establishment except for those few examples with which he might have been personally concerned. The court, however, was not impressed with this argument and Kerr L J said: ‘In the context of evidence given by experts it is no more than a statement of the obvious that, in reaching their conclusions, they must be entitled to draw upon material produced by others in the field in which their expertise lies. Indeed, it is part of their duty to consider any material which may be available in their field and not to draw conclusions merely on the basis of their own experience, which is inevitably likely to be more limited than the general body of information which may be available to them . . . it is also inherent in the nature of any statistical information that it will result from the work of others in the same field, whether or not the expert in question will himself have contributed to the bank of information available on the particular topic on which he is called upon to express his opinion. Indeed, to exclude reliance upon such information on the ground that it is inadmissible under the hearsay rule might inevitably lead to the distortion or unreliability of the opinion which the expert presents for evaluation by a Judge or Jury.’

It is suggested that this passage accurately reflects Scots law as well as English. In Davie the court made it clear that passages from a published work may be adopted by a witness and made part of their evidence or may be put to the witness in cross-examination for their comment; though the court warned against the practice of the judge at first instance scrutinising published work for themselves and using passages not referred to in evidence with a view to determining the issue or assessing the testimony of the expert witness. The availability of the literature for expert evidence is not confined to published work. Some of the literature in Abadom was not published and Kerr L J said: ‘It does not seem to us, in relation to the reliability of opinion evidence given by experts, that they must necessarily limit themselves to drawing from material which has been published in some form. Part of their experience and expertise may well lie in their knowledge of unpublished material and in their evaluation of it.’

However, the court in Abadom said that there should be explicit reference to the sources upon which the expert has relied.

92

[1983] 1 WLR 126.

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Sufficiency of evidence General The need for corroboration was explained in Chapter One. There are some limited statutory exceptions to the requirement93 but for all other cases there must be two sources of evidence to prove every element of the charge which is essential to the definition of the crime (but not matters which are merely narrative) and also that it was the accused who committed the crime. The evidence may be direct or circumstantial or a combination. An admission is one source of evidence but is not, by itself, sufficient. Where circumstantial evidence is the source of corroboration, it is the combination of circumstances that matters and it is not correct to examine each circumstance in isolation.94 The question of sufficiency is a live issue in every trial, especially where there is a submission of no case to answer. Some of what was considered in Chapter One needs elaboration. Matters are usually straightforward when two witnesses give evidence about seeing the accused commit the crime, assuming that their descriptions of what happened are not irreconcilable in the way they were in McDonald v Scott.95 In that case, the complainer said she had been forced to the ground and there punched and kicked but the other eyewitness said that the complainer was punched while she was still standing up. The Appeal Court regarded this as a ‘fundamental divergence’ and the Crown conceded that there had been insufficient evidence for conviction. Mere differences, without a fundamental divergence, will not, however, elide sufficiency.96 In considering cases which are less clear, one needs to understand the purpose and nature of corroboration. Two cases are of particular assistance in this. They are both referred to regularly in considerations of what amounts to corroboration.97 They are Smith v Lees98 and Fox v HM Advocate,99 both of which dealt with corroboration of direct evidence by 93

Notably, the minor road traffic offences specified in s. 21 of the Road Traffic Offenders Act 1988. 94 W(L) v HM Advocate 2021 SCCR 15. 95 1993 SCCR 78. 96 Souter v McLeod 1999 SLT 1006. 97 Both concern sexual offences prior to the Sexual Offences (Scotland) Act 2009, which made changes to the law in relation to absence of consent. They are referred to here for what they can tell us about corroboration, not for any relevance they might have to the proof of sexual crime in particular. 98 1997 SLT 690. 99 1998 SCCR 115.

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circumstantial evidence. In Fox, the Lord Justice General (Rodger) said that ‘[c]orroborative evidence is . . . evidence which supports or confirms the direct evidence of a witness. That is the heart of the matter’. Smith concerned an allegation that the accused had taken advantage of a camping trip to cause his thirteen year old niece to handle his private parts when they were together in a tent and the particular issue was summarised by Lord McCluskey thus: ‘if a girl . . . gives evidence which the court is prepared to accept that on a specified occasion the accused committed an offence . . . by deliberately taking her hand and placing it on his naked private member (or by some other lewd act which left no physical trace), is the court entitled to hold that it has sufficient corroboration that the accused committed that offence on that occasion if the only other evidence adduced and founded upon by the Crown is evidence that (a) at the material time the girl and the accused were together, unobserved, in some private place, and (b) very shortly after the time when the girl says the incident occurred she was seen by another witness to exhibit emotional distress of a kind that led the witness to conclude that something had happened to upset the girl while she and the accused were together in that place?’.

In Fox, the allegation was one of clandestine injury to a sixteen-year-old girl who had gone to bed drunk. She said that she had woken to find the accused already having intercourse with her and immediately told him to stop. She was distressed at being thus abused. The accused, on the other hand, told the police that they had begun having consensual intercourse after she woke up, that he had at first been behind her and that because of that she had not seen his face and that when she had turned over and realised that she had mistaken his identity she had withdrawn consent, whereupon he had desisted. On the accused’s version, the complainer’s distress was attributable to her mistake as to his identity. The issue was whether distress which was equally consistent with each of the competing accounts could amount to corroboration of the complainer’s evidence. In both cases the court was dealing with a situation in which there was a credible and reliable complainer and in which such corroborative evidence as existed was circumstantial. Citing Smith v Lees, the Lord Justice General (Rodger) went on from the sentence quoted above to say: ‘the starting point is that the jury have accepted the evidence of the direct witness as credible and reliable. The law requires that, even when they have reached that stage, they must still find confirmation of the direct evidence from other independent direct or circumstantial evidence . . . the evidence is properly described as being corroborative because of its relation

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to the direct evidence: it is corroborative because it confirms or supports the direct evidence. The starting point is the direct evidence. So long as the circumstantial evidence is independent and confirms or supports the direct evidence on the crucial facts, it provides corroboration and the requirements of legal proof are met’.

On such an approach, it was held in Smith v Lees that distress can confirm that what happened was against the will of the complainer but it cannot confirm the nature of the act which happened. As Lord McCluskey put it: ‘the fact of the woman’s distress is of value in proving those facts which, as a matter of ordinary human experience, distress is apt to prove. In the present case, for example, the distress of the girl immediately after she emerged from the tent would certainly support the inference that something had happened to distress her within the tent. But does it in itself tell us anything about precisely what did happen within the tent? I do not see that it can’.

In Fox, on the other hand, the nature of the act was not in doubt. It was agreed by both the complainer and the accused that intercourse had taken place. The complainer’s distress, observed by a witness, was held to be capable of confirming her evidence that what had happened had been without her consent. The fact that it was also consistent with the account given by the accused did not deprive it of its corroborative effect. In Fox, the Lord Justice General expressly reserved his opinion as to whether there might be cases where the circumstantial evidence is ambiguous, but no reasonable jury could choose the interpretation which would support the direct evidence. This was the situation which the High Court, in Mackie v HM Advocate,100 was to characterise as that of ‘irredeemably ambiguous circumstantial evidence’. In Mackie the court did not consider that the evidence which was said to constitute corroboration was irredeemably ambiguous but did entertain an argument that evidence which could be so characterised could not be corroborative in a way which suggests that they regarded the argument as well founded in principle. It follows that the adminicles need not be of equal weight. It would be possible to cite a battery of cases to demonstrate this but particular notice should be taken of three. The first is Proctor v Tudhope101 in which a man was convicted of housebreaking with intent to steal; he was identified by the householder and it was held that the fact that a police officer identified him as having run off 100

26 July 2001. 1985 SCCR 39.

101

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when pointed out as the perpetrator of the crime was sufficient corroboration. The Lord Justice-General said that: ‘not very much was required in the way of corroboration of the testimony of the credible and reliable eye witness who identified the appellant in the act of committing the crime’.

In Ralston v HM Advocate102 it was held that where one eyewitness made an unhesitating identification there was corroboration in the evidence of a second that the accused resembled the perpetrator in that his face was the same shape and that of a third that the accused was possibly the perpetrator. Finally, in Nolan v McLeod103 it was held that there was sufficient identification where the first witness was ‘80% sure’ and the second ‘75%’ sure. Course of criminal conduct – The Moorov doctrine A particular issue arises where the accused is charged with a series of offences, each of which is spoken to by only one witness. Put shortly, a distinction is to be drawn between a series of similar but unconnected crimes, which might show a general disposition to commit a particular kind of offence on the one hand and, on the other, a course of criminal conduct systematically pursed by the accused. In the latter situation, there is ‘mutual corroboration’. This issue arises most often in cases of alleged sexual crime, because independent eyewitnesses are not usually present, but the rules about to be described are not limited to sexual or any other category of offence. Lindsay v HM Advocate104 is an example of its application to assault and robbery, and further demonstrates that the evidence identifying the accused need not be that of an eyewitness. It is, however, the case, that it only applies where the charges are all on the same complaint or indictment. The starting point is Moorov v HM Advocate.105 The accused was a shopkeeper who had, over a period of years, subjected female shop assistants to unwanted sexual attentions, always singly. In upholding his conviction the court applied a principle stated in Hume on Crimes over a century earlier. It is worth noting the way the principle was formulated by the Lord Justice General:

102

1987 SCCR 467. 1987 SCCR 558. 104 1993 SCCR 868. 105 1930 JC 68. 103

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‘Before the evidence of single credible witnesses to separate acts can provide material for mutual corroboration the connection between the separate acts (indicated by their external relation in time character or circumstance) must be such as to exhibit them as subordinates in some particular and ascertained unity of intent, project, campaign or adventure which lies beyond or behind-but is related to-the separate acts.’

In other words there must be some real connection between the acts other than the identity of the accused as the perpetrator. In Wilson v HM Advocate,106 Lord Coulsfield summarised the law in these terms: ‘In a case in which the Crown seek to prove a number of charges by relying on the principles set out in Moorov . . . they are setting out to establish that there has been a course of criminal conduct of which individual incidents, each spoken to by a single witness, are instances. In the common case of a series of sexual offences, the witnesses may be held to corroborate one another even though each of them is the only witness who speaks to the commission of any crime at all on the particular occasion about which he or she gives evidence. It is accepted that the Moorov principle is not confined to sexual or other clandestine offences. If it can be applied to theft, I see no reason why witnesses speaking to different incidents should not be held capable of corroborating one another, even if each of them is the only witness to the completed act of theft on the occasion to which his or her evidence relates. Thus, if one shopkeeper speaks to a theft by the accused of a packet of cigarettes: a second speaks to a theft of a bottle of lemonade: and a third to a theft of a packet of sandwiches, then, provided the other conditions for the application of the principle are present, it seems to me that the evidence of the witnesses may be held mutually corroborative and establish the three thefts, even though there is no other evidence of the commission or completion of any of them. To say that is not to say that the nature or identity of the goods stolen does not require corroboration. It is to say that the corroboration required for that essential element in the charge is supplied by the application of the Moorov principle . . . The Moorov principle cannot, of course, apply unless there is sufficient similarity between the circumstances of the individual incidents, including the description of the articles said to have been stolen. It would, therefore, probably not apply where the witnesses spoke to thefts of, respectively, a diamond necklace, a sail board and a bar of chocolate, whatever the other circumstances might be. It follows that the Moorov principle can most easily be applied where the articles stolen can be said to fall into a single category, such as items of food or sums of money, or under some similar description. I would, however, be reluctant to try to derive some precise rule or requirement from that 106

2001 SCCR 455.

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broad observation. It seems to me that, as with the other conditions for the application of the Moorov principle, that is, a reasonable coincidence in time, character and circumstances, it is necessary to consider the particular facts. It seems to me to be possible that there could be sufficient similarity in regard to time, method of operation and other circumstances to justify application of the principle, even where there is some diversity between the articles stolen.’

In Reynolds v HM Advocate107 the accused was charged with a charge of assault, abduction and robbery and a charge of assault and robbery. There were some similarities between them and some dissimilarities. The Lord Justice-General said: ‘As was pointed out in Carpenter v Hamilton108 cases of this kind, while they must be approached with care, raise questions of fact and degree. That is especially so where, to use Lord Sand’s expression, the case falls into the open country which lies between the two extremes . . . We accept that there was a process of evaluation to be conducted, because there were dissimilarities as well as similarities. On the other hand we do not accept that on no possible view could it be said that there was any connection between the two offences. Where the case lies in the middle ground, the important point is that a jury should be properly directed so that they are aware of the test which requires to be applied . . . When . . . regard is had to the fact that there are items in the evidence which may on one view be regarded as similarities and then balanced against the dissimilarities, we consider that this case fell within the province of the jury rather than the judge.’

Much the same point was made by the Lord Justice-Clerk (Dorrian) in Mohammed v HM Advocate,109 when, in a passage which has come to be of great practical importance, she said: ‘The doctrine requires that the charges display such similarities in time, place and circumstances of the behaviour proved in the terms of the libel, as demonstrate that the individual incidents had been component parts of one single course of criminal conduct persistently pursued by the accused. There is no rule that what might be perceived as less serious criminal conduct cannot provide corroboration of a libel seen as more serious. The fact that the nature of the alleged criminality varies significantly in degree is not of itself a reason for disapplication of the doctrine. It is the underlying

107

1995 SCCR 504. 1994 SCCR 108. 109 2020 HCJAC 27. 108

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similarity of the conduct described in the evidence, not the label which has been attached to it in the indictment, which must be examined in order to see whether the rule can be applied.’

In Stewart v HM Advocate,110 the Lord Justice-Clerk (Gill) made it clear that there is no maximum interval of time beyond which the rule in Moorov cannot apply and said that ‘even a long interval may be acceptable if there are other compelling similarities’. In practice, the longer the interval of time the more compelling the other similarities will have to be and if the time gap is longer than about seven years the similarities are likely to have to be extraordinary of compelling.111 Corroboration of confessions Confusion sometimes arises about confessions and from time to time it is thought by some that when a suspect confesses that is all that is required for a conviction. But it needs to be understood clearly that a confession has only one source and that is the accused. That is true no matter how many people hear it made or how often it is repeated. There needs to be some other source of evidence whether the confession is made to one person or to 100, whether it is made once or repeated many times. It is evidence with only one source (the accused) and not by itself sufficient. At the very least what is needed is what is contemplated by Lord Dunpark in Hartley v HM Advocate112: ‘If . . . a jury is satisfied that a confession of guilt was freely made and unequivocal in its terms, corroboration of that confession may be found in evidence from another source or sources which point to the truth of that confession.’

Having said that, although the reaction of the suspect upon being accused may sufficiently corroborate a householder’s identification of them as the housebreaker, this does not mean that the demeanour of an accused who admits a crime will corroborate their admission. In McGougan v HM Advocate113 the trial judge was held to have erred when he directed the jury that the accused’s demeanour when making an admission and in particular his attempt to throw himself out of the window were capable of amounting to corroboration.

110

2007 SCCR 303. KH v HM Advocate 2015 SCCR 242. 112 1979 SLT 26. 113 1991 SCCR 49. 111

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‘Special knowledge’ Often a confession will be corroborated by direct evidence. The law recognises, however, that sometimes there will be material in the confession which can be shown to be true and which only someone present at the crime could have known; and that will be enough. The rule starts with Alison114 where he says: ‘If a person is apprehended on a charge of theft and he tells the officer who seized him that if he will go to such a place and look under such a bush he will find the stolen goods; or he is charged with murder or assault and he says that he threw the bloody weapon into such a pool, in such a river and it is there searched for and found, without doubt these are such strong confirmations of the truth of the confession as renders it of itself sufficient if the corpus is established aliunde to convict the prisoner.’

This was the situation in Manuel v HM Advocate115 in which a murderer confessed and told the police accurately where a body and clothing were to be found and was hanged on the strength of it. The situation in contemplation in Alison and in Manuel was one where the investigator checked afterwards what was disclosed for the first time in the accused’s confession; and the possibility of fabrication is for practical purposes excluded. However, the rule is not confined to cases where the information was previously unknown to the police. In Wilson v McAughey116 police found a mechanical digger submerged in the Clyde with a broken window. The accused subsequently admitted vandalism and described breaking the window and driving it into the river. The sheriff acquitted because the digger had not been found as a result of the confession as contemplated in the authorities discussed above; but the High Court overturned that acquittal, holding that it was enough if the confession contained what has become known as ‘special knowledge’ even if it was known to the police. Where the relevant facts are known to others than the police, Wilson v HM Advocate,117 which concerned knowledge of the way in which a murder had been committed and the body position, such knowledge having become public, establishes that it is a jury question whether the confession can be said to contain knowledge that is special enough to amount to corroborative material. The detail in such a confession need not be very substantial. In Hutchison v Valentine118 the words ‘I canna really mind where aboot in the hotel I got it. I 114

Alison ii 580. 1958 JC 41. 116 1982 SCCR 398. 117 1987 SCCR 217. 118 1990 SCCR 569. 115

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was drunk. I dumped it’ were held to be sufficient where there was evidence that a stolen television had been abandoned in the hotel car park. Following Gilmour v HM Advocate119 where a statement contains points of identity with the crime and points of discrepancy, it is for the jury to decide how far they will rely on it. It must be emphasised that the existence of a confession is the essential starting point for this process. In Beattie v HM Advocate120 the fact that the accused had special knowledge was not sufficient where it occurred in the context of a denial. Fingerprints, DNA, CCTV, etc. Fingerprints, handwriting and the like are a trap for the unwary. Although on one view a fingerprint is only one source of evidence, it was held in Hamilton v HM Advocate121 and HM Advocate v Rolley122 that it will be sufficient where each step is corroborated – so that there will be two witnesses to the finding of the print at the locus, two to the taking of a print from the accused and two experts to make the comparison (it being clear from McKillen v Barclay Curle & Co Ltd123 that expert witnesses require corroboration like anyone else when their evidence relates to the essentials of a case), though section 26(7) of the Criminal Justice (Scotland) Act 1980 is authority for only calling one expert in this and similar situations where notice of that intention has been given to the defence. If any of the stages is spoken to by only one witness, the evidence ceases to be sufficient in itself and requires corroboration from some other source. In Maguire v HM Advocate,124 the same reasoning was applied to the finding, on a mask used in a robbery, of DNA which matched that of the accused. Lord Hamilton (with whom the Lord Justice-General concurred) noted that the mask was intimately connected with the crime, that the DNA evidence pointed to the appellant having at some point had the internal surface of the mask against his skin and that the accused offered no explanation for that – rather, he denied ever having had any contact with the item. Lord Hamilton held that there was sufficient evidence to allow the case to go to the jury and for them to decide what inference they drew from the DNA evidence. The conviction was upheld. 119

1982 SCCR 590. 1995 SLT 275. 121 1934 JC 1. 122 1945 JC 155. 123 1967 SLT 41. 124 2003 SLT 1307. 120

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It is very common for the Crown to lead the evidence of a recording of the events which give rise to the charge, frequently on a city centre CCTV system or a security system in a pub or a club. In Gubinas v HM Advocate,125 the Appeal Court held that, provided the provenance of the recording is proved by the evidence of two witnesses,126 the recording becomes evidence which the jury can use to determine facts, irrespective of concurring or conflicting evidence. The court also held that, if the issue related to the identification of the accused, the jury could draw their own conclusions from a comparison of the footage with a photograph of the accused taken at about the same time as the incident, if that photograph was also spoken to by two witnesses. The court commented that the situation is little different from that in which DNA is found at a locus, except that, whereas DNA requires expert evidence, identification does not. In Shuttleton v Orr,127 the same reasoning was applied in the context of a summary trial.

Chapter overview • Various matters of “routine evidence” as specified in Schedule 9 to the Criminal Procedure (Scotland) Act 1995 can be proved by certificate. If the certificate is served and not challenged within seven days, it becomes evidence. • In general, evidence is what the witnesses say; productions do not stand on their own. • The approach which Scots law takes to evidence is exclusory – that is, breach of the rules makes evidence inadmissible provided objection is taken timeously. • Evidence is confined to matters which are in dispute or under investigation; if evidence has no reasonably direct relationship with a fact to be proved, it is collateral and inadmissible. • Evidence which relates only to the credibility of a witness is collateral and inadmissible. • The Crown cannot lead evidence of any crime which is not charged. • Evidence about the character of the complainer or other witnesses is inadmissible except that evidence can be led that the injured party was quarrelsome if the crime charged is one of violence.

125

2017 SCCR 463. Or by certificate – Wishart v Procurator Fiscal, Kirkcaldy 2021 SCCR 31. 127 2019 SCCR 185. 126

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• Evidence cannot be led to show that the accused has committed, been convicted of or charged with any offence not charged except: if the proof of that other offence is admissible to show that they are guilty of the offence with which they are charged; if the accused or their counsel or solicitor has asked questions of witnesses for the prosecution with a view to establishing their own good character; if the accused has given evidence of their own good character; if the nature or conduct of the defence involves imputations on the character of the prosecutor or witnesses for the prosecution; and if the accused has given evidence against any other person charged in the same proceedings. • Primary hearsay – evidence of something said which is so closely connected with the crime as to form part of it – is admissible. • Secondary hearsay – evidence given by someone who did not see or hear the events about what someone else has told them about them – is not admissible unless leave has been given in terms of section 259 of the Criminal Procedure (Scotland) Act 1995 (which requires the satisfaction of specified conditions). • Previous statements can be used to prove a fact if: A witness gives evidence that they gave a statement to the police. The witness gives evidence that the statement was true. The witness gives evidence that they cannot recollect the events spoken to in the statement. A police officer gives evidence of recording the statement and its contents. • Under section 260, the previous statement of a witness which is contained in a document and which the witness adopts is admissible as evidence of any matter stated in it. • A statement made by a witness shortly after the events in question (a ‘de recenti’ statement) may be admitted in evidence for the limited purpose of supporting the credibility of that witness. • Under section 263(4) a witness may be examined as to whether they have, on a specified occasion, made a statement on any matter pertinent to the issue at trial different from the evidence given by them at trial and evidence may be led to prove that they made that different statement. • Unlike other witnesses, who may only give evidence of facts, expert or “skilled” witnesses may give opinion evidence but must not stray into usurping the function of the court in deciding the facts of the case. • With limited statutory exceptions, no one can be convicted on the evidence of a single witness. The essential facts – that the crime was

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• •

• •

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committed and that the accused committed it – must be corroborated by other direct or circumstantial evidence. It is sufficient if there is circumstantial evidence which confirms or supports the direct evidence. If the facts proved display such similarities in time, place and circumstance as demonstrate that the individual incidents were component parts of one single course of criminal conduct persistently pursued by the accused the evidence of a series of single witnesses, each speaking to a different incident, is mutually corroborative (the “Moorov” doctrine). If the accused makes an admission, which includes information that only someone present at the crime can have known and which is proved to be true by other evidence, there is sufficient evidence. If a CCTV recording is shown, provided the provenance of the recording is proved by the evidence of two witnesses, the recording is evidence from which a jury may draw their own conclusions.

