Saturday 16 March 2019

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
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.  

Friday 15 March 2019

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.