A legal tutorial (part 2)

Well here I am again, this time while hoping not to be too distracted by the rugby.

So, where have we got to?

The accused has declined to avail himself of s.76 to tender an early plea and so the Crown elect to bring the matter to trial by serving an indictment.

At this point, I am going to make certain assumptions for the sake of brevity.

Firstly that the matter will proceed in the High Court where the procedure is slightly different from before a Sheriff and Jury.These cases do go to the Sheriff Court but where the likelihood is, on conviction, of a sentence of five years or more (because of the seriousness or multiplicity of the charges) the High Court is usually the Crown's chosen forum. And it is their call.

Secondly, that there are no particularities in respect of the capacity (physical or mental) of the accused to stand trial.

Thirdly, that there are no preliminary legal issues relating to the relevancy or competency of the charges or as to a challenge to the admissibility of any intended evidence.

The next thing that happens then must happen within ten months of the appearance on petition  The Crown must serve an indictment specifying a date for the case to call for a "Preliminary Diet". The Criminal Procedure (Scotland) Act 1995 (hereinafter "the Act" provides that, when the accused is not remanded in custody, a Preliminary Diet must take place within eleven months of the appearance on petition and the Act also provides that the accused must have twenty eight clear days notice of the Preliminary Diet, thus giving you the ten months I refer to above.

The service of an Indictment is not something automatically in the public domain but it is not a secret either and a practice has arisen of the Crown (I presume) alerting the press to its happening together with the date of the first appearance. That is publicly reportable and the information disclosed at Petition stage repeated but otherwise no further details disclosed.

With the Indictment the Crown will normally serve a "Statement of Uncontroversial Evidence"  which will in the absence of defence objection be taken to be admitted. This is usually just Police procedural stuff, agreement that "paper productions" are what they patently appear to be and that any transcripts of evidence or video footage of interview(s) are accurate. If the defence objects, "normal" evidence is simply led at trial but there are imperatives on defence lawyers not to play games about this. In sex offence cases the Crown will also normally serve "Vulnerable Witness Notices" providing for the special measures such as screens or video links that they propose be used to take the evidence of the complainers or any other persons deemed to be vulnerable witnesses. This in itself could be the subject of a blog on its own but here I will simply assume that no issue is taken.

Seven days prior to the Preliminary Diet the defence must do two things. They must co-operate with and lodge the Joint Written Record I referred to in my earlier blog and they must also lodge a "Defence Statement" in terms of Section 70A of the Act. A defence statement indicates in general terms the nature of the defence but crucially it must give notice of any "Special Defence". Now there are a number of special defences in Scots law. Theoretically, in cases of the nature I am referring to, there might be the possibility of an alibi, or a plea of temporary mental incapacity but the key one here is consent. If the accused wishes to advance a defence of consent, notice must be given at the preliminary diet and if it isn't (and no other special defence comes into play) then the accused is left with the simple defence of "it never happened". The problem of course in cases where there are multiple complainers is that while a consent defence can be lodged in respect of each incident, that complies with the procedural requirement but, at trial, "they all consented at the time but they are all saying something different now" is a pretty high mountain to climb, even to the extent of raising a reasonable doubt.

But what the defence must do is not what the generally need to do. Here is section 274 of the Act:-

274 Restrictions on evidence relating to sexual offences.(1)In the trial of a person charged with an offence to which section 288C of this Act applies, the court shall not admit, or allow questioning designed to elicit, evidence which shows or tends to show that the complainer—(a)is not of good character (whether in relation to sexual matters or otherwise);(b)has, at any time, engaged in sexual behaviour not forming part of the subject matter of the charge;(c)has, at any time (other than shortly before, at the same time as or shortly after the acts which form part of the subject matter of the charge), engaged in such behaviour, not being sexual behaviour, as might found the inference that the complainer—(i)is likely to have consented to those acts; or(ii)is not a credible or reliable witness; or(d)has, at any time, been subject to any such condition or predisposition as might found the inference referred to in sub-paragraph (c) above.(2)In subsection (1) above—“complainer” means the person against whom the offence referred to in that subsection is alleged to have been committed; andthe reference to engaging in sexual behaviour includes a reference to undergoing or being made subject to any experience of a sexual nature.]
Now, to be clear, this applies not only to the leading of third party evidence by the defence but to the questioning of the complainer(s) themselves.
So, if the defence want to suggest, for example, that a complainer had consensual sexual relations with the accused before or after the incident charged, they need to get permission. And the scope for getting that permission is provided by section 275. I won't quote this in full but here's the link if you are interested https://www.legislation.gov.uk/ukpga/1995/46/section/275
A section 275 application must be made seven days prior to the the Preliminary Diet and disposed of there (it's not quite as simple as that but this will do) and once disposed of the defence can only ask questions as allowed to do so. The disposal of such an application is, as you will appreciate, quite often a significant milestone in relation to the prospect of a "muddying the waters" defence.
With that to the Preliminary Diet itself. 
Unlike the appearance on Petition, in the absence of any court ruling to the contrary, this takes place in open court and the press can report the charges in full excepting not only the identity of the complainers but anything that might reasonably lead to their identification. 
Having disposed with the procedural issues outlined above and anything else that might arise, the judge fixes a trial date and trial must then commence within one year of the appearance on Petition. 
Except it is not as simple as that. Quite commonly either the defence or prosecution aren't ready to do that. Defence investigations are ongoing or Crown witnesses aren't available, or sometimes in relation to a potentially long trial, there simply isn't a courtroom readily available. So there is an extension to the twelve months granted by the court. This is much more common than you might think. Indeed,on occasion, can be for several months.
Anyway, finally, to the trial. 
This is in some way the easy bit. There are fifteen jurors. There are no opening statements. The Crown lead their witnesses and close their case The defence then make submissions of "no case to answer" in respect of any charge on which they think there is an insufficiency of evidence*. Assuming there is no  knock out blow, the defence lead any evidence they are inclined to do so. Prosecution and then defence speak to the jury. Then the judge does. The jury retire and, in respect of any charge for which there is a simple majority for guilty, that's what happens. All of the above which the press can report.
Obviously, if the accused is found not guilty, that's the end of it. 
Excepting the rare occurrence however where, although there is a finding of guilt only on trivial matters, more serious allegations having all failed, a finding of guilt is not the end of the matter. 
In Scotland, no-one who has never previously served a period of imprisonment can be sentenced to one without the court having first obtained a Criminal Justice Social Work Report. So sentence has to be deferred for that purpose. And even where imprisonment is more or less inevitable bail is usually continued for that purpose.  
But, generally within four weeks, as the rules provide, sentence is then imposed. 
As I say, imprisonment is almost inevitable for serious or even repeatedly individually less serious offending. But it is not just a matter of the jail. Any convicted person must be placed on the sex offenders register for a period the judge determines. He may also receive an "extended sentence" whereby although he has finished his prison sentence he remains subject to continued conditions of behaviour and/or supervision on his release. 
And then, excluding any appeal, that is finally it.
And that is finally me. 
Well done Wales, by the way.
*In what I have said above, for reasons of brevity, I haven't dealt with the issue of  Moorov sufficiency at all although this is the point where, if applicable, it would come into focus.