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Chapter twelve

The Trial: Procedure

The trial is the point at which all the investigation and preparatory work should come together. The evidence is led and a decision is taken about whether it does or does not justify conviction. In this chapter, we shall examine, first, the procedure under which that is done and, second, the rules of evidence which apply. Failure of the accused to appear First, we have to take notice of a practical reality. The accused is required to attend at their trial. Frequently, especially in summary cases, the accused fails to appear. If they fail to attend without reasonable excuse they commit an offence under section 102A(1) or section 150(8) of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act). If the accused has been on bail, they breach the standard condition which requires them to attend court and commit an offence under section 27(1)(a) of that Act. The usual response to the failure of the accused to appear is the issuing of a warrant for their arrest under section 102A(2) (solemn procedure) or section 150(3) (summary procedure). Under solemn procedure, the indictment falls when such a warrant is issued,1 though once they are arrested the proceedings will be recommenced, probably with a failure to appear charge added. Section 65(2) of the 1995 Act provides that the twelvemonth time bar on indictment does not bar the trial of an accused for whose arrest a warrant has been granted in respect of failure to appear. Under summary procedure, the complaint does not fall but the trial does not proceed until the accused is brought back before the court (at which point it is open to the Crown to seek to amend the complaint by adding a failure to appear charge,2 though it is more common for them to raise a separate complaint dealing with that charge). It is possible for the Crown, under summary procedure, to ask the court to allow the trial to

1

1995 Act s. 102A(5). 1995 Act s. 150(10).

2

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proceed in the absence of the non-appearing accused3 but it is so rare for that to happen in practice that it does not merit more detailed consideration here. Back-up trials and call over More often than not, the accused does attend for trial. It is open to them to plead guilty at that stage and that happens in a significant proportion of cases. In that event, the court proceeds to the sentencing stage. In some other cases, either the prosecution or the defence seeks an adjournment, and any such application is dealt with in terms of the considerations discussed above.4 The risk of trials not going ahead and court time being unused is dealt with by over-booking. In a court which is dealing with indictment cases, efforts are made to always have a ‘back-up’ trial that can be run if the priority trial does not proceed. In a summary trials court, there is usually a list of half a dozen trials and the trials are called in turn at the start of the court day to find out which ones are going ahead and to deal with the cases that are not going to trial as necessary.5

Commencement of the trial Summary trials Unless there are any procedural issues that parties need to raise with the court, a summary trial begins with the calling of the first witness for the prosecution. Indictment Jury selection In a trial on indictment, it is necessary to select the jury. In preparation for the trial, the clerk of court cites members of the public, from whom the jury are to be chosen, to attend on the day fixed for the start of the trial. The clerk has power to excuse attendance, either in advance or on the morning of the trial where a potential juror explains that he or she has a difficulty in serving. Rule 14.1A(1) of the Act of Adjournal (Criminal Procedure Rules) 1996 (the Criminal Procedure Rules) provides that where there are fewer than thirty potential jurors in attendance it is not competent to ballot the 3

1995 Act s. 150A(1). See p. 153. 5 During the COVID-19 pandemic, summary trials are being assigned to two-hour ‘slots’ during the court day to manage the footfall in court buildings. Typically, about five trials are set down, with two assigned to 10am, two to noon and one to 2pm. 4

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jury. In that event, the court makes whatever order it thinks fit in the interests of justice. The most obvious order would be an adjournment of the trial. The procedure for choosing the jury is set out in section 88 of the 1995 Act and rule 14.2 of the Criminal Procedure Rules. The name and address of each potential juror is written on a separate piece of paper. Each piece is folded and placed into a container (which looks like a large goldfish bowl or old-fashioned sweetie jar). There they are mixed and from there6 the clerk of court draws out the names one at a time. Each juror thus selected takes his or her place in the jury box unless challenged on cause shown under section 86(2) of the 1995 Act until all fifteen places are filled. Once fifteen jurors have been selected, the 1995 Act section 88(5) requires that the indictment should be read to them. Where the indictment is long or complex, the section contemplates that a summary approved by the judge may be read instead (though this is rare). Copies of the indictment, without lists of witnesses or productions, are provided for the jury. Where the accused has lodged a special defence, that is read to the jury after the indictment, as required by the 1995 Act section 89 and a copy of that is given to the jury as well. However, notices of intention to lead evidence calculated to exculpate the accused by incriminating a co-accused7 are neither read nor distributed. After the indictment and any special defence have been read, the jury take their oath. At this point, it is said that the indictment has been ‘remitted to an assize’ and it is proper to refer to the accused as ‘the pannel’. It is no longer possible to substitute a new juror if a difficulty arises in relation to an empannelled juror continuing to serve. By the 1995 Act section 90, where a juror dies or, for some other reason (illness is the obvious example), cannot appropriately continue to serve, the court may direct that the 6

During the COVID-19 pandemic, juries are being located in cinemas, remote from the court. The jurors are seated at a distance from one another. They are able to see what is happening in the court on the cinema screen and hear it via an audio link. The process for balloting jurors is spread over two days. On the first day, the clerk draws the names of the jurors in the usual way but also draws the names of five reserve jurors. The twenty people thus selected are telephoned and asked to attend at the “jury centre” – the cinema which is being used for juries. They attend on the second day and the procedure as described in the text takes place remotely. The reason for the reserve jurors is that it is common for a juror who has been selected to be unable to serve (for example, because they know someone involved in the case). In normal times, one of the people who have attended but not been selected is chosen by ballot as a substitute. Under the remote procedure, the reserves are used in the order in which they were balloted. 7 1995 Act s. 78(1).

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trial shall proceed before the remaining jurors, though their number may not fall below twelve. If it does, the proceedings have to be deserted pro loco et tempore and recommenced before a new jury. Judge’s introductory remarks The potential jurors who have not been selected for jury service are released (though they might be required to return within a day or two to be available for another trial) and the presiding judge speaks to the jury briefly explaining the framework of the trial, introducing the prosecutor and defence lawyer(s), explaining that the jury and the judge have different functions and that the jury alone decide the facts, explaining that they must decide the case on the basis of the evidence and must not make other enquiries of their own, pointing out that the burden of proof is on the prosecution and warning them not to discuss the case with anyone. Written directions A new procedure was introduced with effect from July 2020. Juries are given a document setting out the general directions in law which apply to every case, with additional specific directions relating to the case which they are to try. The trial judge reads that document out to the jury after the introductory remarks and the jury have it available to them throughout the trial. At the end of the trial, the jury are reminded about the document and the trial judge elaborates on those aspects which need further explanation in relation to the particular trial. The written directions which are handed out are, at the time of writing, to be found in Appendix G to the Amalgamated Briefing Paper on Restarting Solemn Trials.8 They deal with: • • • • • • • •

The differing functions of judge and jury. Joint minutes. What constitutes evidence and what does not. Assessing witnesses and their evidence. Inference; direct evidence and circumstantial evidence. The presumption of innocence. Burden of proof. Standard of proof.

8

Sheriff Alistair JM Duff, November 2020, available online at https://www. judiciary.scot/docs/librariesprovider3/judiciarydocuments/judicial-institutepublications/public-version_amalgamated-briefing-paper-on-restarting-solemntrials-updated-21012020.pdf?sfvrsn=8895b1ab_2 (last accessed 15 June 2021).

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• Corroboration. • The accused is not required to prove their innocence. To this are added, as appropriate, directions about dockets,9 special defences,10 the need to consider and decide on each charge separately, the need to consider and decide the case separately in relation to each accused, concert and mutual corroboration.11 These remarks having been made, the court invites the prosecutor to call the first witness. All cases Part-heard trials Section 91 of the 1995 Act provides that a trial on indictment is to proceed from day to day, unless the court sees just cause to adjourn over a day or days – in other words, for some longer period. Such a longer adjournment occurred in Kyle v HM Advocate,12 where the trial judge began his charge to the jury (at the end of the trial) on a Friday afternoon, it being a holiday weekend. He had not completed it by 5pm and gave the jury the choice of sitting on the Saturday or adjourning until the Tuesday; they chose the Tuesday and the case was adjourned over the holiday Monday to the Tuesday. There was an appeal on the ground that there had been a failure to comply with the requirement to proceed from day to day, but the Appeal Court gave that short shrift, Lord Justice-Clerk Ross commenting that the decision was one for the trial judge, who had no obligation to consult either prosecution or defence on the matter, and that it is impossible to define exhaustively what would amount to ‘just cause’. Trials under summary procedure, if they are not concluded within the first day (as most are) are adjourned part-heard to some other convenient day as soon as possible after the first day. The examination of witnesses The prosecutor calls the Crown witnesses in turn, each of whom takes the oath or affirms. He or she is then examined in chief for the prosecution, cross-examined on behalf of the accused if necessary, and then re-examined by the prosecution.

9

See p. 101 above. See p. 15 above. 11 See p. 210 below. 12 1987 SCCR 116. 10

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Aides memoire The Scottish criminal courts have traditionally relied heavily on oral evidence and, even though there is an increasing use of written material, the oral evidence of witnesses is still of huge importance. Memory, however, can be an unreliable thing, especially in relation to details which do not, at the time of the incident, strike the observer as being of critical significance. On the basis that notes made while an incident is fresh in the memory are more likely to be reliable than unaided memory months – or years – later, the courts allow witnesses to refer to such notes in the course of giving their evidence, provided that they are original notes (not transcriptions) made by the witness themselves (otherwise they fall foul of the rule against hearsay) and made at the time of the incident or so soon after that the incident is still fresh in the memory (otherwise their value as an objective and accurate note of events disappears). Police officers in particular are in the habit of giving evidence under reference to their notebooks in this way. There is, however, no reason at all why other witnesses who possess such notes should not have their assistance. Such notes do not require to be lodged as productions in the case. There is, however, still an underlying preference for the oral evidence of the witnesses. In Deb v Normand13 when the accused (who was charged with driving through a red traffic light) argued that the police officer’s notebook, which was not used at trial, was the best evidence (in that it was more likely to be reliable than the officer’s recollection) the Appeal Court made it clear that the notes are subservient to memory: ‘The best evidence of the state of the traffic signal and that it was at red was the evidence of Constable Scougall of his recollection. That recollection, he said, was assisted by his having refreshed his memory by reference to the notebook. But the refreshing of a witness’s memory by reference to a document does not make that document the best evidence.’

Section 261A of the 1995 Act goes beyond notes made the witness themselves. Summarised, it provides that where a witness has made a statement which both the prosecutor and defence have had an opportunity to see, the court may allow the witness to refer to the statement while giving evidence. Presence of witnesses in court It is unusual for a witness to be in court before they give evidence, though section 267 of the 1995 Act does make provision for the court to permit this to happen if it appears that the presence of the witness would not be 13

1997 SLT 107.

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contrary to the interests of justice. Where it happens that a witness is in the court before giving evidence but without such permission, section 267(2) leaves it to the discretion of the court whether to admit the evidence of the witness. The issue, of course, is whether the evidence of the witness has been coloured by what they have heard and so the subsection limits the exercise of the discretion to cases in which it appears to the court that the presence of the witness was not the result of culpable negligence or criminal intent and that the witness has not been unduly instructed or influenced by what took place in their presence or that injustice will not be done by their examination. MacDonald v Mackenzie14 makes it clear that the onus is on the party tendering the witness’s evidence to satisfy the court that the discretion should be exercised in their favour. Questioning witnesses The kind of questioning which is permissible and (as a matter of good technique) appropriate in examination in chief, on the one hand, and cross-examination, on the other, differs. For example, leading questions ought not to be asked in examination in chief or re-examination but they are permitted in cross-examination. In practice, few will object to the use of leading questions in examination in chief where they deal fairly with matters known not to be in dispute. In cross-examination, the use of leading questions is a technique which is positively encouraged by those who teach advocacy. In re-examination, leading questions are almost always objectionable.15 This is not a book about advocacy. Nevertheless, it might be helpful to point out that one who leads the evidence of a witness or who rises to crossexamine does well to keep this question in the forefront of their mind: ‘Why am I asking this question of this witness at this time in this way?’. There is only one correct answer, at least to the part about why the question is being asked. It is that the answer to the question is required as the basis of a submission to be made to the court at a later stage. Particular care is needed in cross-examination. How much to ask in cross-examination is a matter of professional judgement but just taking the witness through his or her evidence for a second time and accusing them of lying at every stage (as happens with depressing frequency in every trials court), is likely to reinforce the evidence of the witness and to damage the cross-examiner’s case. Witnesses do not usually change their accounts the second time through, 14

1947 JC 169. A leading question is one which suggests the answer required. ‘Did the accused stab you?’ is a leading question. ‘What happened to you?’ is not.

15

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though they often fill in details that were missing the first time. They rarely agree that they were lying and asking them if they were doing so is unlikely to be productive. On the other hand, they might agree that they could be mistaken and such a concession, made in relation to a matter about which the cross-examiner expects to lead evidence to different effect from what the witness said in examination in chief, can be helpful. Asking questions about that might be essential. It was made clear in Burgess v HM Advocate16 that a failure to put to earlier witnesses in cross-examination what an accused, or any later witness, says in evidence about something about which the earlier witness has given evidence does not make the evidence of that later witness inadmissible but that the failure may expose the accused to adverse comment as to their credibility. On the other hand, in Begg v HM Advocate17 the High Court approved of the observations of the English Court of Appeal in R v Lubema18 that an advocate cannot insist on ‘putting his case’ in that way to a vulnerable witness. No case to answer submissions Once all the evidence has been led for the Crown, it is open to the defence to submit in terms of sections 97 or 160 of the 1995 Act that there is no case to answer. This is a submission about sufficiency of evidence, not about the credibility or reliability of witnesses. The submission must be that there is no case to answer both on the offence charged and on any other offence of which the accused could be convicted, so that if it would be open to the jury or the judge to convict of an amended or alternative charge a submission of this sort will be repelled. Schedule 3 to the 1995 Act provides for a range of alternative verdicts. In terms of paragraph (8) offences of dishonesty are very nearly interchangeable, and in particular on an indictment or complaint charging theft it is open to the jury or judge to convict of reset. In terms of paragraph (10) a person charged with a completed crime may be convicted of attempt at that crime and, indeed, where the charge is one of attempt the accused may be convicted of attempt even if the evidence is enough to establish the completed crime. In Muldoon v HM Advocate19 the crime charged was assault with intent to rape but the evidence established a completed rape. He was convicted of the offence libelled and the conviction was upheld on appeal. Some statutes, such as section 50 of the Sexual Offences (Scotland) Act 2009 or section 23 of the Road Traffic Offenders 16

2010 SCCR 803. 2015 SLT 602. 18 [2015] 1 WLR 1579. 19 1967 SLT 237. 17

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Act 1988, make detailed provision for the alternative verdicts which are available to a court in relation to particular charges. The submission of no case to answer may be in relation to the charge as a whole or to any part of the charge said not to have been established in evidence. For example, in HM Advocate v Stewart and Stewart,20 the accused were charged that they ‘did abduct [the complainer] and detain him against his will and assault [him]’ in various specified ways, which included the use of a baseball bat and a metal pole. The sheriff upheld a plea to the relevancy of the charge and commented that it would cause difficulties for the accused if they wished to make a submission of no case to answer because ‘the submission could not effectively be made because not could not strike down the whole charge’. On appeal by the Crown, the Lord Justice-Clerk (Gill) explained, under reference to Cordiner v HM Advocate21 that it would always be open to the defence to present an argument in terms of section 97 in relation to all or any part of the charge said not to have been established in evidence. He gave as examples the part of the charge relating to abduction (which constitutes a distinct crime) or ‘the part of the assault relating to the use of a baseball bat’. The jury should be directed to delete any part of the charge on which the submission has been sustained. Subsection (2) of each section sets out the test which the court must apply to such a submission, which is whether there is insufficient evidence in law to justify the accused being convicted. Considerations of quality of evidence have nothing to do with this, as the High Court made clear in Williamson v Wither22 as follows: ‘[the section] provides that the evidence led by the prosecution is insufficient in law to justify the accused being convicted. It is not whether or not the evidence presented is to be accepted and therefore the only question before the Court at that stage is whether there is no evidence which if accepted will entitle the Court to proceed to conviction.’

That was reiterated in W(L) v HM Advocate,23 in which the Lord JusticeGeneral (Carloway), dealing with a question of sufficiency of evidence about absence of consent in a rape case, said that: ‘the evidence relied upon by the Crown is to be taken at its highest. It is to be interpreted in the way most favourable to the Crown’.

20

2010 SCCR 341. 1991 SCCR 652; see also Young v HM Advocate 1997 SCCR 647. 22 1981 SCCR 216. 23 2021 SCCR 15. 21

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The essentials of sufficiency of evidence were set out in Chapter One.24 Aspects of that are considered in greater detail in the second part of this chapter. If the submission succeeds, then the accused must be acquitted in relation to the charge or charges affected by the submission; and, of course, this might mean all of the charges on the indictment or complaint, in which case the trial is over. The trial proceeds only in respect of charges in respect of which there has been no submission or no successful submission. On indictment, section 107A of the 1995 Act gives the Crown a right of appeal against a decision that there is no case to answer. That right is used only occasionally and, almost exclusively, in High Court trials. It involves an adjournment of the trial, part-heard, while the appeal takes place.25 Defence case If the trial is continuing past the close of the Crown case, the defence are entitled to call evidence. If the accused is to be a witness they should give evidence before any other defence witnesses.26 Where there are multiple accused, they lead their evidence in turn. So the first accused will give evidence, followed by any witnesses they wish to call; then the second accused will give evidence, followed by any witnesses they wish to call; and so on, until all of the accused have given or led evidence. Recalling witnesses Sometimes it turns out during the evidence of a later witness that there are questions which ought to have been asked of an earlier one. Section 263(5) of the 1995 Act provides that: ‘In any trial, on the motion of either party, the presiding judge may permit a witness who has been examined to be recalled.’

In Leadbetter v HM Advocate27 the Lord Justice-General (Carloway) regarded this provision as the solution to the problem which arose for the Crown when the procurator fiscal did not ask police officers to identify labelled productions as the items taken when the accused’s home was searched. He assumed that she had simply forgotten to do so and commented that it was a pity that she did not ‘own up to it and ask for permission to recall the officers’ under section 263(5). He referred to Todd v McDonald,28 in which 24

See p. 7. See p. 283 below. 26 1995 Act s. 266(11). 27 2021 SCCR 21. 28 1960 JC 93. 25

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a sheriff allowed the procurator fiscal to recall a witness to identify the accused and the High Court held that the purpose for which a witness might be recalled was not limited to clearing up ambiguities but extended to any point inadvertently omitted in the witness’ original evidence. In Leadbetter Lord Carloway commented that ‘[g]iven that the point was a technical one and related to a matter which was not in dispute, it would have been somewhat harsh to refuse such a motion’. It should be kept in mind that in Todd the procurator fiscal realised before the close of the Crown case that he had omitted to have the accused identified and made the motion to recall at once. In Leadbetter, too, it appears that the error was recognised during the Crown case. Once the Crown case is closed, things might be different. In Parracho v HM Advocate29 the advocate depute, having discovered when the defence made a submission of no case to answer that he had forgotten to lead evidence linking a DNA sample to the accused, persuaded the trial judge to desert pro loco et tempore. Holding that the trial ought not to have been so deserted, the Appeal Court, in an opinion delivered by the Lord Justice-General, said: ‘It is a fundamental rule of our criminal procedure that the Crown must lead all the evidence it proposes to lead before it closes its case. The statutory exceptions to that rule. . .are closely circumscribed. A procedural irregularity in relation to any requirement of proof cannot be excused . . . Desertion pro loco et tempore is an established and useful procedural disposal but is a course to be followed only in exceptional circumstances.’

Additional evidence Section 268 of the 1995 Act deals with additional evidence, which is defined by subsection (2) as evidence which the judge considers is prima facie material and in respect of which they accept that at the commencement of the trial either the additional evidence was not available and could not reasonably have been made available or the materiality of the additional evidence could not reasonably have been foreseen by the party. By section 268(1) an application to lead such additional evidence may be made at any time before the commencement of the speeches to the jury (in a trial on indictment) or the prosecutor’s address to the judge on the evidence (in a summary case). Evidence in replication Section 269 deals with ‘evidence in replication’, which is evidence led by the prosecutor either to contradict defence evidence or to establish that 29

2011 SCCR 257.

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a witness has previously made a statement which is inconsistent with the evidence which he has given.30 The prosecutor, who may apply to do so after the close of the defence evidence and before the commencement of the speeches to the jury or their own address to the judge on the evidence. The test in relation to evidence to contradict defence evidence is whether the evidence of the defence witness could reasonably have been anticipated by the prosecutor and, as was made clear in MacGillivray v Johnston (No. 2)31 and Neizer v Johnston,32 evidence in replication cannot be used to palliate inadequacies in the Crown preparation or presentation of the prosecution. In the latter case, Lord Sutherland drew a clear distinction between the situation in which the Crown had received clear intimation of a line of defence (as in that case) and that in which a line of defence had been sprung on the Crown during the course of the trial. Submission as to sufficiency of evidence In a trial on indictment, section 97A of the 1995 Act (which is rarely used in practice) permits the accused to make submissions either after the close of the whole evidence or after the prosecutor has addressed the jury. Those submissions are: (a) that the evidence is insufficient in law to justify the accused’s being convicted of the indicted offence or any other offence of which the accused could be convicted under the indictment (a ‘related offence’), or (b) that there is no evidence to support some part of the circumstances set out in the indictment. By section 97B, if the judge is satisfied that the evidence is insufficient in law to justify conviction, the accused is entitled to be acquitted. However, if the judge is satisfied that the evidence is sufficient to justify conviction of ‘a related offence’ (that is, any other offence of which the accused could be convicted under the indictment33) the judge must direct the amendment of the indictment. By section 107A, the prosecutor may appeal the outcome of such a submission.34

30

The use of such a prior inconsistent statement in order to discredit a witness is discussed at p. 201. 31 1994 SLT 1012. 32 1993 SCCR 772. 33 See p. 232. 34 See p. 283 below.

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Speeches After all of the evidence has been led the prosecutor addresses the jury or (in a summary case) the judge. The accused or their legal representative then do so in their turn, in the order in which their names appear on the indictment or complaint if there are multiple accused. Sections 98 and 161 of the 1995 Act specifically preserve the right of the accused to speak last. In Duke v Griffiths35 the Appeal Court held (following earlier authorities) that a sheriff who convicted the accused without giving the defence solicitor an opportunity to make submissions had erred and that, provided there were material issues (such as credibility of witnesses) about which submissions could be made, failure to give the opportunity is an irregularity of a kind that inevitably means that the trial is not fair so that any conviction obtained has to be quashed. If a party, in addressing the court on the evidence, makes points about the evidence when they did not cross-examine the witnesses on those matters, the court is entitled to take that failure into account in deciding whether to give the arguments any weight at all.36 It might, after all, be that the witness could have answered the point if the party had possessed the courage to ask them about it. It should also be understood that the judge is sometimes entitled to intervene during the course of a jury speech if something improper takes place. During the Crown speech in Morrison v HM Advocate,37 the procurator fiscal handed the jury a document which neither the sheriff nor the defence had seen and made improper remarks about the role of the defence and about the not proven verdict. Sometimes, things like this can be corrected by the judge in the directions to the jury38 but, in Morrison, Lord Brodie said that the sheriff should have intervened immediately when he realised what was happening. The conviction was quashed. Jury directions Finally, under solemn procedure, the judge will charge the jury, giving them directions as to the law but making it plain to them that it is for them to decide what facts they hold to be proved but that they must rely on the judge’s directions as to the law. The terms of the directions must be tailored to the issues which have arisen in the trial but will always include directions about the burden and standard of proof, the elements 35

2010 SCCR 44. Mailey v HM Advocate 1993 JC 138; Al Megrahi v HM Advocate 2002 SCCR 509. 37 2013 SCCR 626. 38 For an example, see KP v HM Advocate 2017 SCCR 462. 36

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of the crime charged, sufficiency of evidence credibility and reliability and a direction, as the Appeal Court insisted on in Affleck and Quinn v HM Advocate39: ‘to explain the verdicts which are open to them, to inform them that they may return a verdict by a majority, and then to emphasis the only matter of importance: that no verdict of guilty can be returned unless eight members of the jury are in favour of that verdict’.

Where appropriate, juries are told about alternative verdicts that might be open to them. In preparing his or her charge, the trial judge will take the jury manual40 as the starting point. It is available to the public online and will repay study by any law student or practitioner. It contains summaries of the law in relation to evidence, procedure and substantive offences and, since those summaries are prepared by a committee of High Court judges and sheriffs, they may be regarded as reliable. The requirement for at least eight members of the jury in favour of a guilty verdict before that verdict can be returned remains even if the size of the jury is reduced below fifteen (for example, by illness). Verdict The jury then retire to consider their verdict, returning once the verdict has been reached. Under summary procedure the judge simply announces their verdict after both parties have addressed them (and perhaps after a short adjournment to consider the matter). There are three verdicts open to a jury or to a judge under summary procedure. These are guilty, not proven and not guilty. The guilty and not guilty verdicts are self-explanatory. Although in Neil v HM Advocate41 the High Court held that it is not necessary to explain the not proven verdict to a jury on the ground that it is well understood in Scotland, it does need to be said that it is a verdict of acquittal. It founds a plea of tholed assize. Whether it is correct to say that the not proven verdict is well understood is a matter of opinion. Experience suggests that it is not. Judges do not attempt to explain it to juries because any attempt to do so is likely to end up in the Appeal Court and be found to be a misdirection. It is sometimes said that the difference between not guilty and not proven is 39

1987 SCCR 150. Available online at https://www.judiciary.scot/home/media-information/ publications/judicial-institute-publications (last accessed 16 June 2021). 41 1948 JC 12. 40

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a matter of emphasis. In practice, not proven tends to be used – at least in summary trials – where the sheriff thinks that the accused is probably guilty but where the standard of proof beyond reasonable doubt is not reached. It is emphasised that that is a generalisation and purely descriptive. It is certainly not a statement about the content of the law. In the event of a guilty verdict, the court proceeds to the sentencing stage. The prosecutor tenders any notice of previous convictions and, in a jury trial, makes a formal motion for sentence. Thereafter, matters proceed as described in the next chapter. If there is a verdict of acquittal, the accused is discharged from the dock.

