Grope over fear (Part 1)

I want to start with a personal anecdote.

Twenty or more years ago I represented a man charged before a sheriff and jury with multiple counts of indecently exposing himself to children. His MO was in each case that he jumped out from a concealed spot to primary school aged girls. He then ran off and was never caught at the scene.  Nonetheless, my guy had a record for similar and was local to these events, so the cops set up what is known as an emulator board of photographs of him and others and showed this to some of the victims. Their identification was sufficient for them to get a warrant requiring my client to stand in an identification parade where six out of nine witnesses picked him out. That warrant also allowed them to search his home. A point to which I will return.

Anyway, my guy protested his innocence so the case went to trial.

Now, I say with due modesty, I was a pretty experienced criminal defence lawyer at the time. I'd done at least a dozen jury trials with varying degrees of success but I certainly knew what I was doing.

For the procurator fiscal prosecuting, this proved to be her first ever jury trial.

Obviously, identification was key, and the Crown started with what proved a significant error.

The Crown can lead their witnesses in whatever order they like. In this case they chose simply chronologically. The problem was that the witnesses to the first incident were precisely the three who had not identified at the parade. There were entirely innocent reasons for this. They were children and they had had to wait longest for their chance to make their ID but my opponent thought she could rescue this. So she took her first witness, a wee girl of ten or so, through her recollection of the incident and then ended by asking if she saw the man who had exposed himself "in court today". With little hesitation she pointed out my client in the dock.

Now you are warned as a defence agent you should never ask a question to which you don't already know the answer but to a limited degree I broke that rule here. Although I was pretty sure of the answer.

The system has tried over the years to make it less of an ordeal for children to give evidence,. Things would be much better in such a case today with, at the very least, the use of a video link. But then, some bright spark had decided it would help if they were given a tour of the court in advance. As these kids had been. By the very Procurator Fiscal now prosecuting.

So I started by sympathising with the wee lassie over what had happened to her. It was never the position of the defence but that she had tried to tell anything but the truth about her ordeal. But, could I just ask her this?

Was this her first time in this courtroom? No

When had she been here before? Last week.

Was that just for a wee tour? Yes

And who had conducted that tour? Here she referred to the PF by her first name and smiled at her.

And did you tell you who'd be sitting on the other side from her? Yes, the defence lawyer. At this I gave her a smile of acknowledgement of the right answer.

And what about here (pointing to the bench)? The Sheriff.

And here? The jury

And finally here? "The man who did it".

I paused to make sure the jury got that point. They had.

From now on I will accelerate for the sake of brevity. It was lot more gentle in practice.

Can I just ask you about something else? Do you remember going to the Police station for an identification parade? It is a matter of agreement that this man was in that parade, not on his own as he is today but alongside nine others.  Did you pick him out then? So why did you pick him out today?

"Because [the PF] told me it was him".

Now,for the avoidance of doubt, I am not suggesting even that had happened. My opponent might have been inexperienced but that didn't mean that she had subjourned to perjury. Just that, with the best of (disastrous) intention, the Crown, in an attempt to be witness friendly, had given the girl the impression that this was what they wished her to say.

They never recovered. They ploughed on with the other two witnesses to charge one, who made no identification at all and, by the time they had got on to their other six witnesses, who had identified in perfectly controlled identity parade conditions, the jury had already concluded that their case was trash. My own  "are you absolutely sure" questions to them being entirely rebutted by the witnesses themselves, largely passing the jury by.

But before I came to the denouement, I come back to the search warrant. Even the grimmest, sleaziest, of cases have an element of dark humour. In this case it was a Rangers beeny hat.

On the occasion of every crime, whatever else he was (not) wearing, the perpetrator was wearing a Rangers beeny hat. Each and every witness spoke to that.

When the Police executed the search warrant, what did they find in my client's bedroom? Not one but several Rangers beeny hats. All lodged as Crown productions, some even individually identified by the witnesses.

But the fiscal didn't make the link! All the witnesses spoke to the hat but no witness linked the hat to my client. For reasons to this day unknown, evidence of the search was not introduced. So, as far as the jury was concerned, my client had never owned a single hat of any sort. Indeed he might have been a lifelong Celtic man. Hatless or otherwise.

We were found not proven by majority on every charge.

Now three afterthoughts.Two from then and one from today.

Then, first, the client's immediate reaction. Which was thanks with the expressed regret I hadn't been his lawyer "the first time". I would certainly be if he was ever prosecuted again. It is small consolation that, presumably, he never was.

Secondly, then, the client's parents, who had been in \Court throughout and who seemed the only people present sincerely convinced of his absolute innocence. How they rationalised the Rangers beeny hat is a matter for them. They gave me a bottle of whisky. Without telling them, I gave it to charity.

Thirdly, today. Being found not guilty (or not proven) proves nothing. Except that the Crown has failed to prove their case beyond reasonable doubt on the day.Why I think they failed on a different day, involving much better lawyers, and, crucially,  much fewer jurors, than feature here, will be the subject of part 2.