A legal tutorial (Part 1)

I'm in a bit of an odd position this afternoon as I was meant to be in court and by the time it became that wasn't necessary, it was too late to make client appointments. Unfortunately, a couple of client appointments had already been made in anticipation of my return from court post 4pm, so I have to stay here for them. In the meantime however I have dealt with my mail, returned all my calls and even run out of "put off" work to fill my time.

So, I thought I would indulge in a wee bit of legal education, which is about the conduct of the defence in a historic sex offence prosecution.

Alleged serious historic sex offending proceeds under what is known as Solemn Procedure.

The first appearance is made in private and (in the absence of reporting restrictions, the press are free to report the happening of the appearance and the identity of the accused. The only other matters they can report are the general nature of the charges as provided to them by the Crown office and Procurator Service. (hereinafter "the Crown"). In non sexual cases the Crown will quite commonly give the press quite a lot of detail, e.g. "It is alleged that on 10th May the accused entered the Royal Bank of Scotland at 22 Main Street, wherever, armed with a shotgun, that he held members of staff hostage there, and robbed the bank of £50,000". In sexual cases this is not the practice, detail of the charge(s) usually being restricted to the nature of the offence or offences alleged, without reference to place or time.

The press are also allowed to report whether any "plea or declaration" was made by the accused (although invariably none is!) and, procedurally the case is then either, "continued for further examination" or "committed for trial". In practice, assuming the accused is admitted to bail (and failing previous convictions bail is invariably granted in historic sex cases) the route thereafter is identical. The accused is admitted to bail on standard conditions but usually with the additional condition that he (I'm just going to use "he" throughout as alleged offenders of this nature are overwhelmingly male) does not contact or attempt to contact any of the "complainers", that being the technical term for accusers.

This, until the next appearance, is as much as the press can say about matters until the next appearance in court, a matter I will come on to.

But what is visible to the world  is only a fraction of what has happened. Prior to appearance in court, the accused will have been served with a "Petition" which sets out in detail the charges he faces at that time. This will give details of place and date and not just the ultimate crime alleged but it's mechanism. My apologies for the explicitness of what follows but a historic rape charge might read (after a preamble) "on various dates between 1st January 2004 and 31st March 2004, at 22 Main Street, Wherever, you did repeatedly strike and punch Jane Doe, your then partner, forcibly remove her clothing, insert your penis into her vagina against her will and did rape her."

You will note the accused is given the name of the complainer although that never, ever features in the public domain even if the accused is acquitted after trial.

You will also note the date I have given. In 2009 there was a major change to Scots Law in
relation to sexual offences by virtue of The Sexual Offences (Scotland) Act 2009. That redefined or re-categorised  certain offences but it also put them on a "Statutory" footing so that what had previously been common law crimes became crimes charged as a contravention of the 2009 Act. But the criminal law cannot be retrospective, so pre 2009 offending is still charged under the old law, as per  the example I give.

But at first appearance the accused is also given what is known as the "Crown Summary". This is, literally a summary of what the Crown says is the evidence they intend (or at least hope) to adduce if the matter proceeds to trial. This document normally runs to several pages but to precis, in relation hypothetically to the charge above, it would consist of details of the parties relationship; greater detail of the circumstances surrounding the alleged rapes; any contemporaneous supporting evidence such as medical records;  what happened subsequently in terms of the parties separation; why and how the complainer first went to the authorities; a narrative of the police investigation which followed, including any details of anything said at interview by the accused and, finally, any reply to caution and charge.

Anyway, that's what the defence know now but shortly they will know more.

Following the first appearance, the defence request from the Crown what is known as "disclosure", which consists of all statements taken or provided in connection with the case, including any statements upon which the Crown do not intend to rely. Disclosure also involves copies of any Police forms or other documentary productions, including medical or other records if appropriate.

In an "early arrest" case, such as a robbery, all of the evidence might not yet be available, at least in disclosable form, but historic sex abuse cases usually come "pre-packed" in that all Police Inquiries are concluded before the accused appears in court, so disclosure usually follows fairly quickly.

Now, when I started out in this job, more than forty years ago, there was no disclosure except of productions. All you got by way of witnesses was what was known as a "provisional list" of those the Crown were currently thinking of calling. The defence had to arrange their own statements to be taken but once they had what generally happened was....nothing. You just sat and waited for the Indictment (of which more later) and any discussions about pleas awaited its issue.

Since then, however, there has been a complete game changer. What is now section 196 of The Criminal Procedure (Scotland) Act 1995, introduced as part of the "founding" Statute by the Crime and Punishment (Scotland) Act 1997.

It provides quite expressly that an accused person will receive a discount in sentence in exchange for an early plea. In a series of judgements since, most significantly in Spence v HMA in 2008 the High Court has set out what an accused might reasonably expect that sentence to be and, crucially, that discount is a full one third of the term that might be imposed. Now there are still discounts available at later stages but these reduce the closer it  to trial before the case resolves. And there is also double whammy for the accused. Someone facing a five year full fat sentence, with a one third discount, ends up with a sentence of three years, eight months. That then is a sentence of under four years, qualifying them for automatic remission of one half, meaning they serve only 22 months. The five years is obviously over four however, and the remission drops to one third, meaning you would serve 40 months. For the same crime, based on decisions the accused has made before conviction.

So there is real pressure on accused persons to take advantage of s.196 by authorising their lawyers to approach the Crown to resolve the case before an Indictment is served. This is particularly so still when the accused faces multiple charges, where the Crown might be content to drop certain charges in exchange for a plea whereas insisting on proceeding with all charges if the matter goes to trial.
And just to emphasise this, if the defence do just wait for an Indictment, they must then prepare what is known as a "Joint Written Record", which is essentially a document signed by both prosecution and defence, indicating what steps have been taken to agree evidence or establish contentious legal issues. One of the questions the defence must answer on this standard form is to expressly confirm the accused has been advised of the provisions of s.196.

If an agreed plea is reached at this stage, then the defence sends the Crown a letter as required under section 76 of the Criminal Procedure (Scotland) Act indicating the intention of the accused to plead guilty on the agreed terms and the matter then calls in Court under an accelerated procedure for the plea to be tendered.

What happens then, I will deal with later.

And I've run out of time! In the end I did have more to do this afternoon than I thought.

I'll try to get  this finished at some point over the weekend.