Chapter overview • If the accused does not appear for trial they commit an offence and a warrant for arrest is likely to be issued. • If the trial is on indictment: The jury is selected by ballot. At least thirty potential jurors must attend for that to be competent. The judge makes introductory remarks to the jury outlining the procedure and takes them through written directions about burden and standard of proof and rules that apply in all cases. • The prosecution witnesses are called first. Each witness is examined in chief by the prosecutor. Cross-examined for the defence if desired. Re-examined by the prosecutor if that is thought necessary. • Witnesses may use notes made at the time of the incident as aides memoire. • Witnesses are not normally allowed to be in the court before they give their evidence. • Once the prosecution case is complete, the accused can make a submission that there is no case to answer. • The submission has to be that there is no case to answer both on the charge on the indictment or complaint and on any other charge of which it would be competent to convict. If the submission is successful, the accused is acquitted of the charge to which it relates. • If the defence choose to lead evidence, the accused gives evidence before any witness they wish to call. They are examined in chief, crossexamined by the prosecutor if desired and re-examined. • There are provisions which allow the recall of witnesses, the leading of additional evidence or the leading of evidence “in replication” – that is, evidence to contradict defence evidence which the prosecutor could not reasonably have anticipated.

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• On indictment, there is a further opportunity to make a submission of no case to answer at the close of the evidence or after the prosecutor has addressed the jury. • After all of the evidence has been led, the judge (in a summary case) or the jury (on indictment) is addressed by the prosecutor, followed by the defence lawyers (in turn if there are multiple accused). • In a trial on indictment, the judge gives the jury directions tailored to the issues which arise in the case but always including: Burden and standard of proof. The elements of the crime charged. Sufficiency of evidence. Credibility and reliability. Verdicts: ■ Guilty (which, in a trial on indictment, always requires at least eight jurors to be in favour of that verdict). ■ Not guilty. ■ Not proven (which is a verdict of acquittal with the same effect as not guilty). • The judge or jury considers verdict.

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Chapter thirteen

Sentencing

As befits an introductory text, this chapter offers an outline of sentencing law and calls attention to issues which arise reasonably often. It should be understood, however, that sentencing law can be something of a labyrinth1 and that the relevant legislation (essentially, Part XI of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act)) should be consulted for the detail of the provisions about any particular sentence. This chapter is in two parts. The first part describes sentencing procedure. The second part gives an account of the rules that apply to particular types of sentence and, in order to give the material some structure, that will be done under three headings: custodial sentences; community disposals; and financial penalties.

Procedure If the accused pleads guilty to or is found guilty of a charge the proceedings enter the sentencing phase.2 As well as the general provisions about sentence in the 1995 Act, there are particular sentencing provisions in some offence-creating statutes. Sometimes, for example, an Act will make provision for a disqualification to be imposed as ancillary to a sentence. The most obvious example is disqualification for holding or obtaining a driving licence, imposed under road traffic legislation. In outline, the procedure is that the prosecutor moves for sentence (if the case is under solemn procedure) and tenders to the court any notice of previous convictions. If the conviction follows trial, the court proceeds on the basis of the facts established at trial but if there has been a plea of 1

GH Gordon QC et al., Criminal Procedure According to the Law of Scotland, 6th edn (Edinburgh: Thomson Reuters/W. Green), para. 23–01 describe it as a ‘dog’s breakfast’. 2 Though if there are other charges not yet determined, sentence will be deferred to await the outcome of those charges.

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guilty, the prosecutor narrates the facts as known to the Crown. It might be that, at this stage, the court decides that it needs a criminal justice social work report or some other report3 and adjourns for that purpose. Unless the question of bail pending the preparation of the report arises, the solicitor or counsel for the accused will usually refrain from making the plea in mitigation until the report is available, so as to be able to take account of that report in what is said. Once the court has considered any report and heard the plea in mitigation, sentence is selected and imposed. Motion for sentence Although, by contrast with some jurisdictions, the Scottish prosecutor does not ask for any particular sentence, he or she does initiate the whole sentencing process, at least under solemn procedure. There, once the guilt of the accused has been established, the prosecutor has a discretion whether or not to move for sentence. If the prosecutor does not do so, it is not competent for the court to proceed to sentence. The motion for sentence is usually made explicitly but can be made by implication from the prosecutor’s actings, as in Noon v HM Advocate4 in which, although the prosecutor forgot to say the words ‘I move for sentence’, he did tender to the court a list of previous convictions – an action consistent only with an intention that the court should proceed to sentence – and the competency of the sentence imposed was upheld on appeal. Under summary procedure there is no motion for sentence. Once a motion for sentence is made under solemn procedure, or once the accused has been convicted under summary procedure, the court does not have the option of making no order. In Skeen v Sullivan5 the High Court was sharply critical of a sheriff who had declined to do so. Previous convictions As we noted above,6 notwithstanding the term ‘previous convictions’, the court, in deciding on disposal, may have regard to any conviction or alternative disposal (fixed penalty, compensation offer by the procurator fiscal or a work order under section 303ZA of the 1995 Act) which occurred after the date of the offence being dealt with but before conviction.7 McCall v Mitchell8 established that convictions under appeal cannot be included 3

For example, a psychiatric report. 1960 JC 52. 5 1980 SLT (Notes) 11. 6 See p. 113. 7 1995 Act s. 166A. 8 (1911) 6 Adam 303. 4

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in the notice of previous convictions, though criminal justice social work reports, which describe the personal circumstances of the accused, usually disclose the existence of such convictions, especially if the accused is serving a prison sentence in connection with such a sentence. The defence, too, will usually tell the court about that. The court needs to know because the information will affect the options open to the court. For example, if the accused is serving a prison sentence, it is unlikely that a non-custodial disposal will be practicable, at least until the appeal is decided. It was held in Connell v Mitchell9 that it is not competent for a party to address the sentencing judge about what might underlie a previous conviction. The Lord Justice-Clerk (Macdonald) explained that the trial judge knows what is proved at the trial and considers that matter in the sentence imposed; but that a judge considering the convictions in another context thereafter cannot know that. Accordingly, a judge to whom a notice of previous convictions is tendered should not look behind the information in that notice (date and court of conviction, nomen iuris of the offence and disposal). In Riley v HM Advocate10 that was modified in light of developments in practice (such as the introduction of criminal justice social work reports) so that the Crown could place an extract conviction including the terms of the libel before the court but the Lord Justice-General (Rodger) drew the line at that, adhering to the reasoning in Connell about the risks of going further. Unexpired portion of a sentence As a result of provisions in the Prisoners and Criminal Proceedings (Scotland) Act 1993 (the 1993 Act), those who are sentenced to imprisonment do not spend the whole period specified in the sentence in prison. The scheme set out in the 1993 Act is complicated (and a matter of prison law, not of criminal procedure) but what it comes to is that those who are sentenced to less than four years’ imprisonment are released on licence after half their sentence and those sentenced to four years’ imprisonment or more are released after two thirds of their sentence.11 The time between release and the date when the full sentence would have ended is referred to as the ‘unexpired portion’. In terms of section 17 of the 1993 Act, the licence can be revoked and the offender recalled to prison. In terms of section 16, where a person is convicted of an offence committed during that unexpired portion, the court which deals with them for the new offence has the power to order their return 9

(1905) 5 Adam 641. 1999 JC 308. 11 Different rules apply to those imprisoned for sexual offences. 10

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to custody for a number of days up to a maximum of the period of time between the date of commission of the new offence and the date when the sentence was due to expire. So if someone is sentenced to twelve months’ imprisonment on 1 February, he will be released on 31 August12 but his sentence will only expire on 31 January. If he commits an offence on 1 December, he is liable to an order under section 16 for up to sixty-two days (thirty-one in each of December and January). The fact that a person is liable to this procedure is usually apparent from reading the notice of previous convictions, which shows the imposition of a prison sentence which would not have expired before the date the new offence was committed. The court may direct that the section 16 return is to be served before and followed by any sentence for the new offence or that it should be served concurrently with it. However, section 16 orders must start on the day they are imposed and cannot be backdated. This makes for complications where the accused has been refused bail for the new offence. We deal with that below.13 Crown narrative In solemn procedure, it is common for the Crown narrative of the facts to be adjusted between the parties and handed to the court in written form. It still needs to be delivered orally because justice should be done in public and is not a paper exercise. Agreed written narratives are rare in summary procedure because the volume of cases makes it impracticable.14 Forfeiture It is possible that the prosecutor will also seek an order for forfeiture of some article used in course of the commission of the offence. This is dealt with under Part II of the Proceeds of Crime (Scotland) Act 1995. Where the prosecutor certifies that the article in question is perishable, dangerous or worthless or that the possession of it is unlawful, section 24 of the Proceeds of Crime (Scotland) Act 1995 operates to forfeit it at once. In other cases, however, the order made will be a suspended forfeiture order and it will take effect only after the passage of a sufficient period of time to allow third parties claiming an interest in the property to vindicate that interest. The Act requires the prosecutor to give the court information about any person who might have such an interest. 12

Or even earlier, under home detention curfew arrangements. See p. 251. 14 During the COVID-19 pandemic, some summary cases are being dealt with on the basis of written narratives and written pleas in mitigation. 13

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Some Acts of Parliament make specific provision for forfeiture of items. The one most commonly encountered in practice is section 33A of the Road Traffic Offenders Act 1988, which empowers the court to order forfeiture of a vehicle which was being driven by or under the charge of the accused at the time of an offence. The power depends on an application being made. The Crown tends to make such applications only in connection with drink-driving offences. There is next to no guidance from appeal courts about the use of this power but it should be kept in mind that the 1988 Act gives the court a discretion. If the statutory criteria are met, the court has the power; but whether the court ought to make the order is a separate question which is often not addressed properly in submissions. Notification requirements By section 80 of the Sexual Offences Act 2003 (the 2003 Act), a person who is convicted of an offence listed in Schedule 3 to that Act is subject to the notification requirements of Part 2 of the Act for the period set out in a table in section 82. This is the so-called ‘sex offenders register’. As might be expected, the offences listed in the Schedule include most of the offences which would generally be recognized as sexual offences. In particular, they include almost all contraventions of the Sexual Offences (Scotland) Act 200915 and offences in relation to indecent images of children under the Civic Government (Scotland) Act 1982. By paragraph 60 of the Schedule, other offences, which are not listed, are included if the court determines that there was a significant sexual aspect to the offender’s behaviour in committing the offence. The scheme of the 2003 Act section 82 is that the notification period depends on the sentence imposed on the offender. It is important to understand that the sentencing judge has no discretion either about the imposition of the notification requirements or about their duration.16 They apply even if the sentencer does not mention them.17 There are two reasons why they are mentioned. The first is to give the offender information about an important aspect of the disposal. The second is that breach of the requirements is an offence and, in terms of section 92, if the sentence states in open court that the notification requirements apply and that is certified in the 15

Sexual exposure is only within the scheme if a prison sentence is imposed or if the offender was over eighteen and the victim was under eighteen. 16 R v Longworth [2006] 1 WLR 313. 17 Accordingly, newspaper reports that the court placed the offender on the sex offenders’ register for a particular period of time misunderstand the position comprehensively.

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court minutes, that certificate is, by section 92(2), sufficient evidence of the facts that the appellant was convicted and that the offence is one listed in Schedule 3 to the 2003 Act. Section 83 specifies the matters which must be notified to the police. They include name, address, date of birth and whether the offender has a passport. By section 84, changes must be notified to the police within three days of them taking place.18 Adjournment for inquiry Section 201 of the 1995 Act allows the court to adjourn a case before imposing sentence in order to enable enquiries to be made or to determine the most suitable method of dealing with the case. Such adjournments must not be for any single period exceeding three weeks where the accused is remanded in custody or four weeks (eight on cause shown) where the offender is on bail or ordained to appear. Particular rules apply in the minority of cases where risk assessment is required19 but, otherwise, a custodial sentence can only be imposed on someone under twenty-one years old or on someone who has not previously served a prison sentence if the court has taken into account such information as it has been able to obtain ‘from an officer of a local authority or otherwise’ about their circumstances.20 Community payback orders cannot be imposed unless the court has obtained and considered a criminal justice social work report.21 Nor can drug treatment and testing orders.22 If a person is under statutory supervision (typically, subject to an existing community payback order) the court must not dispose of any new case without obtaining a report.23 These are statutory requirements. In other cases, leaving aside the lower end of road traffic offending and other cases in which admonition or a fine is the obvious disposal, the court will frequently call for a criminal justice social work report. We shall look at the process of deciding what sentence to impose below but note, here, that the personal history and circumstances of the accused are important considerations. A social work report is one of the best ways of getting that information. 18

This is not intended to be an exhaustive account of the notification regime – the 2003 Act should be consulted. 19 See p. 248. 20 1995 Act s. 204(2) and (2A). 21 1995 Act s. 227B(4). There is an exception for a level 1 unpaid work order. See p. 253 for an account of community payback orders. 22 1995 Act s. 234B(3)(b). 23 1995 Act s. 203.

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Mitigation and proof in mitigation Once the prosecutor has completed their narrative it is up to the defence to make a plea in mitigation. Occasionally the defence version of the facts will be so far removed from that given by the prosecution as to make it impossible for the court to deal with the case. If the defence version is inconsistent with guilt then the case must be adjourned for trial. More commonly, the defence version will still justify a plea of guilty but will vary so far from the prosecution account that the court lacks a proper basis upon which to deal with the case. In other cases, if there is a significant difference between the two versions of events, evidence will have to be led at a proof in mitigation because the court is not entitled to prefer one version over the other without hearing evidence.24 In Ross v HM Advocate,25 the Appeal Court held (following McCartney v HM Advocate26) that, even in the absence of contradiction by the Crown, a sheriff was entitled to tell the defence that they were not prepared to accept what was said in mitigation without evidence in its support and, having heard evidence from the accused, to reject it and sentence on the basis of the Crown narrative. If there is no proof in mitigation, disputed facts, whether they are asserted by the Crown or by the defence, have to be left out of account.27 ‘Discount’ for guilty plea Section 196(1) of the 1995 Act provides that, in determining disposal following a plea of guilty, a court shall ‘take into account’ the stage in the proceedings at which the offender indicated their intention to plead guilty and the circumstances in which the indication was given. In Du Plooy v HM Advocate28 the Lord Justice-General (Cullen of Whitekirk) said: ‘in our view it is desirable that, where a plea of guilty and related matters call for some allowance, the sentencer should use a distinct discount in the process of arriving at the appropriate sentence, and should state in court the extent to which he or she has discounted the sentence’.29

The possibility of taking the stage at which the plea is tendered into account by changing the nature of the sentence is not absolutely excluded. In McInally v Procurator Fiscal, Edinburgh30 the Sheriff Appeal Court took the view that it was 24

Hughes v Donnelly 1994 SCCR 598. 2015 SCCR 237. 26 1997 SCCR 644. 27 HM Advocate v Murray 2008 SCCR 276. 28 2005 1 JC 1. 29 2005 1 JC 1, para. 25. 30 [2016] SAC (Crim) 5. 25

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open to a sheriff to take account of the stage of the plea by refraining from disqualifying a driver but imposing, instead, eight penalty points and not discounting those points. Having said that, applying section 196 in any way other than selecting a type of sentence and discounting that is, at best, unusual. The amount of the discount is a matter for the discretion of the sentencing judge and, provided the sentencer has a cogent reason for the choice made, appeal courts are unlikely to be receptive to appeals about the level of discount. That said, in Spence v HM Advocate31 the court gave some ‘general guidance as to the levels of discount which might, subject to individual circumstances, be expected in the event of an intention to plead guilty being clearly indicated at particular stages of solemn proceedings and thereafter adhered to’. In Gemmell v HM Advocate,32 Lord Eassie was to emphasise the importance of predictability in relation to the discount to be expected. That guidance in Spence was that the extent of the discount will be on a sliding scale ranging at its greatest from one third to nil. If a plea of guilty proceeds on a section 76 letter, a discount in the order of one third might be afforded. A plea at a preliminary hearing or a first diet might attract a discount in the order of one quarter. Thereafter, any discount can be expected to reduce further. A plea at the trial diet should not ordinarily exceed one tenth and in some circumstances may be less than that or nil. Once the trial has begun, it is unlikely that there will be any discount. In the sheriff court, this should be read in the light of McGhee v HM Advocate,33 which decides that a sheriff can select a starting point in excess of his or her sentencing powers provided that the sentence actually imposed after discount is within them. In that case, the sheriff selected a starting point of six years’ imprisonment but discounted it to five years. That was held to be competent. It should also be noted that a delayed section 76 letter will not necessarily result in the one third discount contemplated in Spence. In Gemmell, Lord Gill said that: ‘if those defending the accused make enquiries to test the strength of the Crown case or try to strengthen the defence case before offering a plea of guilty they must recognise that, so far as discounting is concerned, time is not on their side’.34

31

2007 SCCR 592. 2012 SLT 484; 2012 SCCR 176. 33 2006 SCCR 712. 34 2012 SLT 484; 2012 SCCR 176, para. 42. 32

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An illustration of that is to be found in Murray v HM Advocate,35 in which Lord Gill said that a discount of one third was out of the question where the section 76 letter was only delivered to the Crown when two months passed after appearance on petition and after the defence had received disclosure of the forensic science and the appellant’s first police interview (in which he made admissions). Applied to summary procedure, the guidance in Spence translates into a one third discount for a plea on first appearance, one quarter for a plea at intermediate diet and one tenth for a plea at trial. The law was reviewed in Gemmell by a bench of five judges. Five separate opinions were issued and the judges differed in some aspects of their reasoning but there was broad agreement on the principles applicable. The court held that the decisions whether to allow a discount and, if so, what discount to allow, remain matters for the discretion of the sentencing judge, that an accused is not entitled to any particular discount for a plea of guilty at any particular stage, that the part of the sentence referable to public protection should not be excluded from the discount and that disqualification from driving and penalty points constitute a sentence and come within the wording of section 196. The Lord Justice-Clerk (Gill) said that it is useful to analyse the discounting process in three stages: 1. to decide what the sentence would be if no question of a discount arose (he called this the ‘headline sentence’ and Lord Eassie referred to it as the ‘starting sentence’); 2. to decide whether there should be a discount; and 3. if so, to decide what the amount of it should be. Lord Gill described the assessment of the headline sentence and the assessment of any discount as ‘separate processes governed by separate criteria’ and repeated that in Murray v HM Advocate.36 Lord Essie referred to the starting sentence as ‘that which the sentencing judge would impose after trial’.37 Lord Gill said that the assessment of the headline sentence is ‘not a matter of precise arithmetical calculation’ but that it ‘involves the making of an overall judgment from a consideration of numerous factors based on judicial experience’. He referred, with approval, to the description of it as ‘instinctive synthesis’.38 35

2013 SCCR 88. 2013 SCCR 88. 37 2012 SLT 484; 2012 SCCR 176, para. 141. 38 For all of this, see 2012 SLT 484; 2012 SCCR 176, para. 59. 36

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Gemmell does not address the sentencing process in general but Lord Gill explained that, in deciding what the headline sentence would have been, the court should ‘apply the normal, well-established principles of sentencing’ and he offered some examples – the circumstances of the offence and factors such as the gravity of the offence, the accused’s record and the need to protect the public.39 Lord Eassie agreed that the question of the protection of the public is to be taken into account in what he called ‘the starting sentence’.40 Later in his opinion, Lord Gill explained that any assistance that the accused may have given to the police or to the Crown in the investigation and prosecution of offences is properly a matter of mitigation and, as such to be taken into account in the headline sentence.41 So, too, convincing evidence of remorse goes to the assessment of the ‘starting’ or ‘headline’ sentence. In general terms, it may be said that the court in Gemmell were at one in distinguishing between mitigation, which would affect the headline sentence, and utilitarian value, which would affect the discount.

Particular sentences This part of this chapter will consider sentences under three headings – custodial sentences; community disposals; and financial penalties. First, though, there are some general matters to be noted. General matters Sentencing guidelines In selecting a sentence, the court is obliged by section 197 of the 1995 Act to have regard to any relevant opinion pronounced under section 118(7) or section 189(7). Those provisions allow the High Court and Sheriff Appeal Court, in the context of determining an appeal against sentence, to pronounce an opinion on the sentence or other disposal order which is appropriate in any similar case; in short, to issue sentencing guidelines. The courts have been relatively slow to do so but an example (dealing with the use of confidential material in a plea in mitigation) is to be found in O’Neill v HM Advocate.42 However, the Criminal Justice and Licensing (Scotland) Act 2010 provided for the creation of a Scottish Sentencing Council (SSC) to develop guidelines and they have begun their task. 39

2012 SLT 484; 2012 SCCR 176, para. 28. 2012 SLT 484; 2012 SCCR 176, para. 141. 41 2012 SLT 484; 2012 SCCR 176, para. 50. 42 1998 SCCR 644. 40

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The first guideline issued by the SSC took effect on 26 November 2018 and is entitled Principles and Purposes of Sentencing. It articulates the approach which courts take – or should take – to the selection of sentences, as follows43: ‘1. Sentences in Scotland must be fair and proportionate. 2. This principle requires that: • all relevant factors of a case must be considered including the seriousness of the offence, the impact on the victim and others affected by the case, and the circumstances of the offender; • sentences should be no more severe than is necessary to achieve the appropriate purposes of sentencing in each case; • reasons for sentencing decisions must be stated as clearly and openly as circumstances permit; • sentencing decisions must be made lawfully and sentencers must have regard to any sentencing guidelines which are applicable; • people should be treated equally, without discrimination; and • sentencing decisions should treat similar cases in a similar way, assisting consistency and predictability. 3 [. . .] 4. The sentence selected should best achieve the purposes of sentencing that are appropriate to the particular case but should always reflect the core principle of fairness and proportionality. 5. In no particular order, the purposes may include: • Protection of the public. Sentencing may seek to protect the public from offending behaviour through preventative measures and by deterring offending behaviour. • Punishment. Sentencing may seek to punish the offender as a consequence of their criminal behaviour, normally resulting in some sort of loss depending on the sentence chosen. • Rehabilitation of offenders. Sentencing may seek to reduce the risk of reoffending through the effective rehabilitation of offenders, providing people with the opportunity to change and move away from past offending behaviour. • Giving the offender the opportunity to make amends. Sentencing acknowledges the harm caused to victims and communities. Sentencing may also aim to recognise and meet the needs of victims and communities by requiring the offender to repair at least some of the harm caused. 43

Scottish Sentencing Council, https://www.scottishsentencingcouncil.org.uk/ media/1964/guideline-principles-and-purposes-of-sentencing.pdf (last accessed 16 June 2021). Contains public sector information licensed under the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/opengovernment-licence/version/3/ (last accessed 16 June 2021)).

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• Expressing disapproval of offending behaviour. Sentencing may act as an expression of society’s concern about and disapproval of the offending behaviour under consideration. In achieving the appropriate purpose(s) of a particular sentence, the efficient use of public resources may be considered.’

Sentencing young offenders At the time of writing, the SSC was in the process of developing a guideline on the sentencing of young offenders and developments in relation to that should be checked.44 The Appeal Court has made it clear, in Kane v HM Advocate,45 Smart v HM Advocate46 and IG v HM Advocate47 that, in dealing with a young offender, the court has to consider the offender’s personal circumstances, home background and the extent to which they might not be solely responsible for their behavioural problems. The possibility of rehabilitation is a particularly important consideration and even a very serious offence, which in an adult might require a custodial sentence, might not do so in a young person. An example of that is to be found in the unsuccessful Crown appeal against the imposition, in HM Advocate v Smith,48 of a non-custodial sentence for robbery in a shop involving an imitation firearm. It is regarded as incorrect to simply start with the sentence that would have been imposed on an adult and allow a discount for the youth of the offender. Deferred sentence In terms of section 202 of the 1995 Act the court may defer sentence for a period and on such conditions as it may determine. It is quite common for the court to defer sentence for a period of months for the accused to demonstrate that they can be of good behaviour or for a shorter period for the accused to repay the value of stolen or damaged property. The seriousness of the offence is by no means an absolute bar on the taking of this course, and McPherson v HM Advocate49 is an example of deferral of sentence in a case of attempted murder.

44

The Council’s website, http://www.scottishsentencingcouncil.org.uk (last accessed 16 June 2021) contains much useful material on sentencing. 45 2003 SCCR 749. 46 2016 SLT 1035. 47 2018 SCCR 343. 48 2014 SCCR 39. 49 1986 SCCR 278.

