Grope over fear (part 2)

Yesterday, when I wrote part 1 of this, it was my intention in Part 2 to go through the evidence of the Salmond trial in some detail, to demonstrate exactly what the defence case put was and to allow readers themselves to form a view of his guilt or innocence, not on the criminal test of "beyond a reasonable doubt" but the civil test of "balance of probability". I would also have invited you to form a view of the moral character of Mr Salmond in relation to the details of his conduct that he did admit and indeed moral character of those who had covered this up "for the cause".Others however have this morning done that for me in some excellent press coverage. The person who I think has achieved it best is Maurice Smith in the Scottish Review and I would commend his work to you here. https://www.scottishreview.net/MauriceSmith517a.html

I want instead therefor to make only a point that I have not seen considered elsewhere.

HMA v Salmond had, for months, been scheduled to start on 9th March and had, for months, been reported as being expected to last "three to four weeks." In fact it lasted just over two.

The reason for that shortened timescale was one word: Coronavirus.

Personally, I was a little surprised the trial started at all. By 9th March it was clear a storm was coming. By coincidence, I myself was at the High Court in Edinburgh for a criminal appeal on 12th March and I had never seen the Court, or indeed the city centre as a whole, so quiet on a week day.

By 17th March, day seven of the trial, it was announced that no new jury trials were to start in Scotland, even those scheduled only for a couple of days. Yet existing jury trials were to continue.

The verdict came in on 23rd March. On 24th March the Courts were effectively closed. I strongly suspect the Salmond case was the very last jury verdict delivered in Scotland before the country went in to lockdown.

Once a long jury trial starts the availability throughout of certain key players is essential.The judge, the lawyers, the witnesses and (by law) a minimum of twelve members of the jury. If something happens which prevents that, at least for more than a couple of days, then the trial has to be deserted "pro loco et tempore" and started again. Not from the point where it was abandoned, but from the very beginning. That involves any witnesses who have already given evidence having to do so again, a particularly difficult thing to require of them in a sex offence case.

This was nonetheless an ever likelier possibility as the trial proceeded, compounded latterly by the possibility that if anybody else who had been present in court showed Coronavirus symptoms, then all present would have needed to self isolate.

This undoubtedly impacted on the conduct of he case.

Almost invariably the Crown case forms the bulk of the evidence so when that "three to four week" estimate was put out it might have been reasonably though they'd take up at least two weeks of that. In fact they took less than six days.

Now, once they had started, the Crown faced a moral dilemma. Did they adduce every single piece of evidence in as much detail as possible, running the risk of the trial collapsing, or did they just make sure they, as quickly as possible,  had a sufficiency of evidence on each charge. It is clear they opted for the latter route. And, it should be noticed, they succeeded in that latter task. There was no suggestion by the defence at the close of the Crown case that, excepting the one charge the Crown withdrew owing to the unavailability of a witness, Mr Salmond had "no case to answer", a legal process whereby the judge can direct a finding of not guilty on basis of the evidence being insufficient in law.

But obviously some things went by the way in the process. For example, we heard nothing, to the best of my knowledge, as to the contents of Mr Salmond's Police interview. Indeed, I'm pretty sure that, on behalf of the Crown, we heard from no Police Officers at all.

I say all of that just by way of observation.

As I also say this.

On the morning of the verdict, two jurors were discharged for reasons known to the judge but not disclosed to the jury. Nonetheless, it would be reasonable to say, given external events, that this would have been a worrying and distracting development for the remaining jurors. I also note in passing that, given that eight votes were still required for a guilty verdict, this raised the barrier for the Crown from a simple majority to something approaching a two thirds one.

But that second point is not my main one. When a jury is routinely "sent out" to consider a verdict, they are told by the judge to "take as long as you like" Given these external events however that was surely counter-intuitive on this occasion? Had the jury not reached a verdict on the Monday, as far as they knew at the time, they'd have had to make a fresh journey into the largely deserted city centre the following day to spend that day in an enclosed space alongside twelve other people any one of whom might be carrying a deadly infectious disease.

Now, nobody knows, at least officially, what ever goes on in jury rooms but it is accepted practice that it is never a good idea to put a jury under pressure to reach a verdict. But pressure was inevitable here. And there is also lawyers folklore here that I'm sure would be corroborated by many colleagues. One of the reasons that it is accepted practice not to pressure a jury for a verdict is that there is a strong belief it makes them more likely to acquit. For the very reason that they, if they have not had enough time to consider all the evidence, then must be mindful of their obligation only to convict if satisfied "beyond a reasonable doubt",

That's all. There might be a part 3. I'm still thinking about it.