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At the end of the period of deferral the accused is sentenced for the offence, taking into account the facts of the offence but also how well they have complied with the condition imposed. The power to defer is sometimes used where there are other proceedings current against the offender, with a view to dealing with them at the same time in respect of all matters. The practitioner is likely to encounter a disposal called a ‘structured deferred sentence’. This is not to be found in the legislation. It is simply an extended version of deferral on conditions under section 202. What complicates matters is the fact that the nature of the disposal varies from local authority area to local authority area, depending on what programmes and arrangements are put in place by social work departments. Accordingly, the practitioner who represents someone for whom a criminal justice social work report recommends a structured deferred sentence needs to understand exactly what structure is proposed in the particular case and how performance is to be measured before commending that disposal to the sentencer. For example, in at least one sheriff court district, structured deferred sentences have been supported by bail conditions which require co-operation. That means that failure to engage properly leads to arrest and prosecution for an offence which carries a possible twelve-month prison sentence and still leaves it open to the court to sentence for the original offence. By contrast, as we shall see below, breach of a community payback order carries only a possible three-month sentence or the imposition of a sentence for the original offence – not both. Admonition and absolute discharge Admonition and absolute discharge are provided for by section 246 of the 1995 Act and are what they say. No penalty is imposed. Admonition is in effect a formal reprimand and absolute discharge not even that. If considering absolute discharge, the court is directed by the section to have regard to the circumstances of the offence and the character of the offender50 and is empowered, if it considers that it is inexpedient to inflict punishment, to make an order discharging them absolutely. Under summary procedure (but not solemn), a court which discharges a person absolutely does not proceed to conviction. Nevertheless, an absolute discharge may be included in any future notice of previous convictions.51

50

Acts of Parliament do sometimes state the obvious. These are things to which the court should have regard in any sentencing decision. 51 1995 Act s. 247(4).

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Custodial sentences Life imprisonment and orders for lifelong restriction As we have already noted, the High Court of Justiciary can impose a sentence of up to life imprisonment and (by section 205 of the 1995 Act) must do so in a case of murder. Life sentences in cases other than murder are now rare. Although still competent, they have been replaced in practice by orders for lifelong restriction (‘OLR’). The OLR has been defined succinctly by the SSC in these terms: ‘An OLR is a lifelong sentence put in place to protect the public. It is a sentence of imprisonment which can be imposed on people convicted at the High Court of a serious violent offence (other than murder), a serious sexual offence,52 an offence which endangers life, or an offence which indicates a tendency to serious violent, sexual or life-endangering offending. The court must impose an OLR where it appears that, because of the nature or circumstances of the offence, there is a likelihood that the offender will in the future seriously endanger the lives, or physical or psychological well-being, of members of the public, if he or she is not in custody.’53

The law on this is to be found principally in section 210F of the 1995 Act. That section defines an OLR as ‘a sentence of imprisonment, or as the case may be, detention,54 for an indeterminate period’. It is a sentence which is only available in the High Court (though that would include a case remitted for sentence from solemn procedure in the sheriff court under section 195 of the 1995 Act). The provisions are detailed but, in outline, they are as follows. Before imposing an OLR, the judge must, to the extent that they apply, have regard to four things: (a) Any risk assessment report, which is a report about what risk the person being at liberty presents to the safety of the public at large.55 By section 210B the court may make a risk assessment order where the accused has been convicted of one of the offences referred to by the SSC definition. The report is prepared by a person accredited by the Risk Management Authority. (b) Any risk assessment report prepared under section 210D, where the person has been made subject to an interim hospital order under that section. 52

As defined in the 1995 Act s. 210A(10). Scottish Sentencing Council, https://www.scottishsentencingcouncil.org.uk/ about-sentencing/jargon-buster/?firstLetter=O (last accessed 17 June 2021). 54 That is, where the offender is under 21. See p. 000. 55 1995 Act s. 210B(3)(a). 53

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(c) Any evidence given under section 210C(7) about parts of the risk assessment report to which the offender has intimated an objection. (d) Any other information before the court. In terms of section 2 of the Prisoners and Criminal Proceedings (Scotland) Act 1993, a judge who imposes a life sentence or an order for lifelong restriction sets a ‘punishment part’. That is the length of time which the court considers the person should serve in prison to satisfy the requirements for retribution and deterrence. It is the minimum time that the person must spend in prison before they can be considered for release on licence. That does not mean that they will be released after that time. That is a decision for the Parole Board for Scotland. It does mean that they cannot be considered for release until the punishment part has been served. Determinate custodial sentences Maximum sentences When we refer to a determinate prison sentence, we mean a sentence stated in terms of a fixed period of time. In the High Court, the length of such a sentence is not limited in relation to common law offences and, in statutory offences, is constrained only by any maximum prescribed by the offence-creating statute. On indictment, subject to any maximum sentence prescribed by an offence-creating statute, the sheriff can impose a sentence of up to five years’ imprisonment56 or, where they hold that any competent sentence which they could impose is inadequate, remit to the High Court for sentence.57 In terms of section 5(2) of the 1995 Act, the sheriff sitting summarily can impose a sentence of up to twelve months’ imprisonment. The effect of section 27(5) of the 1995 Act is to increase that to eighteen months where the offence is aggravated by having been committed whilst subject to a bail order. By section 7(5) of the 1995 Act a JP court constituted by a summary sheriff has the same sentencing powers as a sheriff sitting under summary procedure. In other cases, by section 7(6)(a), the JP court may impose up to 60 days’ imprisonment. Extended sentence By section 210A of the 1995 Act, if the court intends to impose a determinate sentence (i.e. a sentence other than life imprisonment) in a sexual offence or a sentence of four years or more in a violent58 or terrorism offence and 56

1995 Act s. 3(3). 1995 Act s. 195. 58 This includes abduction – 1995 Act s. 210AA. 57

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considers that the period at the end of the sentence for which the offender would be on licence would not be adequate to protect the public, it may pass an extended sentence.59 An extended sentence is a sentence of imprisonment which is the aggregate of the term of imprisonment that the court would have imposed apart from section 210A (which is referred to as ‘the custodial part’) and a further period (known as the ‘extension period’) of up to ten years for which the offender is subject to licence. The extension period is the period during which the court considers that what might be called ‘ordinary’ release on licence would not be adequate for the purpose of protecting the public from serious harm from the offender.60 If the offender commits an offence whilst subject to the licence, they may be recalled to prison and required to serve the remainder of the extension period in custody. A sheriff can impose an extended sentence which is the aggregate of a custodial part not exceeding the maximum term of imprisonment which they may impose and an extension period of five years.61 In McLean v HM Advocate,62 it was held that breaches of special conditions of bail requiring the accused to stay away from the complainer did not infer personal violence, even where those breaches were the prelude to the use of violence against her, so that the imposition of an extended sentence on the basis of a four year sentence which included those bail offences could not stand. Supervised release order Where a person is convicted on indictment of an offence other than a sexual offence and sentenced to less than four years, the court may, if it considers it necessary in order to protect the public, impose a supervised release order. A supervised release order places the offender under social work supervision and requires compliance with requirements imposed by the court or the social worker supervising the offender. The period may be for up to twelve months but must not run past the date when the entire terms of imprisonment specified in the sentence has elapsed.63 If the offender breaches the terms of the order, they may be returned to prison for a period equal to the length of time between the first date of breach and the date when supervision was due to end.64 59

1995 Act s. 210A. 1995 Act s. 210A(1) and (2). 61 1995 Act s. 210A(6). 62 2020 SCCR 16. 63 1995 Act s. 209. 64 Prisoners and Criminal Proceedings (Scotland) Act 1993 s. 18(2). The section provides a procedure for dealing with alleged breaches. 60

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Time spent in custody In all cases in which a custodial sentence is being imposed the court must, by section 210(1) of the 1995 Act, have regard, in determining the length of the sentence, to any time spent in custody on remand awaiting trial (or extradition). That is usually done by backdating the sentence to the date when the accused was remanded in custody.65 That becomes more complicated if they are made subject to a section 16 order66 because such orders start on the date when they are made and cannot be backdated and must either be served before the sentence for the new offence or be concurrent with that sentence. In order to deal with that, the sentencer determines how long the offender spent in custody in relation to the ‘new’ offence and then deducts double that period67 from the sentence to be imposed for the new offence. Presumption against short sentences Section 204(3A) of the 1995 Act provides that a court must not pass a sentence of imprisonment for a term of twelve months or less on a person unless the court considers that no other method of dealing with the person is appropriate. Reasons must be given if the court does impose a sentence shorter than that.68 Young offenders Although imprisonment is the most obvious custodial disposal, there are others which apply in the case of persons under the age of twenty-one. Section 208 of the 1995 Act provides that where a child convicted on indictment and the court is of opinion that no other method of dealing with them is appropriate, it may sentence them to be detained in such place and on such conditions as the Secretary of State may direct. ‘Child’ is defined by section 307 by reference to section 199 of the Children’s Hearings (Scotland) Act 2011 and means, essentially, one who has not attained the age of sixteen or one who has attained the age of sixteen but not eighteen and who is subject to a compulsory supervision requirement under that Act. By section 207 of the 1995 Act it is not competent to impose imprisonment on a person under twenty-one years of age. Instead, the court may impose 65

It is open to the court to decide not to backdate but it rarely happens. See p. 237. 67 Double, because the offender would be released after half the sentence and so one month in custody on remand is equivalent to two months of sentence, and so on. 68 1995 Act s. 204(3B). 66

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detention in a young offenders’ institution on a person aged between sixteen and twenty-one but only where, after obtaining a social enquiry report from ‘an officer of a local authority’ (that is, a social worker) the court is of opinion that no other method of dealing with the offender is appropriate. Consecutive sentences It is common for the court to have to deal with several offences committed by the same offender. Sometimes they are all included on a single indictment or complaint and sometimes the court has to deal with multiple indictments or complaints against the same person. Whilst sentences for offences that are part of the same incident should be concurrent with each other,69 it is open to the court to decide to impose a series of consecutive sentences for offences which are truly distinct from one another (provided always that the maximum sentence that can be imposed by the particular court is not exceeded). That holds good even if the offences are part of a course of conduct which would bring Moorov into play.70 Community disposals Restriction of liberty order A restriction of liberty order is an order which requires the offender to be in a specified place for such period as may be specified.71 Typically, the order is that the offender shall be in their home address between the hours of 7pm and 7am every night for a number of months but that is only the commonest order. In particular, the times are varied reasonably often in order to accommodate the offender’s hours of work or caring responsibilities. It is competent for the court to make an order for the offender to stay away from a particular place or class of places during particular periods though an order in those terms is rare. The order is a direct alternative to imprisonment.72 It can only be made if the offender consents73 and after the court has obtained a report from an officer of the local authority about the suitability of the place proposed to be specified and the suitability of what is proposed with particular reference to maximising compliance and minimising the risk of further offending.74

69

For example, Allan v HM Advocate 1997 SCCR 21, in which the appellant was sentenced for assault with a weapon and for possession of that weapon. 70 ALM v HM Advocate 2015 SCCR 389. 71 1995 Act s. 245A(2). 72 1995 Act s. 245A(1). 73 1995 Act s. 245A(4). The alternative being custody, most do consent. 74 1995 Act s. 245A(6).

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The order cannot be made for more than twelve hours in any one day75 and the maximum period for which an order can be made is twelve months.76 The order is monitored using an electronic tag.77 There is provision in section 245E for applications to vary a restriction of liberty order. A mechanism for dealing with breaches of the order (usually by failing to return home on time) is provided in sections 245F–245J. Put shortly, the monitoring agency reports the breach to the court; a sheriff decides whether to issue a warrant to arrest, cite the offender to attend or take no action; the offender is brought before the court and the court considers whether the breach is admitted or, after hearing evidence, proved. In case of a breach which is established, the court may allow the order to continue (possibly adding a fine), vary it or revoke it and deal with the offender for the original offence.78 Community payback orders Section 227A of the 1995 Act, provides that where a person is convicted of an offence punishable by imprisonment, the court may, instead of imposing a sentence of imprisonment, impose a ‘community payback order’. A restricted version of the community payback order (limited to offender supervision, a ‘level 1’ unpaid work or other activity requirement and a conduct requirement) may be imposed instead of or as well as a fine.79 JP courts may only impose community payback orders at level 1, with the addition of residence and conduct requirements.80 A community payback order is defined81 as an order imposing one or more of the following requirements: (a) (b) (c) (d) (e) (f) (g) (h) (i)

an offender supervision requirement, a compensation requirement, an unpaid work or other activity requirement, a programme requirement, a residence requirement, a mental health treatment requirement, a drug treatment requirement, an alcohol treatment requirement, a conduct requirement.

75

1995 Act s. 245A(2A). 1995 Act s. 245A(3). 77 1995 Act s. 245C. 78 1995 Act ss. 245F and 245G. 79 1995 Act s. 227A(4). 80 1995 Act s. 227A(5). 81 1995 Act s. 227A(2). 76

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254 Criminal Evidence and Procedure: An Introduction

An ‘offender supervision requirement’ is a requirement that, during the specified period (at least six months and not more than three years), the offender must attend appointments with the responsible officer (an officer of the local authority who will supervise the person) at such time and place as may be determined by the responsible officer, for the purpose of promoting the offender’s rehabilitation.82 A compensation requirement is a requirement that the offender must pay compensation for any personal injury, loss or damage.83 An unpaid work or other activity requirement is probably the commonest form of community payback order. It is a requirement that the offender must, during the period specified by the court, for the specified number of hours (at least twenty and not more than 300), undertake unpaid work, or unpaid work and another activity. Section 227I of the 1995 Act makes detailed provision for the ranges of hours available in different situations. The number of hours is divided into two levels. Level 1 is a requirement for no more than 100 hours and level 2 is a requirement for more than 100 hours. Section 227K provides that in the case of a ‘mixed’ work requirement, any activity other than work must not exceed 30 per cent of the requirement. A programme requirement is a requirement that the offender must participate in a specified course or other planned set of activities, taking place over a period of time, and provided to individuals or groups of individuals for the purpose of addressing ‘offending behavioural needs’.84 The Caledonian Men’s Programme, designed to address domestic abuse, is a common example.85 A residence requirement is what it says – a requirement that, during the specified period, the offender must reside at a specified place.86 The length of the period cannot be more than that of the offender supervision requirement which must be imposed at the same time. A mental health treatment requirement is a requirement that the offender must submit, during the specified period, to treatment by or under the direction of a registered medical practitioner or a registered psychologist 82

1995 Act s. 227G. 1995 Act s. 227H. 84 1995 Act s. 227P. 85 See Caledonian System Evaluation: Analysis of a programme for tackling domestic abuse in Scotland, https://www.gov.scot/publications/caledonian-system-evaluation-analysisprogramme-tackling-domestic-abuse-scotland/pages/3/ (last accessed 17 June 2021). 86 1995 Act s. 227Q. 83

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(or both) with a view to improving the offender’s mental condition.87 There are complex rules in sections 227R, 227S and 227T about the conditions that must be satisfied before such a requirement can be imposed, the means by which those conditions can be satisfied and how changes may be made in the treatment. A drug treatment requirement is a requirement that the offender must submit, during the specified period, to treatment by or under the direction of a specified person with a view to reducing or eliminating the offender’s dependency on, or propensity to misuse, drugs88; and an alcohol treatment requirement is a similar order with a view to the reduction or elimination of the offender’s dependency on alcohol.89 Finally, a conduct requirement is a requirement that the offender must, during the specified period (not more than three years), do or refrain from doing specified things.90 In Kirk and Hunter v Brown91 the Appeal Court disapproved of requirements in community payback orders that the persons concerned must refrain from committing any criminal offence during the period of the order. In explaining the court’s reasoning, Lord Clarke said that a conduct requirement ‘is to be seen as providing a means which the court considers necessary to achieve the end of good behaviour on the part of the offender. To impose a requirement to be of good behaviour or to refrain generally from committing criminal offences would be to impose the end as a requirement, not to impose a requirement to seek or promote that end’.

The court considered that section 227G(1) and (2) emphasise the rehabilitative nature of the requirement imposed. On imposing a community payback order on an offender, the court may (and often does) include provision for the order to be reviewed periodically.92 In terms of section 227ZC(7) of the 1995 Act, breach of a level 2 community payback order exposes the offender to the risk of a fine not exceeding level 3 on the standard scale, of revocation of the order with the court then dealing with the offender for the original offence, or of imprisonment.

87

1995 Act s. 227R. 1995 Act s. 227U. 89 1995 Act s. 227V. 90 1995 Act s. 227W. 91 2012 SCCR 558. 92 1995 Act s. 227X. 88

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256 Criminal Evidence and Procedure: An Introduction

In terms of section 227ZC(8) breach of a level 1 order imposed on a fine defaulter exposes the offender to the risk of up to three months’ imprisonment. The procedure on breach is similar to that which is followed in relation to restriction of liberty orders. The alleged breach is reported to the court and (unless the court decides to take no action) the offender is either arrested under a warrant or cited to attend. The breach is either admitted or evidence is heard to allow the court to determine whether it is established. Drug treatment and testing order A drug treatment and testing order (‘DTTO’) is an alternative to sentence which lasts for between six months and three years.93 The order can only be made following a report.94 It places the offender under social work supervision and requires the offender to submit to treatment by or under the direction of a specified person with a view to reducing or eliminating dependency on or propensity to misuse drugs.95 It may (and usually does) require the offender to provide regular samples to be tested for drugs96 and it must provide for regular review by the court.97 Breach of the order tends to come to light at a review by the court and can be dealt with by allowing the order to continue, a fine, variation of the order or revocation of the order and sentencing for the original offence.98 Some sheriff courts are designated as ‘drugs courts’ under section 42 of the Criminal Justice (Scotland) Act 2003, as being especially appropriate to deal with cases involving those with drug dependency or a propensity to misuse drugs. Such courts have additional powers to impose very short periods of imprisonment (not more than twenty-eight days in total in relation to any DTTO) or level 1 community payback orders99 requiring up to forty hours’ unpaid work in the event of breach of a DTTO.100 DTTOs in such courts tend to involve particularly intensive and frequent reviews. Antisocial behaviour order Most antisocial behaviour orders are made in the civil court on an application by the local authority under the Antisocial Behaviour etc. (Scotland) Act 93

1995 Act s. 234B. 1995 Act s. 234B(3)(b). 95 1995 Act s. 234C. 96 1995 Act s. 234B(4). 97 1995 Act s. 234F. 98 1995 Act ss. 234G and 234H. 99 See p. 254 below. 100 Criminal Justice (Scotland) Act 2003 s. 42(4). 94

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2004 (the 2004 Act). However, section 234AA of the 1995 Act empowers a criminal court to make such orders if the offender is convicted of an offence, in committing the offence they engaged in antisocial behaviour and the court is satisfied, on the balance of probabilities, that the making of an order is necessary for the purpose of protecting other persons from further antisocial behaviour by the person. A person engages in antisocial behaviour if they act in a manner that causes, or is likely to cause, alarm or distress or pursues a course of conduct that causes, or is likely to cause, alarm or distress.101 The order is one which prohibits, indefinitely or for a period specified in the order, the offender from doing anything described in the order. The prohibitions must be those necessary for protecting other persons from further antisocial behaviour by the offender. There is a mechanism in section 234AA(9) for applications to revoke or vary orders. Breach of an order is an offence in terms of section 234AA(11) of the 1995 Act and section 9 of the 2004 Act. It carries a maximum penalty of five years’ imprisonment. Non-harassment orders A non-harassment order is an order requiring the person against whom it is made to refrain for a specified period from ‘such conduct against the victim as may be specified in the order’.102 ‘Conduct’ is defined by reference to the Protection from Harassment Act 1997, section 8(3) of which provides that ‘conduct’ includes speech. The same section is referred to for the definition of ‘harassment’ as including causing a person alarm or distress. Section 234A(6) of the 1995 Act provides for applications to revoke or vary a non-harassment order. Breach of an order is an offence in terms of section 234A(4), carrying a maximum penalty of five years’ imprisonment. There are two possible routes to a non-harassment order and they have important differences. The section 234A route to the making of the order is used much less frequently than the newer section 234AZA route, which is specific to domestic cases. In terms of section 234A, if the offender has been convicted of misconduct towards another person (and in some other circumstances) the prosecutor may apply to the court to make an order and the court may do so if it is satisfied on a balance of probabilities that it is appropriate to do so in order to protect ‘the victim’ from harassment or further harassment. The section sets out the matters to which the court may have regard. Misconduct ‘towards’ a person does not include misconduct 101

1995 Act s. 234AA(3). 1995 Act s. 234A.

102

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258 Criminal Evidence and Procedure: An Introduction

which is merely in a person’s presence103 but can include making threats in relation to a person in speaking to a third party, at least if the person threatened knows about it.104 Breach of a non-harassment order renders the offender liable to up to five years’ imprisonment and/or a fine.105 Section 234AZA applies section 234A to offences under section 1 of the Domestic Abuse (Scotland) Act 2018 and to offences aggravated as described in section 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016. In terms of section 234AZA(4)(b), even without an application by the prosecutor, the court must consider and after hearing both the prosecutor and the accused must make a non-harassment order ‘unless of a negative conclusion’, which is explained by subsection (5) as ‘the conclusion . . . that there is no need for the victim . . . to be protected by such an order’. Finlay v Procurator Fiscal Perth106 makes it clear that the test in section 234AZA is entirely different from that in section 234A(2). Under section 234A(2), the making of the order is discretionary (‘the court may’), triggered by a Crown motion, and involves the court being satisfied on a balance of probabilities that the order is ‘appropriate’. By contrast, section 234AZA is mandatory unless the sheriff is satisfied that there is no need for the victim to be protected from the offender. Section 234AZA(4)(c) requires a sheriff who reaches a ‘negative conclusion’ to explain the basis for that conclusion. Financial penalties Fines The fine is probably the most commonly imposed sentence. Section 211 of the 1995 Act contains a general power to fine, subject to particular provisions in Acts of Parliament. Under solemn procedure, there is no limit to the amount of the fine which can be imposed in either the High Court or the sheriff court. Under summary procedure, fines are structured within levels on what is known as the ‘standard scale’, which is set out in section 225(2). At the time of writing, that scale was as shown in Table 13.1. By section 5(2) of the 1995 Act a sheriff is empowered, on convicting a person of any common law offence, to impose a fine not exceeding the prescribed sum, which, in terms of section 225(8), is £10,000. However, a number of statutes permit fines on summary conviction of up to £20,000 and such fines can be imposed by the sheriff or a summary sheriff. The JP court is empowered, by section 7(6)(b), to impose a fine not exceeding level 103

SJS v HM Advocate 2016 SCCR 12. Robertson v Vannet 1999 SLT 1081. 105 1995 Act s. 234A(4). 106 [2020] SAC (Crim) 1. 104

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Table 13.1 Level on the scale

Amount of fine

1

£200

2

£500

3

£1,000

4

£2,500

4 on the standard scale. Section 7(7) prohibits the JP court from imposing any fine greater than level 4 unless statute explicitly empowers the JP court to do so. It is thought that no statute does so. It should be noted that in Wann v Macmillan107 it was held that the total financial penalty imposed on a complaint in respect of multiple charges can exceed the maximum for a single offence (by contrast with the position as regards imprisonment). In determining the amount of a fine the court is required, by section 211(7), to take into account the means of the offender so far as known to the court and section 212 specifically permits money found in the possession of the offender to be applied to payment of the fine. The principle of taking into account the means of the offender was applied in Andrew Redpath & Son v MacNeill108 to the case of a corporate offender. In HM Advocate v Discovery Homes (Scotland) Ltd and Pratt,109 the Lord Justice-General (Hamilton) said that it is for the company to place before the court sufficiently detailed information about its financial position to enable the court to see the complete picture without having to resort to speculation. Procedurally, he said: ‘Where a company intends to place financial material before a sentencing judge, sheriff or other judicial office holder in the context of sentencing, it should do so in a way which allows that material adequately to be tested and explored before the sentencing court, both as to its completeness and as to its implications. That is best done if the material to be presented is intimated to the Crown sufficiently well in advance to allow it to consider it and, if appropriate, to make informed representations about it, including in some cases introducing additional material itself. Ordinarily, intimation of copies of the material to the Crown at least 14 days before the sentencing diet will be adequate, though in some cases more time will be requisite. The company should also intimate to the Crown on the same timescale whether it intends to lead evidence from an accountant or any other person at the sentencing diet.’ 107

1956 SLT 369. 1990 GWD 25–1423. 109 [2010] HCJAC 47. 108

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260 Criminal Evidence and Procedure: An Introduction

Provision about time to pay is made by section 214. In most cases, the court must allow at least seven days to pay the fine or the first instalment. The general principle is that the payment of a fine should not take an unreasonably long time but the Appeal Court in Johnston v Lockhart110 disapproved of the proposition that a fine should be capable of being paid within one year. In some cases, time to pay may be refused and in those cases the court may exercise its power to impose imprisonment (unless the fine is paid forthwith). That power is governed principally by section 219. Where time to pay is granted (as it usually is), the court must normally make an enforcement order under section 226B. That order is administered by a fines enforcement officer whose functions are set out in section 226A. It is also open to the sentencing court, in terms of section 217, to make an order placing the offender under supervision for the purposes of assisting and advising them in relation to a fine. There is provision in section 221 for the recovery of fines by civil diligence but that is not usually ordered except in the case of corporate bodies. Where payment is not made timeously, the accused will be at risk of imprisonment in default, the period being calculated according to section 219 of the 1995 Act. Victim surcharge Section 253F(1) requires the court to impose a victim surcharge on conviction. At the time of writing, that applies only where a fine is imposed. In terms of Schedule 1 to the Victim Surcharge (Scotland) Regulations 2019 the surcharges payable are as shown in Table 13.2. Table 13.2 Amount of fine (Column 1)

Surcharge payable (Column 2)

Up to and including £200

£10.00

Between £200.01 and £500 inclusive

£20.00

Between £500.01 and £1,000 inclusive

£40.00

Between £1,000.01 and £2,500 inclusive

£75.00

Between £2,500.01 and £5,000 inclusive

£175.00

Between £5,000.01 and the prescribed sum (as defined by section 225(8) of the 1995 Act) inclusive

£350.00

In excess of the prescribed sum (as so defined)

7.5% of the fine

110

1987 SCCR 537.

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Compensation The compensation order is closely analogous to a fine and is provided for by section 249 of the 1995 Act. Such orders are available for personal injury, loss or damage arising out of an offence, except most road traffic offences, and provided the court has not dealt with the case by deferred sentence, probation or absolute discharge. The maxima are as for fines and the payments are enforced and collected as if they were fines and remitted to the victim by the clerk of court. Caution Caution for good behaviour is another financial ‘penalty’, though it is used very infrequently. It is provided for by section 227 of the 1995 Act. The order is for the offender to lodge a sum of money with the clerk of court as a guarantee of their good behaviour during a period that must not exceed twelve months. If during the specified period of time they stay out of trouble they get the money back with interest; otherwise, they lose it. Confiscation order Confiscation orders are provided for by Part 3 of the Proceeds of Crime Act 2002 (the 2002 Act). The law is moderately complex and, for reasons of space, what is stated here is a highly compressed summary of a regime which runs to over sixty sections in the Act and involves a significant amount of accountancy. The heart of the scheme is in section 92. Where the conditions in the section are satisfied, the court must make a confiscation order. There is no discretion. The basic conditions are that the accused is convicted of an offence or offences and that the prosecutor moves for a confiscation order. If these conditions are satisfied, and the court decides to order some disposal in respect of the accused, the court must decide whether the accused has a criminal lifestyle and, if so, whether they have benefited from their general criminal conduct. If the court decides that the accused does not have a criminal lifestyle, it must decide whether they have benefited from their particular criminal conduct. If the court decides that the accused has benefited from conduct, it must decide the recoverable amount and make a confiscation order requiring them to pay that amount. Where the court is proceeding under the 2002 Act section 92, the prosecutor must give the court a statement of information, in terms of section 101. The statement of information addresses the question whether the accused has a criminal lifestyle and whether they have benefited from their general criminal conduct. If the prosecutor does not believe that the accused has a criminal lifestyle, the statement of information is a statement of matters

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262 Criminal Evidence and Procedure: An Introduction

relevant to whether the accused has benefited from their particular criminal conduct. Where the prosecutor provides a statement of information, section 102 requires the court to order the accused to indicate the extent to which they accept each allegation in the statement and, so far as they do not accept an allegation, to give particulars of any matters they propose to rely on within the period it orders. If, in the response that they make, the accused fails to comply with those requirements, they may be treated by the court as accepting every allegation in the statement of information apart from those allegations which they have addressed properly in their response and the general allegation that they have benefited from their criminal conduct. It follows that “skeleton defences” consisting of bare denials will avail the offender nothing. The statement of information and the response are considered by the court at a hearing, with evidence if necessary, and the court decides what has been proved (on a balance of probabilities111) about whether or not the accused has a criminal lifestyle and the extent to which they have benefited. In deciding that, in a case in which it concludes that the accused has a criminal lifestyle, the court is required by section 96 to make four assumptions. They are that any property transferred to the accused at any time within six years before the commencement of proceedings for the offence was obtained by them as a result of their general criminal conduct; that any property held by the accused after the date of their conviction was obtained as a result of their general criminal conduct; that any expenditure incurred by the accused at any time in the six years before proceedings were commenced was met from property obtained as a result of general criminal conduct; and that, for the purpose of valuing property obtained by the accused, they obtained it free of any interests in it. Those assumptions must not be made if the accuse shows them to be incorrect and that underlines the importance of the response to the statement of information. There are several expressions in that regime which require further explanation. ‘Criminal lifestyle’ is defined in section 142 and Schedule 4 to the 2002 Act and it refers to: (a) a range of offences that might be described as ‘enterprise crime’, such as money laundering and trafficking in drugs or persons; (b) conduct which forms part of a course of criminal activity (as defined in section 142); or conduct which has taken place over at least six months. ‘General criminal conduct’ and ‘particular criminal conduct’ are both defined in section 143. ‘General criminal conduct’ means all of the criminal

111

2002 Act s. 92(9).

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conduct of the accused, while ‘particular criminal conduct’ relates to the offence of which they have been convicted. The recoverable amount is an amount equal to the accused’s benefit from the conduct concerned unless the ‘available amount’ is less.112 ‘Available amount’ is defined in section 95 and what it comes to is the value of what the accused actually has plus the value of any tainted gifts as defined in the 2002 Act section 144. A transfer of property is a gift if it is made for significantly less than the value of the property and it is tainted if it was made at any time in the six years before the institution of proceedings for the offence of which the accused has been convicted or if it was made out of property obtained from criminal conduct. When the court makes a confiscation order, it is enforced, in terms of section 118, in the same way as a fine. In terms of section 116, the order is, in the first instance, payable immediately but if the accused shows that they need time to pay the court may make an order allowing them to pay within a specified period, which must not be more than six months. The accused can apply for further time to pay but the outer limit, in terms of section 116(5), is twelve months from the making of the order.113 In the event of failure to pay, the 2002 Act provides for the appointment of an administrator to realise and ingather the accused’s property and section 118(5) provides that any sentence of imprisonment imposed in default of payment is to run consecutively to the sentence for the offence.

Chapter overview • When an accused person pleads guilty or is convicted after trial, the prosecutor moves for sentence (in solemn procedure) and tenders any notice of previous convictions (under both solemn and summary procedure). • It is not competent for a party to address the court about what underlies a previous conviction. • Those sentenced to imprisonment are released part-way through their sentence but if they commit crime between release and the date when the sentence would have expired (the “unexpired portion”) the court which deals with them for the new offence can order their return to complete the earlier sentence in custody. • If the accused pleads guilty, the prosecutor narrates the facts of the offence.

112

2002 Act s. 93. For all of this, see HM Advocate v Cheung 2013 SLT (Sh Ct) 131.

113

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264 Criminal Evidence and Procedure: An Introduction

• In some circumstances, the prosecutor can seek forfeiture of property used in the commission of crime. • Conviction of an offence listed in Schedule 3 to the Sexual Offences Act 2003 renders an offender liable to the notification requirements under that Act – the so-called “sex offenders register”. That liability arises ex lege and is not a matter of judicial discretion. • A criminal justice social work report is required before the imposition of sentence if: A custodial sentence is being considered and the offender is under twenty-one or has not previously served a custodial sentence. The court is considering a community payback order or drug treatment and testing order. The offender is under statutory supervision. • After the prosecutor has delivered the narrative, the defence make a plea in mitigation. This is usually reserved until any criminal justice social work report is to hand. • By section 196 the court must take into consideration the stage at which the offender indicated their intention to plead guilty. This is done by applying a sliding scale of discounts. Although the selection of the discount is a matter for the sentencing judge, having regard to the utility of the plea to the criminal justice system, in general that means: For plea at the earliest opportunity (section 76 letter under solemn procedure or first calling of a summary complaint), a discount of one third. For a plea at first diet/preliminary hearing or at intermediate diet, a discount of one quarter. For a plea at trial but before the trial starts, a discount of one tenth. For a plea thereafter, no discount. • A sentencing court is obliged to have regard to guideline decisions and to guidelines issued by the Scottish Sentencing Council. • In sentencing a young offender, rehabilitation is a particularly important consideration. • The High Court of Justiciary may impose a sentence of life imprisonment. • For crimes other than murder, life imprisonment is replaced in practice by an order for lifelong restriction, which is a sentence of imprisonment or detention for an indeterminate period. A risk assessment is required before such an order can be made. • When imposing a life sentence or an order for lifelong restriction, the sentencing judge must set a punishment part, which is the minimum time the offender must spend in prison before being considered for release. • If the court intends to impose a determinate sentence in a sexual offence or a sentence of four years or more in a violent or terrorism offence, it

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Sentencing 265

• • • •

• • •

• • • • • •

may pass an extended sentence comprised of a custodial part and an extension period during which the offender is subject to licence. In other cases on indictment, the court may impose a supervised release order if it considers that necessary to protect the public. Section 204(3A) creates a presumption against custodial sentences shorter than twelve months. A restriction of liberty order requires the offender to be in a specified place for a specified period of not more than twelve hours in any one day. A community payback order is an order imposing one or more of: an offender supervision requirement; a compensation requirement; an unpaid work or other activity requirement; a programme requirement; a residence requirement; a mental health treatment requirement; a drug treatment requirement; an alcohol treatment requirement; a conduct requirement. A drug treatment and testing order places the offender under social work supervision and requires the offender to submit to treatment. It usually involves regular testing. An antisocial behaviour order prohibits the offender from doing what is described in the order, with a view to protecting persons from antisocial behaviour by the offender. A non-harassment order is an order requiring the offender to refrain from conduct against the victim specified in the order. Where the offence is a domestic one, the order must be made unless the court concludes that there is no need for the victim to be protected by such an order. Under solemn procedure there is no limit to the fine that can be imposed on an offender. Fines under summary procedure are structured according to the standard scale. In determining the amount of a fine, the court must take into account the means of the offender. Imposition of a fine renders the offender liable also to pay the victim surcharge. The court may order the payment of a compensation order for personal injury, loss or damage arising out of an offence. Confiscation orders may be imposed in accordance with the procedure in the Proceeds of Crime Act 2002.

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Chapter fourteen

Appeals

The Criminal Procedure (Scotland) Act 1995 (the 1995 Act) provides both the accused and the Crown with rights of appeal. Under solemn procedure, appeal lies to the High Court of Justiciary. Under summary procedure, it lies to the Sheriff Appeal Court. There is an appeal from the Sheriff Appeal Court to the High Court but only on a point of law and only with the permission of the High Court.1 That permission can only be given if the High Court considers that the appeal would raise an important point of principle or practice or that there is some other compelling reason to hear the appeal.2 There are also common law appeals (‘appeals’ is probably a misnomer) by bill of suspension, bill of advocation and petition to the nobile officium. With leave of the High Court, an appeal lies to the Supreme Court under section 288A of the 1995 Act in relation to the determination of a compatibility issue, following which the proceedings are remitted to the High Court which then applies the decision in the particular case. In this chapter, we begin with defence appeals, then consider Crown appeals and we end the chapter, and the book, with the common law remedies.

Defence appeals Solemn procedure Appeals from preliminary hearings and first diets. As we saw in Chapter Eight, section 74 of the 1995 Act provides for an appeal to the High Court against certain decisions at a preliminary hearing or first diet. Section 74(2) excludes from appeal at this stage decisions to adjourn, decisions to allow questioning after official charge, decisions about vulnerable witnesses and decisions to appoint the case to trial. Put in more positive and practical terms, section 74 appeals are the means by

1

1995 Act s. 194ZB(1). 1995 Act s. 194ZB(3).

2

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which decisions about preliminary pleas and preliminary issues are brought under review. As we also saw, a section 74 appeal is only competent with the leave of the court of first instance,3 which may be granted upon the motion of the party wishing to appeal or by the court ex proprio motu, but which will not be granted automatically or easily.4 The Act of Adjournal (Criminal Procedure Rules) 1996 (the Criminal Procedure Rules) provide that, if leave is to be sought, that must be done at the preliminary hearing or first diet immediately following the making of the decision in question, and that it must either be granted or refused there and then.5 If leave to appeal is granted, the High Court may adjourn the trial6 so as to allow the appeal to be dealt with first. Section 74(2)(b) provides the appeal must be ‘taken’ not later than seven days after the decision. This is different from the application for leave to appeal. Rules 9.6 and 9A.7 provide that such appeals are to be taken by way of note of appeal, which is to be in the form prescribed and lodged with the appropriate clerk of court. The forms are skeletal but their most important aspect is probably the requirement to specify the grounds of the appeal. The Appeal Court has been resistant to allowing grounds not specified to be argued,7 though the possibility is not excluded absolutely. The High Court of Justiciary Practice Note of 29 March 19858 stresses the importance of the grounds of appeal not only to the Appeal Court but also to any judge who has to write a report for the Appeal Court. Once the note of appeal has been lodged the clerk must request and the judge at first instance provide a report on the circumstances relating to the decision appealed. A copy of the report is then sent to the parties. Once the appeal has been heard, the Appeal Court may affirm the decision of the court of first instance or remit the case to it with appropriate directions. If the court of first instance has dismissed the indictment, complaint or part of it that decision may be reversed and the court of first instance may be directed to fix a trial diet.

3

A prosecutor’s appeal against dismissal of the indictment does not require leave. See p. 138 and Haashi v HM Advocate 2015 JC 4. 5 Criminal Procedure Rules rr. 9.5 and 9A.6. 6 1995 Act s. 74(3). 7 For an example, see Templeton v HM Advocate 1987 SCCR 693. 8 ‘Appeals in solemn procedure and appeals against sentence in summary procedure.’ 4

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268 Criminal Evidence and Procedure: An Introduction

Appeals against conviction Section 106 of the 1995 Act provides: ‘(1) Any person convicted on indictment may, with leave granted in accordance with section 107 of this Act, appeal in accordance with this Part of this Act, to the High Court (a) against such conviction . . . (3) By an appeal under subsection (1) above a person may bring under review of the High Court any alleged miscarriage of justice, which may include such a miscarriage based on (a) subject to subsections (3A) to (3D) below, the existence and significance of evidence which was not heard at the original proceedings; and (b) the jury’s having returned a verdict which no reasonable jury, properly directed, could have returned.’

We shall consider leave in terms of section 107 below. First, we need to understand the concept of miscarriage of justice and review the law in relation to fresh evidence and verdicts which no reasonable jury could have returned. Miscarriage of justice: Generally It is not enough that the defence have identified some procedural error or misdirection of the jury about the law. The question which the Appeal Court will consider is whether or not there has been a miscarriage of justice. The test for determining whether a miscarriage of justice has occurred is whether there is a real possibility that, but for the issue which arises in the appeal, there would have been a different verdict.9 This is very factspecific. It depends on the circumstances of the individual case. One does not have to read many opinions issued by the Appeal Court before running across a case in which it is clear that a mistake has been made but in which the appeal is refused because it is not demonstrated that the mistake led to a miscarriage of justice. The kind of thing which does amount to a miscarriage of justice can be illustrated by Ditchburn v HM Advocate.10 There is nothing special about the case. It is simply the most recent example at the time of writing. The evidence was that there had been an argument between the appellant and the deceased and that the appellant punched or slapped the deceased on the jaw. Subsequently, the deceased slumped off his seat and fell to the floor, bleeding from the mouth. The medical evidence was that complications of blunt force trauma were one element in a multi-factorial death. The trial 9

Armstrong v HM Advocate 2006 SCCR 21. 2021 SCCR 1.

10

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judge’s charge included directions that culpable homicide is causing someone’s death by an unlawful act which is culpable or blameworthy and that the unlawful act must be intentional or at least reckless or grossly careless. However, there had been no reference to recklessness or gross carelessness in the course of the trial. That was introduced for the first time in the judge’s charge. It was argued successfully on appeal that the reference to recklessness or gross carelessness was a misdirection, that there was a realistic possibility that the appellant was convicted upon an erroneous basis as to the necessary mens rea and that the misdirection was material and productive of a miscarriage of justice. The conviction was quashed.11 By way of contrast, one may consider MacDonald v HM Advocate12 in which the trial sheriff, in charging the jury, referred several times to the complainer as ‘the victim’. We saw in Chapter One that the correct expression, until a conviction is recorded, is ‘the complainer’. In MacDonald, the Appeal Court held that the use of the word ‘victim’ was ‘unfortunate’ but that, in context, the sheriff had not, by using it, been suggesting that the crimes had been committed. There was no miscarriage of justice and the appeal was refused. Again, there is nothing special about the case; it is simply, at the time of writing, a recent example. Defective representation as miscarriage of justice Since at least Anderson v HM Advocate,13 it has been open to a convicted person to appeal on the ground that there was such a defect in the way they were represented at trial that the trial was unfair and that there was, accordingly, a miscarriage of justice. The court emphasised in Anderson that it is not enough that a different lawyer might have gone about defending the case differently. In Edwards v HM Advocate,14 Lord Nimmo Smith observed that most cases on defective representation are no more than the application of the principles in Anderson to particular circumstances. In practice, what has to be established is that the defence was conducted in a way that no reasonable defence lawyer would have adopted or in a way that failed to follow the instructions of the client. Additional evidence Section 106(3)(a) of the 1995 Act provides for an appeal where it is claimed that there was a miscarriage of justice based on the existence and significance of evidence which was not heard at the original proceedings. This is 11

And authority was granted for a new prosecution – see p. 276 below. 2020 SCCR 251. 13 1996 SCCR 114. 14 2009 SCCR 871. 12

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qualified by subsection (3A), which provides that such evidence may only found an appeal where there is a reasonable explanation of why it was not heard in the original proceedings. The requirement that the evidence must not have been heard at the trial is, on the face of it obvious, but the court has had to deal with certain refinements. The first of these is the meaning of the word ‘evidence’, and in White v HM Advocate15 the question related to a person referred to in appellant’s defence at the trial who had not been available to be identified by witnesses. The person was later traced. The Appeal Court held that since what was in issue was not the person’s evidence but his presence at the trial there was no question of his evidence having a bearing on the verdict and it was not in the interests of justice to allow his evidence to be led. Assuming that what is proffered actually is evidence, it was made clear in Maitland v HM Advocate16 that the court will decline to hear it if it merely adds to evidence already given. This rule was derived from Temple v HM Advocate17 in which the court had refused to allow additional evidence to be led to supplement evidence given at trial in support of an alibi. This whole area of law was the subject of several cases and some confusion during the late 1990s and the High Court took the opportunity in Kidd v HM Advocate18 to state the essential principles succinctly. Most fundamentally, the ‘governing question’ is whether the fact that the additional evidence was not heard at the trial represented a miscarriage of justice – because that is the test set out in section 106(3)(a) of the 1995 Act. The question for the Appeal Court, therefore, is whether the additional evidence is of such significance as to lead to the conclusion that a verdict returned in ignorance of it must be regarded as a miscarriage of justice. It is not enough to say that the additional evidence has some significance. In applying this (somewhat demanding) test, the Appeal Court will pay close attention to the quality of the additional evidence. The court said in Kidd that it would require to be satisfied that the evidence must be capable of being regarded by a reasonable jury as credible and reliable. As summarised by the court in Al Megrahi v HM Advocate,19 the law is as follows: (1) The court may allow an appeal against conviction on any ground only if it is satisfied that there has been a miscarriage of justice. 15

1989 SCCR 553. 1992 SCCR 759. 17 1971 JC 1. 18 2000 SLT 1068. 19 2002 SCCR 509. 16

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(2) In an appeal based on the existence and significance of additional evidence not heard at the trial, the court will quash the conviction if it is satisfied that the original jury, if it had heard the new evidence, would have been bound to acquit. (3) Where the court cannot be satisfied that the jury would have been bound to acquit, it may nevertheless be satisfied that a miscarriage of justice has occurred. (4) Since setting aside the verdict of a jury is no light matter, before the court can hold that there has been a miscarriage of justice it will require to be satisfied that the additional evidence is not merely relevant but also of such significance that it will be reasonable to conclude that the verdict of the jury, reached in ignorance of its existence, must be regarded as a miscarriage of justice. (5) The decision on the issue of the significance of the additional evidence is for the Appeal Court, which will require to be satisfied that it is important and of such a kind and quality that it was likely that a reasonable jury properly directed would have found it of material assistance in its consideration of a critical issue at the trial. (6) The Appeal Court will therefore require to be persuaded that the additional evidence is: (a) capable of being regarded as credible and reliable by a reasonable jury; and (b) likely to have had a material bearing on, or a material part to play in, the determination by such a jury of a critical issue at the trial. A verdict which no reasonable jury could have returned. Section 106(3)(b) of the 1995 Act provides that the expression ‘any alleged miscarriage of justice’ includes a miscarriage of justice based on the jury’s having returned a verdict which no reasonable jury, properly directed, could have returned. The test to be applied was stated in the opinion of the Appeal Court, delivered by the Lord Justice-General, in Mitchell v HM Advocate20: ‘Although in consideration of such a ground of appeal it may be necessary to consider individual items of evidence, it is important to notice that it is the verdict, that is, the conclusion on the whole evidence, which must be considered. Moreover the ground is only made out if no reasonable jury, properly directed, could have returned the verdict in question . . . The test is objective . . . This court is not entitled to quash the verdict of the jury merely because, on the basis of the record of the evidence, it would have reached a different view from that which the jury plainly reached . . . ’21

20

2008 SCCR 469 at 521 (para. 111). Emphasis in original.

21

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The test was outlined again in Smith v HM Advocate22 by the Lord JusticeGeneral (Carloway): ‘The test in relation to the unreasonableness of a jury’s verdict . . . is an objective and a high one. It is only in the most exceptional circumstances that an appeal on this ground will succeed. A verdict will be quashed only if the court is satisfied that no reasonable jury could have been satisfied beyond reasonable doubt that the appellant was guilty. The determination of fact remains the province of the jury, even if there must be a base line of quality.’23

Underlying this is the principle that it is not open to the Appeal Court to take a different view of the facts than was taken by the tribunal of fact – the jury in a case on indictment or the trial judge under summary procedure. In McQuarrie v Carmichael24 the purported ground of appeal was that ‘police evidence at the time of the trial was untrue’. Lord Justice-Clerk Ross explained that this is not a matter that can be brought under review in a stated case because the facts are a matter for the sheriff (and, by implication, for the sheriff alone). Similar reasoning may be applied to appeals from conviction by juries. In Al Megrahi v HM Advocate25 the Appeal Court said: ‘We have no doubt that, once evidence has been accepted by the trial court, it is for that court to determine what inference or inferences should be drawn from that evidence. If evidence is capable of giving rise to two or more possible inferences, it is for the trial court to decide whether an inference should be drawn and, if so, which inference. If, of course, the Appeal Court were satisfied that a particular inference drawn by the trial court was not a possible inference, in the sense that the drawing of such an inference was not open to the trial court on the evidence, that would be indicative of a misdirection and the Appeal Court would require to assess whether or not it had been material.’

The Megrahi case has been back to the Appeal Court on a number of occasions. At the time of writing, the most recent opinion was delivered in January 2021.26 In that opinion, the Lord Justice-General reaffirmed what had been said before:

22

2017 JC 54. References omitted. 24 1989 SCCR 371. 25 2002 SCCR 509. 26 The Representative of the Late Abdelbaset Ali Mohamed Al Megrahi v HM Advocate 2021 SCCR 64. 23

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‘An appellate court, in this jurisdiction, does not retry the case. If evidence is capable of giving rise to more than one inference, it is primarily for the trial court to decide whether any inference should be drawn and, if so, which one. It is only if it was impossible, or under s106(3)(b) unreasonable, to draw the relevant inference that an appellate court could hold that a miscarriage of justice has occurred.’

Procedure Under solemn procedure the appeal is by Note of Appeal. This is a twostage process, the first stage being accomplished, in terms of the 1995 Act section 109, by the lodging with the Clerk of Justiciary of written intimation of intention to appeal. That intimation must be lodged within two weeks of the final determination of the proceedings and a copy must be sent to the Crown Agent. Application should be made at this point for any necessary interim orders (such as suspension of disqualification from driving). Determination of the proceedings is defined by subsections (4) and (5) as occurring when sentence is pronounced or when sentence is first deferred.27 In terms of the 1995 Act section 111(2) and 103(7) that period may be extended by a single judge and this was done in, for example Boyle v HM Advocate.28 As was made clear in Clayton, Petitioner29 the provisions allowing extensions of time limits in both solemn and summary appeals are not themselves subject to time limits and an application for an extension can therefore be made at any time. The second stage under solemn procedure, in terms of the 1995 Act section 110 is the lodging with the Clerk of Justiciary of a written note of appeal. By section 110(1), that must be done within eight weeks of the lodging of the intimation of intention to appeal. Sections 111 and 103 allow the extension of this period also. When a note of appeal is lodged, the judge’s directions to the jury and the returning of the verdict are transcribed and the papers are passed to the judge for a report under section 113(1) giving an opinion on the case generally and on the grounds contained in the note of appeal in particular. The form for the note of appeal is set out in Form 15.2-B and its essence is a ‘full statement of all grounds of appeal’, as section 110(3) requires. The importance of the grounds of appeal must be emphasised. Submissions which go beyond the grounds specified cannot be heard except by leave of the Appeal Court on cause shown. The Practice Note of 29 March 1985 on 27

That is, deferral in terms of 1995 Act s. 202, not adjournment for reports. 1976 SLT 126. 29 1991 SCCR 261. 28

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Appeals in solemn procedure and appeals against sentence in summary procedure, which remains in force, criticises in particular the bare assertions that there was ‘misdirection’ or ‘insufficient evidence’ without further specification and points out that ‘the appeal court may be expected, save in exceptional circumstances and on cause shown, to refuse to entertain any appeal upon any unspecific ground’. In Smith v HM Advocate30 Lord Justice-General Emslie had the following to say: ‘The note of appeal tells us that the ground of appeal is “Misdirection of jury by judge”. Now that, of course, is an irrelevant ground of appeal because it does not specify what the alleged misdirection is . . . we are not disposed to entertain appeals containing an attack upon a judge’s charge unless the alleged misdirection is clearly specified. There are several good reasons for that: (1) the Crown must have an opportunity to consider its position, (2) the judge must have an opportunity to explain and deal with the alleged misdirection and (3) this court must, in advance of the hearing, be in a position to examine the charge in light of the specific criticisms which are being made.’

Similar comments were made in Mitchell v HM Advocate.31 There was some slight comfort for the appellants in both Smith and Mitchell in that the court observed in each case that so far as they could see there was no merit in the appeal anyway. However, if in any case there was a good point which the court refused to allow to be argued on the basis of the inadequacy of the grounds stated the result might well be that a conviction or sentence that should have been quashed would be allowed to stand with all that means. There has also to be borne in mind the fact that the content of the note of appeal will be a major factor in deciding whether or not leave to appeal is to be granted and there is, therefore, a substantial risk that inadequate grounds will provoke a refusal of leave to appeal. There is provision in rule 15.15 of the Criminal Procedure Rules for amendment of grounds of appeal but only on cause shown. Where grounds of appeal are amended, the new grounds are – or ought to be – sent to the trial judge for a further report. Reference by the Scottish Criminal Cases Review Commission By section 194A, the 1995 Act establishes the Scottish Criminal Cases Review Commission (‘SCCRC’) which may, under section 194B, refer to the High Court any case they think fit, whether or not there has already 30

1983 SCCR 30. 1991 SCCR 216.

31

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been an appeal in the case. If they do so, it is heard and determined as if it were an appeal under Part VIII of the Act – that is, the provisions relating to appeals under solemn procedure. Leave to appeal Before the appeal can go forward, leave from the Appeal Court is required. The procedure for obtaining that leave is set out in the 1995 Act section 107. Essentially it involves a ‘sift’ by a single High Court judge. If that judge considers that there are arguable grounds of appeal, leave to appeal will be granted. If not, it will be refused, the reason being given in writing. A further application for leave may be made within fourteen days of refusal of leave and the matter is considered again on what is referred to as ‘second sift’. If leave is refused at second sift, that is an end of the proceedings. Applications for leave are dealt with in chambers and without the parties being present. The documents which are to be considered upon an application for leave are set out in each subsection (2). They are the note of appeal, a certified copy or the original of the record of proceedings, the trial judge’s report and a transcript of the judge’s charge to the jury if the notes have been extended. The test to be applied is whether the documents disclose arguable grounds of appeal and this is not a high hurdle. The legislation does not require the judge considering whether or not to grant leave to form any view on the likelihood that the appeal will succeed. It is enough that it is stateable. If the test is passed, the judge is to grant leave and ‘make such comments in writing as he considers appropriate’. In any other case, they are to refuse leave, giving reasons in writing, and, where the appellant is on bail and the sentence in the case appealed is one of imprisonment, grant a warrant for arrest. The warrant does not take effect for fourteen days to allow for appeal to second sift. Powers of court The powers of the court in dealing with appeals against conviction are dealt with primarily by section 118 of the 1995 Act. The Appeal Court may dispose of an appeal against conviction by affirming the verdict of the trial court (i.e. refusing the appeal), by setting aside the verdict of the trial court and either quashing the conviction or substituting an amended verdict of guilty or by setting aside the verdict of the trial court and granting authority to bring a new prosecution. If the Appeal Court substitutes an amended verdict of guilty it must ensure that the amended verdict is one which could have been returned on the indictment or complaint before the trial court.

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The setting aside of a conviction will obviously have a bearing on the sentence. Where the whole conviction on the indictment is set aside, the whole sentence will fall with it. However, where a conviction is only partly set aside, either because convictions remain on other charges on the indictment or because an amended verdict of guilty is substituted, the sentence might well become inappropriate. Accordingly, the Appeal Court is empowered, in setting aside a verdict, to quash any sentence imposed on the appellant as respects the indictment or complaint and pass another sentence. That sentence, however, must not be more severe than the original sentence. Authority for a new prosecution is provided for by the 1995 Act section 118(1)(c), the procedure being regulated by section 119. Where such authority is granted, a new prosecution may be brought charging the accused with the same or any similar offence arising out of the same facts. However, by subsection (2), the accused cannot be charged with an offence more serious than that of which they were convicted in the earlier proceedings and, by subsection (3) no sentence may be passed on conviction under the new prosecution which could not have been passed on conviction under the earlier proceedings. Subsection (4) disapplies any time limit which would ordinarily apply to the case but by subsection (5) the new prosecution must be commenced within two months of the date on which authority to bring the prosecution was granted, otherwise the setting aside of the conviction by the Appeal Court operates as a complete acquittal. It is not in every case that the court will grant authority for a new prosecution. In particular, where the Crown has contributed to the error which resulted in the miscarriage of justice, the court may be slow to give the Crown a second bite at the cherry. Where, however, the mistake was solely that of the trial judge there is a greater chance of authority being granted. So in McGhee v HM Advocate32 the Appeal Court said that as the miscarriage of justice arose from comments made by the judge and as there was no suggestion that there was any insufficiency of evidence, authority should be given for a new prosecution. Greater detail was given of the reasoning which led to the granting of authority to bring a new prosecution in Wilkinson v HM Advocate.33 There, Lord Justice-General Hope said: ‘This was a case where the misdirection arose solely out of a decision taken by the sheriff himself. There was nothing done by the Crown, so far as we have been told, which in any way contributed to his decision. The events

32

1991 SCCR 510. 1991 SCCR 856.

33

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which were the subject of the charge . . . are of relatively recent happening. There is nothing in the facts or circumstances to suggest that it would be contrary to the public interest that a fresh prosecution should be brought.’

This should not, of course, be construed as an exhaustive list of the criteria which the Appeal Court will regard as relevant but it is probably a good working guide. Appeals against sentence It is very common for a person who appeals against conviction to appeal against sentence at the same time. In that event, the appeal against sentence is dealt with as part of the procedure described above. In an appeal by a convicted person against sentence (but not conviction), the issues are much simpler than those involved in an appeal against conviction and the procedure to some extent reflects that relative simplicity. The test applied in an appeal against sentence is whether in all the circumstances the sentence imposed was excessive.34 In making provision for the disposal of appeals, section 118(4) of the 1995 Act provides that the High Court may quash the sentence and substitute another sentence ‘if the Court thinks that, having regard to all the circumstances . . . a different sentence should have been passed’. By section 110(1)(a) of the 1995 Act an appeal against sentence alone commences with the lodging of a written note of appeal with the Clerk of Justiciary within two weeks of the passing of sentence. The preliminary step of lodging intimation of intention to appeal does not apply. The sentencing judge supplies a report and the appeal is then considered for leave in the same way as an appeal against conviction. If leave is refused at first sift, an application to second sift is considered by two judges because that is the quorum for sentence appeals. By the 1995 Act section 118(4) the Appeal Court may dispose of an appeal against sentence by affirming the sentence or, if it thinks that, having regard to all the circumstances, a different sentence should have been passed, by quashing the sentence and passing another sentence. However, it is very important to note that the sentence will not necessarily be reduced in such a case. The Appeal Court has the power to increase it, though it does so quite rarely since the introduction of the requirement for leave to appeal. Unmeritorious appeals are unlikely to be considered by the court beyond sift. Summary procedure Appeals under summary procedure go to the Sheriff Appeal Court and are dealt with in terms of Part X of the 1995 Act. 34

Donaldson v HM Advocate 1983 SCCR 216.

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Appeals relating to preliminary pleas Section 174 of the 1995 Act provides a right of appeal against a decision taken by a court at first instance which relates to ‘such objection or denial as is mentioned in section 144(4)’ of the Act. Section 144(4) deals with objections to the competency or relevancy of a summary complaint or the proceedings thereon. Like a section 74 appeal under solemn procedure, an appeal under section 174 is only competent with the leave of the court of first instance,35 which may be granted upon the motion of the party wishing to appeal or by the court ex proprio motu. By rule 19.1(1) the application for leave must be made after the accused has stated how they plead to the charges but the effect of rule 19.2 is that they must do so immediately at that point, because the court must determine the application for leave immediately after the decision. Section 174(1) provides the appeal must be ‘taken’ not later than seven days after the decision and that is done by lodging a note of appeal with the clerk of the court that granted leave to appeal.36 By section 174(2) the Sheriff Appeal Court may postpone the trial diet pending the appeal. Once the note of appeal has been lodged the clerk must request and the judge at first instance provide a report on the circumstances relating to the decision at the preliminary diet. A copy of the report is then sent to the parties. By section 174(4), in disposing of the appeal, the Sheriff Appeal Court may affirm the decision of the court of first instance or remit the case to it with appropriate directions. If the court of first instance has dismissed the complaint or part of it that decision may be reversed and the court of first instance may be directed to fix a trial diet. Appeals against conviction Generally Section 175(2) and 175(5) of the 1995 Act provides: ‘Any person convicted, or found to have committed an offence, in summary proceedings may, with leave granted in accordance with section 180 of this Act . . . appeal under this section to the Sheriff Appeal Court (a) against such conviction, or finding . . . ’ (5) By an appeal under subsection (2) above, an appellant may bring under review of the Sheriff Appeal Court any alleged miscarriage of justice, which may include such a miscarriage based, subject to subsections (5A) to (5D) below, the existence and significance of evidence which was not heard at the original proceedings.’ 35

A prosecutor’s appeal against dismissal of the indictment does not require leave. Criminal Procedure Rules r. 19.1(4) and (5).

36

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This is, of course, directly equivalent to the provisions of section 106 for solemn procedure except that the possibility of appealing on the basis that the verdict was one which could not reasonably have been returned is not, in terms, a feature of summary appeals. On the other hand, the decisionmaker under summary procedure is a judge who can be asked to explain his or her decision. The appeal takes the form of the stated case, which requires that explanation to be given. That, arguably, brings the decision under much more detailed review. The test, as under solemn procedure, is whether there has been a miscarriage of justice and, as under solemn procedure, that can include a miscarriage based on the existence and significance of evidence not heard at trial. The law in relation to these matters does not differ from that applicable under solemn procedure. Procedure There is, however, a striking difference in procedure. Section 176(1) provides for such appeals against conviction under summary procedure to be by application for a stated case and requires that such an application should be made by lodging it with the clerk (of the court which convicted the appellant) within one week of the final determination of the proceedings. A copy is to be sent to the respondent and the application itself is to ‘contain a full statement of all the matters which the appellant desires to bring under review’. The form is set out in Form 19.2-A. It is good practice to specify the matters to be reviewed distinctly and in separate paragraphs. Application should be made at this point for any necessary interim orders (such as suspension of disqualification from driving). It is open to the convicting court to grant bail pending the appeal.37 Just as the grounds of appeal are of great importance under solemn procedure, so the statement of matters desired to be brought under review is crucial in a summary appeal by stated case. The High Court38 pointed out in Durrant v Lockhart39 that the requirement to give a full statement of the matters to be brought under review was introduced: ‘so that the sheriff, when he stated the case, could be in no doubt as to what particular issue it was that the applicant was seeking to bring under review,

37

1995 Act s. 177(1). The law about the form which a stated case should take was already in a fully developed form many years before the inauguration of the Sheriff Appeal Court and so the relevant cases all come from the High Court of Justiciary. 39 1986 SCCR 23. 38

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and so that he could state in his findings in fact the matters which were appropriate to that issue’.

Section 182(3) makes it incompetent for an appellant to found on any matter not contained in the application. There is in the 1995 Act section 176(3) provision for the amendment of the application for a stated case, so that an application which is defective when lodged, either because it is unspecific or because it does not refer to a ground which it is hoped to argue, can be corrected. Section 178 of the 1995 Act requires the sheriff (or clerk to the JP court) to issue a draft stated case within three weeks of final determination of the proceedings. Form 19.2-B requires the trial judge to: ‘state concisely and without argument the nature of the cause and the facts if any admitted or proved in evidence, any objections to the admission or rejection of evidence taken in the proof, the grounds of the decision and any other matters necessary to be stated for the information of the superior court’.

The stated case begins by setting out or summarising the relevant charges and narrates the procedural history, including the decision and disposal. There follows a series of numbered paragraphs setting out the facts found to be admitted or proved. If the appeal is against a decision about a submission of no case to answer, the Crown evidence is narrated. Thereafter, the reasons for the decision are explained, under reference to the evidence led and to any objections taken in course of the evidence. This involves narrating what the evidence was and stating which parts of the evidence were accepted and which rejected (and why). Finally, questions are posed for the Sheriff Appeal Court. They will be informed by the matters which the application for the stated case seeks to bring under review and will address matters such as whether the court erred in repelling a submission of no case to answer and whether the court was entitled to make particular findings in fact and to convict. It ought to be possible for one who reads the stated case to understand exactly what evidence was led, what the issues were and what the reasoning was that led to the final decision. The draft should set out the facts which the trial judge has found to be admitted or proved and not merely the statements of the witnesses40 nor merely the questions and answers which were the subject of objection.41 Gordon v Allan42 is a particularly clear example of how a stated case should 40

Gordon v Hansen (1914) 7 Adam 441; Pert v Robinson 1955 SLT 23. Waddell v Kinnaird 1922 JC 40. 42 1987 SLT 400. 41

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not be drafted. In that case, the appellant was convicted in a JP court of assault. The case prepared was, according to Lord Justice-General Emslie, ‘woefully deficient in that it contained no findings in fact but merely a narration of evidence without any indication of the extent to which the justice accepted or rejected it’. The High Court, at first, remitted the case to the justice to prepare a proper stated case but his second effort was no better than his first and the court simply quashed the conviction, observing that: ‘it is no good writing a stated case and pretending that facts found can be discovered by a recitation of evidence. Findings in fact ought to be crisp, clear and certain, and if discussion of the evidence is relevant for the purposes of an appeal the place for that discussion is in the note which follows the findings which, upon the evidence, the justice has found himself able to make’.

It was made clear in Bowman v Jessop43 that it is incorrect, in a case in which there has been a conviction, to confine the material in the stated case to that which is derived from the Crown case. The grounds of the decision should be stated distinctly in the stated case so as to avoid the problem which occurred in Lyon v Don Brothers Buist & Co44 in which the sheriff-substitute, after setting forth the facts which were proved, stated merely that upon these facts he found the accused not guilty. In a prosecution under the Factories Acts, as that was, with somewhat complex relevant legislation, the appellate court’s difficulties may be imagined. The ground of decision is likely to be particularly important when evidence has been disallowed.45 There is provision for adjustment of the stated case, and this is to be found in the 1995 Act section 178. The parties have three weeks from the issue of the draft to propose adjustments or to state that they have no adjustments to propose. If the appellant fails to do either of these things they are deemed to have abandoned their appeal. If they are on bail, the convicting court has power to grant warrant for their apprehension and imprisonment.46 Where adjustments are proposed, the procedure is governed by the 1995 Act section 179. There is a hearing at which the parties may make representations to the trial judge. Thereafter, the stated case must be issued

43

1989 SCCR 597. 1944 JC 1. 45 Falconer v Brown (1893) 1 Adam 96. 46 1995 Act s. 177(5). 44

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in its final form, within two weeks of the date of the hearing. There must be appended to it a note of any adjustment which has been proposed and which the trial judge has rejected, together with a note of any evidence rejected by the trial judge which is alleged to support the adjustment concerned and a note of the trial judge’s reasons for rejecting that adjustment and evidence. There is also to be appended a note of the evidence on which the trial judge bases any finding in fact challenged as unsupported by the evidence. The appellant must then lodge the stated case with the clerk of the Sheriff Appeal Court. Leave to appeal Section 180 provides for consideration of leave to appeal – a ‘sift’ procedure – which is the same as that applicable under solemn procedure, under reference to the stated case as issued and the complaint, productions and ‘other proceedings’. Powers of court The powers of the Sheriff Appeal Court in dealing with appeals against conviction are dealt with section 183. The court may dispose of the appeal by affirming the verdict of the trial court (i.e. refusing the appeal), by setting aside the verdict of the trial court and either quashing the conviction or substituting an amended verdict of guilty or by setting aside the verdict of the trial court and granting authority to bring a new prosecution. In addition, the court may dispose of a stated case by remitting the cause to the inferior court with an opinion and a direction as to how to proceed. So, for example, in Aitchison v Rizza,47 where a sheriff had erred in finding that there was no case to answer, the Appeal Court remitted the case to him with a direction to proceed as accords, by which was meant that he should continue with the trial as if he had held that there was a case to answer. Appeals against sentence Under summary procedure, an appeal against sentence alone does not proceed by stated case. Instead, the 1995 Act sections 175(2)(b) and 186 provide for a Note of Appeal against sentence. The procedure is, for practical purposes, the same as that for appeals against sentence under solemn procedure. The form of the note is set out in the Criminal Procedure Rules Form 19.3-A and the note must, by section 186(2), be lodged with the clerk of the

47

1985 SCCR 297.

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court that passed sentence within one week of the passing of the sentence or of the order deferring sentence which is appealed against. The sentencer then prepares a report for the High Court. Section 187 makes provision as to leave to appeal which is equivalent to that for appeals against conviction. By section 189 of the 1995 Act, the court may dispose of an appeal against sentence by affirming the sentence or, if it thinks that, having regard to all the circumstances, a different sentence should have been passed, by quashing the sentence and passing another sentence.

Crown appeals Solemn procedure There are four situations in which the Lord Advocate can bring a matter before the Appeal Court under solemn procedure. These Crown rights of appeal have in the past been used quite very sparingly. They are outlined as follows. Appeals against decisions about sufficiency of evidence It will be recalled that there are two stages at which submissions can be made about sufficiency of evidence in a trial on indictment and that they can result in the acquittal of the accused on a charge or charges or a direction to the jury to amend the indictment so as to make it relate to a ‘related offence’ for which there is a sufficiency of evidence.48 Section 107A provides the Crown with appeals against such decisions. The prosecutor either intimates an intention to appeal at once or moves for a two-day adjournment (which must be granted) to consider whether to appeal. If possible, on an appeal against an acquittal, the appeal will be heard under an expedited procedure49 so that the trial can resume. If the Appeal Court decides that the decision was wrong in law, it quashes the acquittal and directs that the trial is to proceed.50 If the appeal is not expedited and the Appeal Court decides that the acquittal was wrong in law, the prosecutor can seek, and must be granted authority, for a new prosecution. If the appeal is against a direction and is not expedited, the trial court must desert the diet pro loco et tempore in relation to any offence to which the appeal relates (or in relation to the whole indictment if the Crown so moves) and the Appeal Court must grant authority for a new prosecution.

48

See pp. 000–000. 1995 Act s. 107D. 50 1995 Act s. 107D(6). 49

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An example of this procedure in operation is to be found in HM Advocate v Hutchison.51 Lord Advocate’s reference Section 123 of the 1995 Act permits the Lord Advocate to refer to the High Court a point of law which has arisen in relation to a charge (on indictment) of which the accused has been acquitted or convicted. A copy of the reference is to be sent by the Clerk of Justiciary to the accused and to their solicitor and the accused is entitled to be represented. However, in terms of subsection (5) the opinion on the point of law does not affect any acquittal at the trial. Lord Advocate’s appeal against disposal The Lord Advocate has a right of appeal against disposal under the 1995 Act section 108. Where a person has been convicted, the Lord Advocate may appeal against the sentence or other disposal if it appears to them that the disposal is unduly lenient or on a point of law. The expression ‘unduly lenient’ means that the sentence fell outside the range of sentences which the sentencing judge could reasonably have considered appropriate.52 It does not mean that the sentence is merely more lenient than the High Court would itself have selected.53 Summary procedure The procurator fiscal has a right, under section 175(3) of the 1995 Act to appeal to the Sheriff Appeal Court on a point of law against an acquittal in summary proceedings or against a sentence passed in such proceedings. The appeal against acquittal is by stated case and the procedure is that described above under reference to section 176. This right of appeal would be used where the Crown considers that, on the facts established, the sheriff has acquitted incorrectly as a result of misdirecting themselves in law. The Crown can also appeal where the sheriff has failed to comply with the requirements of the law in relation to the sentence imposed. Provision is made in the 1995 Act section 175(4) for the Crown to appeal against an unduly lenient disposal in the same way as under solemn procedure. Most summary appeals by the Crown relate to cases in which it has been held that there is no case to answer, since such a decision is a matter

51

2013 SCCR 479. HM Advocate v Bell 1995 SCCR 244. 53 HM Advocate v Gordon 1996 SCCR 274. 52

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of pure law which has resulted in an acquittal. In such cases, as Keane v Bathgate54 makes clear, the traditional approach to stated cases, described above, by which findings in fact are made, is inappropriate. As the High Court noted in that case, the decision in relation to a submission of no case to answer does not in itself require the sheriff to decide the facts. As will be recalled, the effect of Williamson v Wither55 is that the question for the court is whether there is no evidence which if accepted will entitle the court to proceed to conviction. Reflecting this, the Appeal Court said in Keane v Bathgate that ‘in setting out the case for an appeal where the [no case to answer] procedure has been successfully invoked the proper thing for the court to do is simply to set out the evidence which has been adduced by the prosecution and any inferences drawn therefrom for arriving at the decision’.

Bills of advocation and bills of suspension Bills of advocation and bills of suspension are remedies which are directed essentially to procedural errors. Although often regarded as mirror images of one another, they in fact have differing scope and are available at different stages. Advocation The bill of advocation is available to both prosecution and defence56 and in both solemn and summary proceedings. The prosecutor can use it even in relation to the High Court itself, where it sits as a court of first instance. It is also available at any stage of proceedings – for example, in Parracho v HM Advocate57 the Appeal Court said that it would have provided the appropriate remedy for the defence where the Crown persuaded a judge to desert a murder trial pro loco et tempore after the closure of the Crown case, on the basis that the advocate depute had forgotten to lead important evidence. There is, however, one important exception to that. In terms of section 191B of the 1995 Act, advocation is not available in relation to a decision about an objection to the competency or relevancy of a summary complaint. That is a matter for appeal under section 174(1A). Advocation is the calling up or removal of a cause from an inferior to a superior court but its sphere is limited to the correction of irregularities 54

1983 SLT 651. 1981 SCCR 216. 56 See Durant v Lockhart 1985 SCCR 72. 57 2010 SCCR 257. 55

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in the preliminary stages of a case.58 Although the judicial view in the late 1960s seems to have been that the bill of advocation was falling into disuse as a result of the introduction of the stated case, the remedy has since enjoyed something of a renaissance, with the Crown using it, for example, where a warrant has been wrongfully refused.59 It has been used by the defence where a sheriff continued a part-heard trial for eight days with the accused in custody even though the forty day time limit for commencing the trial had expired,60 where a sheriff adjourned a trial part- heard by another sheriff who had been taken seriously ill61 and where it was sought to challenge a sheriff’s decision to allow an amendment of the complaint so as to insert the accused’s correct name.62 In none of these cases was it said that the competency of the procedure was in doubt, though the outcomes cannot be said to be encouraging for defence use of the procedure. Suspension The classic definition of a bill of suspension is Lord Wheatley’s in McGregor v MacNeill63: ‘Suspension is a competent method of review, available in summary proceedings only64 when some step in the procedure has gone wrong or some factor has emerged which satisfies the court that a miscarriage of justice has taken place resulting in a failure to do justice to the accused.’

Suspension, then, is available only to the accused and, in terms of section 130 of the 1995 Act, only in summary cases. It is a process whereby a warrant, conviction or judgment issued by an inferior judge may be reviewed. It follows that such a warrant, conviction or judgment must exist and that suspension is incompetent before such a warrant, conviction or judgment actually exists. This was the issue in Durant v Lockhart65 in which an attempt was made to take a bill of suspension against a sheriff’s decision to adjourn a trial diet, but was refused as incompetent. This is not to say, however, that it is only available after the final determination of proceedings. It was

58

MacLeod v Levitt 1969 JC 16. McNeill, Complainer 1984 SLT 157. 60 Grugen v Jessop 1988 SCCR 182. 61 Platt v Lockhart 1988 SCCR 308. 62 Hoyers (UK) Ltd v Houston 1991 SCCR 919. 63 McGregor v MacNeill 1975 JC 57. 64 1995 Act s. 130 Act gives statutory form to this restriction. 65 1986 SCCR 23. 59

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used in Stuart v Crowe66 to attack search warrants obtained by the police and upon which the Crown intended to found at the forthcoming trial and, although the attack failed on its merits, the appropriateness of the procedure was not disputed. Procedure Bills of suspension and bills of advocation relating to summary procedure are dealt with in the Sheriff Appeal Court. Those relating to warrants are subject to the jurisdiction of the High Court67 as are bills of advocation arising out of solemn procedure. The procedure under bills of suspension and bills of advocation is very similar. The bill must be lodged with the clerk of the Sheriff Appeal Court (within three weeks of the decision complained of68) or at Justiciary Office and then placed before an appeal sheriff or a single judge of the High Court for an order for service. If that judge thinks that the bill discloses no substantial ground of appeal, they are entitled to remit the bill to a quorum of the court who may, if they agree with the single judge, refuse the bill then and there. Where, however, the single judge considers that the bill is not clearly without substance they will grant an order for service and the bill is then served upon the opponent. The clerk will also send a copy to the judge whose decision is being challenged. The opponent will then lodge answers and, as in civil pleadings, the effect of those answers will be to identify the areas of disagreement (if any) as to the facts. Lord Justice-General Emslie said in Neilands v Leslie69 that where there is a conflict between the bill and the answers, the court will usually accept the answers. In this regard it is appropriate to recall that, whilst the High Court is not bound to follow the Lord Advocate’s account of the facts of a matter, it does treat it with considerable respect, as appears from the judgment in Bennet v HM Advocate.70

The nobile officium In extraordinary and unforeseen circumstances, where there is no other avenue of appeal, application may be made (by either the defence or the Crown) to the nobile officium of the High Court, which is the power 66

1992 SCCR 181. McWilliam v Harvie 2016 SLT 648; Clyde and Co (Scotland) LLP v Richardson 2016 SLT 1200. 68 1995 Act s. 191A(2). 69 1973 SLT (Notes) 32. 70 1994 SCCR 902. 67

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that court retains to do what is just in circumstances for which the law makes no other provision.71 It is not available to avoid an express or clearly implied statutory intention,72 even where the court considers the statutory rule to be defective so as to require reconsideration by the legislature (as was the case in Ryan, Petitioner73). In practice it is unlikely to be granted so as to remedy a failure by an appellant to take the steps in procedure required by statute.74 In most cases, however, a more orthodox avenue of appeal will be available and it is with such avenues that this chapter is chiefly concerned. It may be noted that, occasionally, the High Court of Justiciary has been prepared to treat a petition to the nobile officium as if it was an appeal under the appropriate procedure, purely to avoid undue expense. This is, however, very much an indulgence and not to be counted on. It is more likely to happen where the petitioner is obviously entitled to the remedy sought. An example is to be found in Gilchrist, Petitioner75 in which the petition was treated as if it was the bail appeal that the petitioner should more properly have pursued.

Chapter overview • Appeals are competent against certain decisions at preliminary hearing or first diet: They require leave of the court of first instance. Leave must be sought immediately. A note of appeal must be lodged within seven days The note of appeal must specify the grounds of the appeal; the Appeal Court is resistant to allowing grounds not specified to be argued. • The test for appeals against conviction under solemn procedure is miscarriage of justice; it is not enough to identify an error if there was no miscarriage of justice. • Section 106 of the Criminal Procedure (Scotland) Act 1995 includes miscarriage of justice based on the existence and significance of evidence not heard at the original proceedings provided there is a reasonable explanation why it was not heard in the original proceedings. 71

Black, Petitioner 1991 SCCR 1. Anderson v HM Advocate 1974 SLT 239; McBride, Petitioner 2002 GWD 1–19. 73 2002 GWD 6–181. 74 McLeod, Petitioner 1975 SCCR Supp 93; Fenton, Petitioner 1981 SCCR 288. 75 1991 SCCR 699. 72

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• The Appeal Court has to be persuaded that the additional evidence is important and of such a kind and quality that it is likely that a reasonable jury, properly directed, would have found it of material assistance in its consideration of a critical issue at trial. • Section 106 also includes miscarriage of justice based on the jury having returned a verdict that no reasonable jury, properly directed, could have returned. On such a ground it is not open to the Appeal Court to quash the verdict merely because it would have reached a different view. • Procedure for an appeal against conviction in solemn proceedings is by note of appeal. • Written intimation of intention to appeal must be lodged within two weeks of final determination of the proceedings. • The note of appeal must specify the grounds of appeal and must be lodged within eight weeks of the lodging of the intimation of intention to appeal. • The Scottish Criminal Cases Review Commission may refer to the High Court any case they think fit. • Before an appeal under solemn procedure is heard, it must pass a ‘sift’ which considers whether there are arguable grounds. • If the appeal is successful, the Appeal Court may set aside the verdict of the trial court and quash the conviction, substitute an amended conviction or grant authority for a new prosecution. • The test in an appeal against sentence under solemn procedure is whether the sentence imposed was excessive. • Procedure is by note of appeal lodged within two weeks of the passing of sentence. • Sentence appeals are also subject to the sift procedure. • Under summary procedure, appeals against decisions in relation to preliminary pleas require leave of the court of first instance • The procedure is by note of appeal lodged within seven days. • Appeals against conviction under summary procedure are by stated case. • The application for a stated case, which must contain a full statement of all matters which the appellant desires to bring under review, must be lodged within one week. • The test is miscarriage of justice, as under solemn procedure. • The trial judge prepares a draft stated case which sets out findings in fact and narrates the evidence on the basis of which the decision was reached. • The draft stated case may be adjusted and the parties are entitled to propose adjustments. If they do, there is a hearing on those adjustments.

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• The stated case is then issued and considered by the Sheriff Appeal Court under a sift procedure. • If the appeal is successful the court may dispose of the appeal by affirming the verdict of the trial court, by setting aside the verdict of the trial court and either quashing the conviction or substituting an amended verdict of guilty or by setting aside the verdict of the trial court and granting authority to bring a new prosecution. In addition, the court may dispose of a stated case by remitting the cause to the inferior court with an opinion and a direction as to how to proceed. • Appeals against sentence under summary procedure proceed in the same way as under solemn procedure. • The Crown has an appeal, under section 107A, against decisions on submissions of no case to answer in trials under solemn procedure. • Under section 123 the Lord Advocate may refer any point of law to the Appeal Court. • Under section 108 the Lord Advocate may appeal any sentence on the ground that it is unduly lenient. • The procurator fiscal may appeal by the stated case procedure against acquittal. • Advocation is the calling up or removal of a cause from an inferior to a superior court but its sphere is limited to the correction of irregularities in the preliminary stages of a case. • Suspension is a competent method of review, available in summary proceedings only, when some step in the procedure has gone wrong or some factor has emerged which satisfies the court that a miscarriage of justice has taken place resulting in a failure to do justice to the accused. • A bill of advocation or bill of suspension must be lodged with the clerk of the Sheriff Appeal Court within three weeks of the decision complained of or at Justiciary Office and then placed before an appeal sheriff or a single judge of the High Court for an order for service. • The opponent lodges answers so as to identify the areas of disagreement as to the facts. • In extraordinary and unforeseen circumstances, where there is no other avenue of appeal, application may be made (by either the defence or the Crown) to the nobile officium of the High Court, which is the power that court retains to do what is just in circumstances for which the law makes no other provision.

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Index

Abduction, 249 Absconding, 71–2, 82–3 Absence of criminal responsibility, 115–16 Absolute discharge, 247 Accused absconding, 71–2, 82–3 character evidence, 183–90 conducting own defence, limitations on, 133, 143 declarations, 66 failure to appear at trial, 82–3, 144, 150, 219–20 identification, 6, 147 previous convictions, 235–8, 247 statements by, as hearsay evidence, 190–1 Acquittal, 6 absence of criminal responsibility, 119 appeals against acquittal on point of law, 284 grounds for, 120 not proven verdicts, 232–3 setting aside, 122 Additional evidence, 229 appeals, 269–71, 279 Adjournments absolute right to, 149 applications for, 153 intermediate diets, 152–3 judicial discretion, 153 jury selection, and, 220–1

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limitations on, 148–9 not guilty pleas, 148 part-heard trials, 223 refusal, 154 sentencing, for, 236, 240 summary procedure, 145–6, 148–9, 152–3, 223 trial, of, 153 Admissibility of evidence appeals, 179 business documents, 174 certificates of evidence, 173, 195–6 character evidence see character evidence character of complainer, 182–3 character of the accused, 183–90 collateral material, 180–2 confessions, 9, 39 confidentiality, and, 180 copy documents, 109–10 counter-notices, 176 de recenti statements, 200–1 ECHR, breach of, 179–80 erroneous disclosure, 184 evidence of crime not charged, 176, 181–2 hearsay evidence, 164, 167 incrimination, 179 investigative irregularity, and, 179–80 irregularly obtained evidence, 29–30, 179–80 irrelevant evidence, 170–1

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Admissibility of evidence (cont.) objections, 127, 135–6, 174–9 police interviews, 45–6, 121 previous convictions, 184–5 principles, 7, 174–5 prior inconsistent statements, 197, 229–30 prior sexual conduct of complainer, 168–71 relevance, 180–2 routine evidence, 173, 203 scientific and other reports, 195–6 sexual offences, 179 solemn procedure, 179 trial within a trial, 177–9 Admonition, 247 Adversarial system, 21, 86, 115 Advocate deputes, 22 Advocate’s Gateway, The, 157 Advocation, 151, 285–7 Aides memoire, 224 Alcohol treatment requirement, 253, 255 Alibi, 94, 96, 115–16, 188, 270 Alison, A.J., 86, 96, 182, 214 Alternative verdicts, 226–7 Anonymity orders, 124, 127–8, 151, 152 Antisocial behaviour orders, 256–7 Appeals additional evidence, 269–71, 279 adjustment to stated case, 281–2 appeal courts, 266 appeals against acquittal on point of law, 284 appeals against conviction, 268–82 appeals against sentence, 277, 282–3 appeals against unduly lenient disposal, 284 appeals from preliminary hearings and first diets, 266–7 appeals relating to preliminary pleas, 278

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bills of advocation, 151, 285–7 bills of suspension, 286–7 court powers, 275–7, 282–3, 287–8 Crown appeals, 284–5 defective representation, 269 defence appeals, 266–83 grounds of appeal specification, 267 leave to appeal, 275, 282 leave to appeal ex proprio motu, 278 Lord Advocate’s appeal against disposal, 284 Lord Advocate’s Reference, 284 miscarriages of justice, 268–73, 279 new grounds, 273–4 nobile officium, 287–8 note of appeal, 267, 273–4, 282–3 objections to inadmissible evidence, 179 overview, 1–2 Practice Notes, 267, 273–4 preliminary hearings and first diets, appeals from, 138–9, 266–7 preliminary pleas, relating to, 278 prescribed form, 267, 273–4, 279–80, 282–3 rights of appeal, 266 Scottish Criminal Cases Review Commission, reference by, 274–5 sift procedure, 275, 277 solemn procedure, 266–77, 283–4 submission of no case to answer, 285 sufficiency of evidence, 283–4 summary procedure, 266, 277–83, 277–85 time limits, 267, 273, 278 verdict not possible from reasonable jury, 271–3 Appearance appearance from custody, 145 appearance on petition, 66, 81–2 apprehension, warrants for, 144–5 citation to appear, 143 failure of accused to appear at trial, 82–3, 144, 150, 219–20

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Index 293

intermediate diets, 149 release by police on undertaking to appear, 144 summary procedure, 143–5, 150 time limits, 143 witnesses, before giving evidence, 225–6 Apprehension, warrants for, 144–5 Arrest action following, 33–7 arrested person brought before court, 36–7 conditional release, 35–6 detention following, 35–6 ECHR, and, 36–7 information rights, 34–5 interests of justice test, 33 investigative liberation conditions, 37–8 legal representation, 33 limitations, 33 minors, of, 33 official accusation, 35 particular circumstances, under, 31 reasonable grounds, 31–3 record keeping, 34–5 rights of arrested persons, 33–5 statutory powers, 31–3 under warrant, 30–1 without warrant, 31–2 Attempted crimes, 226 Automatism, 115, 152

failure of accused to appear, 69, 147, 150, 219 information, 70–1, 74–5 money bail, 73–4 offences committed while on bail, 72, 98–9, 250 previous convictions, 72 public interest, 70 refusal, 69–72 reviews, 75–6 sentencing, 250 sexual offences, 72–3 solemn procedure, 71–2 summary procedure, 69–70, 147, 150 time limits, 69–70, 75 BAILII, 4 Best evidence, 108–9, 192, 224 Bill for Criminal Letters, 21 Bills of advocation, 151, 285–7 Bills of suspension, 286–7 Blood samples, 51–3, 104–5 Body samples, 51–4 destruction, 51 invasive personal searches, 52–4 Burden of proof admissibility of evidence, 4, 6 incrimination, 6 overview, 4–5, 115 presumption of innocence, 5 shifting to accused, 6 sufficiency of evidence, 4–5, 7–9 undue delay, 144–5 Business documents, 110–12, 174

Bail appeals after conviction, 76–7 applications, 69 breach, 73, 98–9 conditions, 72–4 considerations, 70–2 curfew requirement, 73 domicile of citation, 74 drug offences, 71 ECHR, and, 73

Caledonian Men’s Programme, 254 Capital punishment, 7 Carloway Review (2011), 31, 37, 48 Caution for good behaviour, 261 Cautions, 41–2, 46–7 CCTV, 176, 216 Certificates of evidence admissibility, 195–6 challenges to, 173 service, 173

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Character evidence accused, of, 183–90 co-accused, against, 188 complainer, of, 182–3 deceased victim, reputation of, 187 exceptions, 185–90 imputations on character, 186–8 limitations and prohibitions, 182–3 previous convictions, 184–5 prior sexual conduct of complainer, 156, 168–71, 188 sexual offences, 179 victim, of, 182–3 violent acts, regarding, 183 witnesses, of, 182–3, 186–8 Charges aggravated offences, 98–101 amendment, 102–5 challenge to relevancy, 90 challenge to specification, 90 dockets, 101–2 domestic abuse, 99–100 drafting, 90, 94–8, 141–2 ECHR, and, 93–4 mode of offence, 97–8 no case to answer submissions, 226–8 offences committed while on bail, 96 place of offence, 96 prejudice, and, 100–1 previous convictions, 102 purpose of, 142 quantity of offence, 95–6 questioning after, 48–9 relevancy, 90, 92–4 separation or conjunction, 124–5 sexual offences, 95, 98–9 solemn procedure, 142 specification, 94–8 statutory offences, 98 summary procedure, 142 time of offence, 96–7

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Child witnesses closed proceedings, 158 commencement of proceedings, age at, 160 competence, 180 court practices, 158 discretionary powers, 158–9 evidence in form of prior statement, 167–8 ground rules hearings, 165–6 hearsay evidence, admissibility of, 164, 167 meaning, 159 protection of, 158 quality of evidence, risk to, 162–3 reliability, 156 risk of harm to, 163 screens, 166 special measures for, 160, 163–8 supporters, 166–7 taking of evidence by commissioner, 164–6 taking of evidence by TV link, 159, 166 Children arrest, 33 child witnesses see child witnesses compulsory supervision, 151 indecent images of, 239 meaning, 151 nonage, 118 right to legal advice, 43 sentencing, 246, 251–2 Circumstantial evidence corroboration by, 207–9 meaning, 8 sufficiency of evidence, 207 Citation to appear, 143 Closed proceedings, 158 Co-accused character evidence against, 188 incrimination, 6, 115 statements from, as hearsay, 200 Code of Professional Conduct, 91

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Index 295

Coercion, 115, 152 Committal, 66–8 Common law dockets, 182 Community disposals, 252–8 alcohol treatment requirement, 253, 255 antisocial behaviour orders, 256–7 community payback orders, 240, 253–6 compensation requirement, 253–4 conduct requirement, 253, 255 drug treatment and testing orders, 240, 256 drug treatment requirement, 253, 255 mental health treatment requirement, 253–5 non-harassment orders, 257–8 offender supervision requirement, 253–4 programme requirement, 253–4 residence requirement, 253–4 restriction of liberty orders, 252–3 unpaid work/ activity requirement, 253–4 Community payback orders, 240, 253–6 Compensation offers, 25–6 Compensation orders, 261 Compensation requirement, 253–4 Competence challenges to, 117–18, 143 witnesses, of, 180 Complainer, the, 2 Complaint amendment, 142 citation, 142 copy, 144 errors, 143 form of, 141–2 previous convictions, and, 141–2 relevancy, 142 reply forms, 142 signature, 141 solemn procedure, 142

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specific offences, 143 summary procedure, 142 validity, 142 Compulsion orders, 115 Conditional offers, 25 Conduct requirement, 253, 255 Confessions admissibility of, 9, 39 corroboration, 213–15 special knowledge, 214–15 Confidentiality Crown precognition, 85 solicitors, 180 Confiscation orders, 261–3 allegations, acceptance of, 262 conditions for, 261 criminal conduct, meaning, 262–3 criminal lifestyle, 261–2 enforcement, 263 non-payment, penalties for, 263 recoverable amount, 263 statement of information, 261–2 tainted gifts, 263 time to pay, 263 Consecutive sentences, 252 Consent to sexual offences, as defence, 115, 152 Contempt of court, 98, 194 Corporate bodies, 92, 259–60 Corroboration CCTV evidence, 216 circumstantial evidence, 207–9 confessions, of, 213–15 fingerprints or DNA, 215 Moorov doctrine, 210–13 special knowledge, 214–15 sufficiency of evidence, 8–9, 207–15 Coulsfield Report (2007), 86, 88, 211–12 Courts overview, 1–2 Covert human intelligence sources, 61–2

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Covid-19 pandemic fixed penalties, 25 hearsay evidence, admissibility of, 193 intermediate diets, and, 149 jury procedures, 221 sentencing during, 238 summary procedures, 220 Criminal conduct, 262–3 Criminal lifestyle, 261–2 Criminal records, see previous convictions Criminal responsibility, absence of, 115 Cross-examination guidance on, 157 leading questions, 225 necessity and desirability, 156 strategies, 225–6 via TV link, 166 Crown appeals, 284–5 appeals against acquittal on point of law, 284 appeals against decisions about sufficiency of evidence, 283–4 appeals against unduly lenient disposal, 284 Lord Advocate’s appeal against disposal, 284 Lord Advocate’s Reference, 284 solemn procedure, 283–4 submission of no case to answer, 285 summary procedure, 284–5 Crown Counsel, 22 Crown narrative, 238 Crown preparation service of indictment, 83 time limits, 80–3 Curfew arrangements, 238 Curfew requirement, 73 Custodial sentences, 240, 248–52 consecutive sentences, 252 determinate sentences, 249–52

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extended sentences, 249–50 life imprisonment and orders for lifelong restriction, 248–9 maximum sentences, 249 supervised release orders, 250 young offenders, 251–2 De recenti statements, 200–1 Death juror, of, 221–2 witnesses, of, 194 Death penalty, 7 Declarations of accused, 66 Defence defence statements, 88, 113, 115 human rights, and, 113–14 notice of special defences, witnesses and productions, 115–16 preliminary hearing, actions before, 113–16 special defences, 115–16 Defence appeals adjustment to stated case, 281–2 appeals against conviction, 268–82 appeals against sentence, 277, 282–3 appeals from preliminary hearings and first diets, 266–7 appeals relating to preliminary pleas, 278 court powers, 275–7, 282–3 grounds of appeal specification, 267 leave to appeal, 275, 282 leave to appeal ex proprio motu, 278 miscarriage of justice, 268–73, 279 new grounds, 273–4 note of appeal, 267, 273–4, 282–3 prescribed form, 267, 273–4, 279–80, 282–3 Scottish Criminal Cases Review Commission, reference by, 274–5 sift procedure, 275, 277 solemn procedure, 266–77 summary procedure, 277–83 time limits, 267, 273, 278

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Index 297

Defence statements, 88, 113, 115 Deferred sentences, 246–7 Delay arrest, of, 33 oppressive delay, 123–4 preliminary pleas, 123–4 prevention of, 150–1 right to fair trial, and, 36, 113–14, 123–4 solemn procedure, 123, 150–1 summary procedure, 144–5, 150–1 undue delay, burden of proof, 145 Desertion pro loco et tempore, 27, 91, 222, 229, 285 Desertion simpliciter, 27 Detention arrest, and, 35–6 arrested person brought before court, 36–7 compulsion orders, 115 conditional release, 36–7 custody reviews, 35–6 extension of, 36 investigative liberation conditions, 37–8 necessity and proportionality, 38 powers, 35–6 questioning, and, 38–47 reasonable grounds for suspicion, 35–6, 38 right to liberty and security, 36 solemn procedure, 150 time limits, 35–6, 150–1 Determinate sentences, 249–52 Dickson, W.G., 180 Diminished responsibility, 115 Direct evidence, meaning, 8 Directed surveillance, 61–2 Disclosure Code of Practice, 88 defence statements, 88, 113, 115 erroneous disclosure, 184 investigating agency obligations, 88 prosecution review of, 113

7265_Brown.indd 297

Prosecutor’s duty, 86–7 public interest, risk or harm to, 87, 89 rulings on, 88–9 summary procedure, 141–2, 151 Disqualification from driving, 121, 182, 185–6, 235 Distress accused causing distress to witnesses, 36–7, 73 non-harassment orders, 257–8 quality of evidence, risk to, 162–3 sexual offences, and, 208–9 vulnerable witnesses, 36–7, 158–9 Diversion, 24 DNA, 51–2, 204, 215–16 Dockets, 101–2, 182, 223 Documents admissibility of evidence, 174 admissions as to, 127 best evidence, 108–9, 192, 224 business documents, 110–12, 174 copy documents, 109–10 meaning, 200 productions, 109–12 Domestic abuse accused cannot conduct own defence, 133 aggravated offence, as, 99–100 bail, refusal of, 72 deemed vulnerable witnesses, 160–1 non-harassment orders, 258 summary proceedings, 143, 147 Double jeopardy, 121–3 Drawings, 110 Driving offences blood samples, 104–5 driving whilst disqualified, 121, 182, 185–6, 235 forfeiture, and, 239 questioning, 47 sufficiency of evidence, 9 time limits, 144

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298 Criminal Evidence and Procedure: An Introduction

Drug treatment and testing orders, 240, 256 Drug treatment requirement, 253, 255 Drugs and drug offences bail, refusal of, 72 courts for, 256 routine evidence, 203 search warrants, 50, 55 Duty to try to agree, 136, 173 Electronic tagging, 252 Embezzlement, 19 European Convention on Human Rights admissibility of evidence, 179–80 arrest, 36–7 bail, 73 charges, 93–4 complainer, protection of, 188–90 defence rights, 113–14 investigative procedures, 38, 54, 60–3 public hearings, 158 right to fair trial, 5, 36, 43, 47, 62, 113–14, 122–3, 123–5, 158, 188–90 right to legal advice, 43–5 right to liberty and security, 36 right to respect for private and family life, 38, 54, 56, 60–1 right to silence, 6, 47, 62 searches, 56–7 source of law, 4 surveillance, 29, 61–2 time limits, 124 witnesses, protection of, 158, 188–9 European Court of Human Rights, 4 Evidence additional evidence, 229, 269–71, 279 admissibility see admissibility of evidence aides memoire, 224

7265_Brown.indd 298

best evidence, 108–9, 192, 224 burden of proof, 4–8 CCTV, 216 certificates of evidence, 173 character evidence see character evidence circumstantial evidence see circumstantial evidence copy documents, 109–10 corroboration, 8–9, 207–16 credibility and reliability, 4–5, 9–10, 34, 169 direct evidence, 8 disclosure see disclosure DNA, 51–2, 204, 215–16 dockets, use of, 99 duty to agree matters not in dispute, 173 fingerprints, 104, 215 further evidence see further evidence handwriting, 215 hearsay evidence see hearsay evidence irrelevant evidence, 170–1 Law Commission Report, 109–12 objections to, 127, 135–6, 174–9 principles, 4–10 productions, 173–4 replication, in, 229–30 risk to quality of, 162–3 routine evidence, 173, 203 special capacities, 173 standard of proof, 10–11 sufficiency see sufficiency of evidence uncontroversial evidence, statements of, 137–8 vulnerable witnesses, from, 162–3 Expert witness admissibility, 205–6 foreign law, 202 functions of, 204–5 hearsay evidence, and, 205–6 opinions, factual basis for, 203–4 overview, 202–6 Extended sentences, 249–50

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Index 299

Facts in issue, 8, 169, 181 Fair trial, right to, 5, 36, 43, 47, 62, 113–14, 122–3, 123–5, 158, 188–90 Financial penalties, 258–63 caution for good behaviour, 261 compensation orders, 261 confiscation orders, 261–3 fines, 258–60 victim surcharges, 260 Fines, 258–60 court powers, 258–9 maximum fines, 258–9 non-payment, penalties for, 260 offender’s means to pay, 259 time to pay, 260 Fingerprints, 51, 53, 104, 215 First diets, see preliminary hearings Fixed penalties, 25 Floating diets, 139 Foreign law, expert witnesses, 202 Foreign nationals, 148–9 Forfeiture, 238–9 Forgery, 19 Fraud, 14–16, 127, 191 Glue sniffing, 93 Gordon, G.H., 117, 235 Graphs, 110 Ground rules hearings, 165–6 Guardianship orders, 120 Guilty pleas procedure, 89 recording, 134–5 reply forms, 142 service of indictment, before, 90–1 summary procedure, 148 withdrawal, 89, 148 Guilty verdicts, 232–3 Handwriting, 205, 215 Harassment meaning, 257 non-harassment orders, 257–8

7265_Brown.indd 299

Hate crimes, 100–1 Hearsay evidence admissibility of, 164, 167, 190–200 chain of evidence, 198–9 credibility, supporting, 200–1 credibility, undermining, 201–2 de recenti statements, 200–1 double hearsay, 193 expert/ skilled witnesses, 205–6 fraud cases, in, 191 judicial discretion, 195 law reform, 193 meaning, 190 objections, 192 opinion evidence, 202–6 precognitions, 200 previous statements, 196–200 primary hearsay, 190–1 refusal to give evidence, 194–5 res gestae, 190–1 scientific reports, 195–6 secondary hearsay, 190–2 statements by co-accused, 200 statements by the accused, 190–1 statutory exceptions, 192–7 unavailability of statement maker, 194 use of statement to prove a fact, 197–200 High Court of Justiciary, 1 appeal court, as, 1, 266 jurisdiction, 13–14, 18 Lord Advocate’s Reference to, 284 nobile officium, 287–8 Home detention curfew arrangements, 238 Homicide jurisdiction, 17–18 Hospital, compulsion orders, 119–20, 248 Identification of accused, 6, 147 Identification procedures/ parades, 62–3, 90, 198, 216

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300 Criminal Evidence and Procedure: An Introduction

Incrimination, 6, 115–16, 152, 179 Indictable offences, jurisdiction, 13, 18–19 Indictments appropriate court, 90–1 challenges to competency or relevancy, 117–18 charges see charges content, 90–1 copies, 221 defence actions after, 113–16 desertion pro loco et tempore, 27, 91, 222, 229, 285 desertion simpliciter, 27 guilty plea before service of, 90–1 jury selection, 220–2 place of service, 90 productions, 105–12 reading to jury, 221 remission to assize, 221 section 76 letters, 90–1 separation or conjunction of charges, 124–5 service, 81, 83, 90–2, 142–4 time limits, 81 validity of citation, 83 witnesses, list of, 91, 105 Information rights, 34–5 Innocence, presumption of, 5, 222 Insanity, 81–2, 116, 121, 194 Intermediate diets adjournment, 152–3 appearance, 149 effectiveness, 149 purpose, 151 special defences, 151–2 summary procedure, 149, 151–4 Intrusive surveillance, 62 Investigation admissibility of evidence, 179–80 arrest see arrest disclosure of information, 23–4 identification procedures, 62–3

7265_Brown.indd 300

investigative irregularities, 179–80 investigative liberation, 37–8 law reform, 37 overview, 29–30 police obligations, 23–4 police powers, generally, 30 procedural irregularity, implications of, 29–30 procurators fiscals’ powers, 22–3 questioning see questioning regulation of powers, 60–2 right to respect for private and family life, 56, 60–1 searches see searches surveillance, 29, 61–2 JP courts jurisdiction, 14, 19 overview, 2 Juries Covid-19 pandemic, procedures during, 221 death or incapacity of juror, 221–2 direction of, 231–2 excusals, 220 oath, 221 objection to admissibility of evidence, and, 177 selection, 220–2 speeches to, 222 substitution of jurors, 221 written directions for, 222–3 Jurisdiction challenges to competency or relevancy, 117 cross-border crimes, 14–16 Crown servants, crimes committed abroad by, 17–18 extraterritorial jurisdiction, 17–18 fraud, 14–16 generally, 13–14 High Court, 13–14, 18 homicide, 17–18

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Index 301

JP courts, 14, 19 multiple court districts, crimes in, 16–17 nationality and residence, 17–18 possession of property stolen abroad, 18 ratione materiae, 18 Scotland, territory of, 13–17 sexual offences committed abroad, 17–18 sheriff courts, 14, 16–19 territorial jurisdiction, 13–17 Justice of the peace warrants, grant of, 55 Law reports, 3–4 Legal advice, right to, 43–5 Legal representation arrested persons, for, 33 conducting own defence, limitations on, 133, 141–2 miscarriages of justice, and, 269 objection to admissibility of evidence, 176–7 unfitness for trial, 120–1 Liberty and security, right to liberty, 36 Life imprisonment, 248–9 Live TV link, hearings via, 159, 163, 165–6 Locus of crime, 10, 13–14, 96, 103 Lord Advocate appeals, 284 Reference to, 284 role, 2, 21–2 MacDonald, J.H.A., 14 Machphail, I.D., 183 Maps, 110 Maximum sentences, 249 Mental disorders compulsion orders, 115 guardianship orders, 120 quality of evidence, risk to, 162–3 right to legal advice, and, 43

7265_Brown.indd 301

unfitness for trial, 118–21 see also insanity Mental health treatment requirement, 253–5 Miscarriages of justice, 268–73 additional evidence, 269–71, 279 defective representation, 269 test for, 268–9, 279 verdict not possible from reasonable jury, 271–3 Misconduct, meaning, 257–8 Mistakes complaint, in, 143 erroneous disclosure, 184 miscarriages of justice, 268, 276–8 procedural errors, excusal, 11–12 witness reliability, and, 9 Mitigation, in sentencing, 236 Money laundering, 56, 262 Moorov doctrine, 57, 157, 210–13, 252 Mora, 123–4 Motion for sentencing, 233 Murder, 17–18, 133 No case to answer, 226–8 Crown appeals, 285 submissions, 226–8 sufficiency of evidence, 227–8 No punishment without law principle, 93–4 Nobile officium, 287–8 Non-harassment orders, 257–8 Nonage, 118 Not guilty pleas adjournment for trial, 148–9 bail, and, 150 intermediate diets, 149 summary procedure, 148–9 Not proven verdicts, 232–3 Note of appeal, 267, 273–4, 282–3 Oath juries, 221 precognition on, 85–6, 90, 200, 202

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302 Criminal Evidence and Procedure: An Introduction

Objections admissibility of evidence, 127, 135–6, 174–9 appeals, 179 trial within a trial, 177–9 Offender supervision requirement, 253–4 Oppression, 123, 154 Orders for lifelong restriction (OLR), 248–9 Pannel, the, 2, 221 Parties, 2 Pattenden, R., 203 Perishable goods, 106–8 Petitions appearance on petition, 66, 81–2 committal for further examination, 66–8 committal for trial, 66–7 content, 66 judicial examination, 66 precognition on authority of petition warrant, 83–4 refusal of motion to committal, 67 statutory basis, 65 time limits from appearance on, 81–2 Photographs, 110 Place of offence, charge specification, 96 Plans, 110 Plea in mitigation, 236, 241, 244 Pleas in bar of trial double jeopardy, 121–3 insanity, 121 mora, 123–4 nonage, 118 preliminary pleas, 134 res judicata, 121 unfitness for trial, 118–21 Police arrest see arrest investigatory obligations, 23–4

7265_Brown.indd 302

investigatory powers, 30 notes, use of, 34–5, 224 police interviews, admissibility of, 45–6 Procurators fiscal, relationship with, 23–4 questioning see questioning searches see searches Practice notes, 3 Pre-trial procedures charges see charges defence actions, 113–16 disclosure see disclosure extensions, 83–4 guilty plea, before service of indictment, 90–1 identification parades, 88 importance of, 79–80 indictments, 81, 83, 90–6 non-compliance, consequences of, 80–1 precognition, 84–6, 89–90 service of indictments, 81, 83, 91–2 time limits, 80–3 witnesses, list of, 105 written record, 129–30 Precognition admissibility of, 200 authority of petition warrant, on, 83–4 Crown precognition, 85 defence precognition, 89–90 oath, on, 85–6, 90, 200, 202 Prejudice, aggravated offences, 100–1 Preliminary hearings accused conducting own defence, 133 admissibility of evidence, objections to, 127, 135–6 agreement of facts, 136–7 appeals, leave for, 138–9 defence statements before, 88, 113, 115 fixing the trial, 139

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Index 303

High Court procedures, 134, 139 objective, 79 preliminary issues, at, 124–9, 135 preliminary pleas, 117–24, 134 recording the plea, 134–5 sheriff court procedures, 133, 139 state of preparation, 136 statements of uncontroversial evidence, 137–8 time limits, 81–2 witnesses, calling, 136 Preliminary issues, 124–9 admissibility of evidence, objections to, 127, 135–6 admissions as to documents, 127 notice of, 116–17 overview, 124 preliminary hearings, at, 135 preliminary objections, specified provisions, 125–6 right to fair trial, and, 124 separation or conjunction of charges, 124–5 separation or conjunction of trials, 124–5 special capacities, 126–7, 146–7 summary procedure, 145–7 time limits, 117 witness anonymity orders, 127–8 written record, 129–30 Preliminary pleas challenges to competency and relevancy, 117–18, 146 challenges to validity of citation, 118 delay, 123–4 double jeopardy, 121–3 nonage, 118 notice of, 117–18 pleas in bar of trial, 118–21 preliminary hearings, at, 134 time limits, 117 unfitness for trial, 118–21 Presumption of innocence, 5, 222

7265_Brown.indd 303

Previous convictions admissibility of evidence, 184–5 bail, 72 charges, 99 disclosure, 184 notice of, 112–13 release on licence, 237–8 sentencing, 235–7, 235–8, 247 summary procedure, 141–2, 184 Prison sentences, see custodial sentences Private and family life, right to respect for, 38, 54, 56, 60–1 Privy Council, 4 Proceeds of crime confiscation orders, 261–3 production orders, 56 Procurators fiscal police and investigators, relationship with, 23–4 prosecution role, 21–2, 24 Productions blood samples, 108–9 body samples, 51–4 business documents, 110–12, 174 copy documents, 109–10 defence right to examine, 106 documents, 109–12 evidence, qualification as, 173–4 failure to produce, implications of, 106–8 fingerprints, 108 inadmissibility, 106 labelled productions, 105–9 listed in indictments, 105–6 perishable goods, 106–8 practicality, 106–7 previous convictions, notice of, 112–13 solemn procedure, 142 summary procedure, 142 Programme requirement, 253–4

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304 Criminal Evidence and Procedure: An Introduction

Proof burden of proof, 4–8, 115 overview, 4–5 self-defence, 115 special defences, 115 standard of proof, 10–11 Proportionality, 38, 54 Prosecution adversarial system, 21, 86, 115 alternatives to, 24–6 choice of procedure, 26 corporate bodies, of, 92, 259–60 decision to prosecute, 24 human rights, compatibility with, 113–14 individual claims, 21 Lord Advocate, 2, 21–2 overview, 21 police and investigator obligations, 22–3 procurators fiscal, 21–2, 24 prosecutors, 2, 21–4, 26–8 solemn procedures see solemn procedures summary proceedings see summary proceedings Public authorities, unlawful actions by, 113–14 Public interest, 70, 87, 89 Questioning admissibility of police interviews, 45–6, 121 admissibility of reply to different charge, 47 cautions, 41, 45–6 charge, after, 48–9 charge, before, 38–47 confessions, 39 driving offences, 47 fairness test, 39–42 hearsay evidence, admissibility, 192–3 initial enquiries, 38–9

7265_Brown.indd 304

judicial authorisation, 48–9 police station, at, 41–5 right to legal advice, 43–5 right to silence, 47 rights of suspect, 43–5 statutory requirement to answer, 47 suspicion, and, 39–42 tape and video recording of police interviews, 46–7 transcripts, 46–7 warning suspects, 46 Rape charges/ offence of, 95 closed proceedings, 158 dockets, use of, 102 jurisdiction, 17–18, 19 meaning, 158 Reasonable doubt, 10–11 Recklessness, 268–9 Release on licence, 237–8, 249–50 Relevancy challenges to, 117–18, 146 charges, of, 90, 92–4 complaint, of, 142 evidence, of, 170–1, 180–2 Res gestae, 190–1 Res judicata, 121 Reset, 16, 19, 226 Residence requirement, 253–4 Restriction of liberty orders, 252–3 Risk assessment reports, 248 Routine evidence, 173, 203 Scientific evidence, 195–6 Scotland, territory of, 13–17 Scottish Criminal Cases Review Commission, 274–5 Scottish Law Commission, 2, 109–12, 193 Screens, 166 Searches body samples, 51–2 common law warrants, 56–7

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Index 305

defective warrants, 57–8 invasive searches, 52–4 lawfulness, 49–50, 55 meaning, 49–50, 55–6 Moorov doctrine, 57 necessity and proportionality, 54 personal searches, 49–54 production orders, 56 property searches, 54–60 random searches, 59 reasonable suspicion, 49–51, 55 right to respect for private and family life, and, 54, 56, 60–1 statutory warrants, 55–6 urgency, 50, 59–60 warrants, 49–51, 55–60 Section 76 letters, 90–1, 242–3 Section 16 orders, 237–8, 251 Self-defence, 116 Sentencing absolute discharge, 247 adjournment for inquiry, 236, 240 admonition, 247 aggregation, 250 alcohol treatment requirement, 253, 255 antisocial behaviour orders, 256–7 appeals against sentence, 277, 282–3 backdating, 251 bail conditions, breach of, 250 caution for good behaviour, 261 community disposals, 252–8 community payback orders, 240, 253–6 compensation orders, 261 compensation requirement, 253–4 concurrent sentences, 238, 252 conditional offers, 25 conduct requirement, 253, 255 confiscation orders, 261–3 consecutive sentences, 252 Covid-19 pandemic, during, 238 Crown narrative, 238

7265_Brown.indd 305

custodial sentences, 240, 248–52 deferred sentences, 246–7 determinate sentences, 249–52 discounting, 135, 241–4 disqualification, 235 drug treatment and testing orders, 240, 256 drug treatment requirement, 253, 255 electronic tagging, 252 extended sentences, 249–50 financial penalties, 258–63 fines, 258–60 fixed penalties, 25 forfeiture, 238–9 guidelines, 244–6 guilty plea discounts, 135, 241–4 guilty pleas, and, 235–6 home detention curfew arrangements, 238 judicial discretion, 239, 242–3, 249 life imprisonment and orders for lifelong restriction, 248–9 maximum sentences, 249 mental health treatment requirement, 253–5 mitigation, 236, 241 motion for, 233, 236 non-harassment orders, 257–8 notification, 239–40 offender supervision requirement, 253–4 previous convictions, 235–8, 247 procedure, 235–44 programme requirement, 253–4 prosecutor’s discretion, 235–6 purpose, 245, 250 release on licence, 237–8, 249–50 residence requirement, 253–4 restriction of liberty orders, 252–3 risk assessment reports, 248 section 76 letters, 90–1, 242–3 section 16 orders, 237–8, 251 sexual offences, 239, 249

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306 Criminal Evidence and Procedure: An Introduction

Sentencing (cont.) short sentences, presumption against, 251 solemn procedure, 238, 244, 247, 258 statutory sentences, 235 structured deferred sentences, 247 summary procedure, 236, 244, 247, 249, 258 supervised release orders, 250 terrorism offences, 249 time spent in custody on remand, 251 unexpired portion of sentence, 237–8 unpaid work/ activity requirement, 253–4 victim surcharges, 260 violence offences, 249 young offenders, 246, 251–2 Service certificates of evidence, 173 domicile or residence, 91–2, 143–4 indictments, 81, 83, 91–2, 142–4 place of service, 91–2, 143–4 Sex offenders register, 239 Sexual offences accused cannot conduct own defence, 133 bail, refusal of, 72 charges, 95, 100–1 closed proceedings, 158 committed abroad, 17–18 consent to, 115, 152 deemed vulnerable witnesses, 160–1 meaning, 161 prior sexual conduct of complainer, 156, 168–71, 188 sentencing, 239 sufficiency of evidence, 207 summary proceedings, 143 Sheriff courts, 1, 14 appeals, 1, 266, 282–3 jurisdiction, 14, 16–17

7265_Brown.indd 306

Signatures, 57–8, 85, 141 Silence, right of, 5–6, 47, 62 Skilled witnesses, see expert witness Social work reports, 236–67, 240, 247 Solemn procedure admissibility of evidence, 179, 184 appeals against conviction, 268–77 appeals against decisions about sufficiency of evidence, 283–4 appeals against sentence, 277 appeals from preliminary hearings and first diets, 266–7 bail, 71–2 burden of proof, 4 charges, 94–5, 99, 142 closed proceedings, 158 court powers, 276–7 Crown appeals, 283–4 deemed vulnerable witnesses, 160–1, 164 defence appeals, 266–77 delay, 123, 150–1 detention, 150 disclosure, 85–8 evidence, 173–5 failure of accused to appear at trial, 219 leave to appeal, 275 Lord Advocate’s appeal against disposal, 284 Lord Advocate’s Reference, 284 meaning, 1 miscarriages of justice, 268–73 new grounds for appeal, 273–4 note of appeal, 273–4 objections to evidence, 175 petitions see petitions pre-trial procedures see pre-trial procedures precognition, 84–6 preliminary hearing see preliminary hearing prescribed form, appeals, 267, 273–4

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Index 307

previous convictions, 184 prior sexual conduct of complainer, 168–71 productions, 142, 173–4 Scottish Criminal Cases Review Commission, reference by, 274–5 sentencing, 235 sheriff court jurisdiction, 18–19 speeches, 231 time limits, 80–3, 273 trial see trial witnesses, protection of, 158, 160–1, 164 written directions, 222–3 Solicitor General, 21–2 Sound recordings, 110 Sources of law, 3–4 Special capacities, 126–7, 146–7, 173 Special defences, 94, 115–16 alibi, 94, 115 incrimination, 115–16 intermediate diets, 151–2 reading to jury, 221 self-defence, 116 written directions, 223 Special knowledge, 214–15 Special measures, see child witnesses; vulnerable witnesses Spouses, 180 Stalking, 161 Standard of proof, 10–11 Stated case, 279–82, 284–6 Statute law database, 3 Stolen property, jurisdiction, 18 Sufficiency of evidence appeals against decisions about, 283–4 CCTV, 216 circumstantial evidence, 8, 207–9 corroboration, 8–9, 207–15 course of criminal conduct, 210–13 direct evidence, 8 DNA, 215–16 fingerprints, 215

7265_Brown.indd 307

Moorov doctrine, 210–13 no case to answer submissions, 227–8 overview, 4–5 principles of, 7–9 sexual offences, 207 special knowledge, and, 215 statutory exceptions, 207 submissions as to, 230 Summary procedure adjournments, 145–6, 148–9, 152–3, 223 adjustment to stated case, 281–2 admissibility of evidence, 184 advocation, 285–7 aggravating circumstances, 147 appeals against acquittal on point of law, 284 appeals against conviction, 278–82 appeals against sentence, 282–3 appeals against unduly lenient disposal, 284 appeals relating to preliminary pleas, 278 appearance, 143–5, 150 arrest warrants, 31 back-up trials, 220 bail, 69–70, 147, 150 burden of proof, 4–5 call over, 220 challenges on competency or relevancy, 146 charges, 95, 99–100 closed proceedings, 158 commencement of trial, 220 complaint, 141–3 continuation without plea, 146 court powers, 282 Covid-19 pandemic, during, 220–1 Crown appeals, 284–5 defence appeals, 277–83 delay, 123–4, 150–1 disclosure, 142, 151 domestic abuse cases, 143, 147

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308 Criminal Evidence and Procedure: An Introduction

Summary procedure (cont.) evidence, objections to, 175 failure to appear, 144, 150, 217–18 guilty pleas, 143, 148 identification of the accused, 147 intermediate diets, 149–52, 151–4 leave to appeal, 282 leave to appeal ex proprio motu, 278 meaning, 1, 142 miscarriage of justice, 279 no case to answer submissions, 285 not guilty pleas, 143 Note of Appeal, 282 overview, 21 part-heard trials, 223 preliminary issues/ matters, 145–7 prescribed form, appeals, 279–80, 282–3 previous convictions, 141–2, 184 prior sexual conduct of complainer, 168–71 productions, 142 sentencing, 236 service, 143–4 sexual offences, 143, 147 special capacities, 146–7 speeches, 231 statement of grounds, 279–82 time limits, 142–4, 278 undue delay, 144–5 verdicts, 232–3 witnesses, protection of, 158 see also specific procedures Supervised release orders, 250 Supervision and treatment orders, 121 Supreme Court, 2, 266 Surveillance, 29, 61–2 Suspension, 286–7 Technology CCTV, 176 electronic tagging, 252

7265_Brown.indd 308

live TV link, hearings via, 159, 163, 165–6 police record keeping, 34–5 Television links, 159, 163, 165–6 Terrorism, 249 Theft, 18 Tholed assize rule, 121, 232 Time limits appearance, 143 appearance on petition, 81–2 bail, 69–70, 75 certificates of evidence, service of, 173 challenges to competency or relevancy, 118 compulsion orders, 115 Crown preparation, 80–3 custody time limits, interruption of, 81–2 defence appeals, 267, 273, 278 detention, 35–6, 150–1 driving offences, 144 ECHR, and, 124 extensions, 83–4 fixing the trial, 139 indictments, 81 pre-trial procedures, 80–3 preliminary hearings, 81–2 preliminary issues, 117 preliminary pleas, 117 service, 81 solemn procedure, 80–3, 273 summary procedure, 142–4, 278 Time of offence, charge specification, 96–7 Trafficking in people, 160 Trafficking in prostitution, 160 Trial additional evidence, 229 adjournment, 153 back-up trials, 220 bars to see pleas in bar of trial call over, 220 commencement, 220

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Index 309

defence case, 228 evidence in replication, 229–30 failure of accused to appear, 219–20 indictments see indictments judge’s introductory remarks, 222 jury directions, 231–2 no case to answer submissions, 226–8 part-heard trials, 223 recalling witnesses, 228–9 sentencing, motion for, 233 separation or conjunction of, 124–5 speeches, 231 sufficiency of evidence, submissions as to, 230 unfitness for, 82, 118–21 witness examination, 224–6 written directions, 222–3 Trial within a trial, 177–9 Unfitness for trial, 82, 118–21 Unpaid work/ activity requirement, 253–4 Unpaid work orders, 25–6 Verdicts alternative verdicts, 226–7, 232 announcement, 232 jury consideration, 232 not proven, 232–3 Victim surcharges, 260 Video identification parades, 62 Video recordings, 110 VIPER, 62 Vulnerable witnesses children see child witnesses closed proceedings, 158 deemed vulnerable witnesses, 160–1 evidence in form of prior statement, 167–8 ground rules hearings, 165–6 hearsay evidence, admissibility of, 164, 167 meaning, 159–61

7265_Brown.indd 309

prior sexual conduct of complainer, 156, 168–71 quality of evidence, risk to, 162–3 rape cases, 158 risk of harm to, 163 screens, 166 solemn procedure, 158, 160–1, 164 special measures for, 159–68, 163–8 supporters, 166–7 taking of evidence by commissioner, 164–6 taking of evidence by TV link, 159, 163, 165–6 Warning letters, 25 Warrants apprehension, for, 144–5 arrest under, 30–1 arrest without, 31–2 common law warrants, 56–7 defective warrants, 57–8 drug offences, 50, 55 precognition, 83–4 search warrants, 49–51, 55–60 statutory warrants, 55–6 Wigs, removal of, 158–9 Witnesses Advocate’s Gateway toolkits, 157 aides memoire, 224 anonymity orders, 124, 127–8, 152, 153 assumptions about, 156–7, 179–80 calling, at preliminary hearings, 136 child witnesses see child witnesses competence, 180 credibility, 180 cross-examination, 156–7, 225–6 defence approach to, 156 dishonesty, 181 duty to protect, 156–7 ECHR, and, 158 examination of, 224–6 expert witnesses, 202–6 hearsay evidence, 202–6

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310 Criminal Evidence and Procedure: An Introduction

Witnesses (cont.) identification procedures/ parade, 62, 90 imputations on character, 186–7 leading questions, 225 opinions, factual basis for, 203–4 previous statements, admissibility, 196–200 recalling, 228–9 reliability of, 9–10

7265_Brown.indd 310

spouses as, 180 stress, allowances for, 156, 157 sufficiency of evidence, 9–10 treatment of, 156 vulnerable witnesses see vulnerable witnesses Work orders, 25–6 Young offenders arrest, 33 sentencing, 246, 251–2

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