Sunday 29 March 2020

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.

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.

Saturday 28 March 2020

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.

Tuesday 17 March 2020

Corona virus and me

It's a weird, weird time and, in truth, I have no special insights.

I thought however I'd just record how Coronavirus is affecting me because I suspect pretty much everybody else would have a similar story.

First of all, my work. My firm has effectively stopped receiving new business and much of our existing business has stopped progressing. Understandably, to the clients, even things that might have been a priority: child contact disputes; personal injury claims close to settlement; "closing" commercial property deals don't seem nearly as important. In the latter case, anyway, why would any potential buyer proceed given the current uncertainty?

We've stopped seeing existing clients face to face, instead dealing with them over the phone and sending out documents for signature rather than getting people in for that purpose. That works but only up to a point. Sometimes there is a benefit in seeing the client's general demeanour and reaction to the matter under discussion. You can't do that over the phone.

But soon there will be no business at all for our domestic conveyancing team. Who'd buy or attempt to sell a house in this circumstance? And the courts will, I suspect, shortly be dealing with only absolutely emergency business, so they'll not be much for me to do either. We had an interest in a High Court trial on Monday with a significant consequence for another matter. The trial won't be happening since no new jury trials are to be started.

Now, in the end we are lucky. This business won't fold but we'll undoubtedly need bank support and, one day, that will have to be repaid. God knows how I'd be feeling if I ran a restaurant  or a hotel or even a corner shop.

For me personally, I was planning to semi retire at the end of April but I've already cancelled that plan as much of the capital value of a business like this is in the "work in progress" (work done but not yet feed). At the end of April that is likely to be wholly untypical.

Anyway, what would I have been retiring for? My plan was for Andi, my life partner, and I to go to Italy for the whole of June, rent a house with a spare bedroom and invite friends or family to join us for a few days at a time. No chance that's going to happen now, or even this year. Andi had arranged a month's unpaid leave from her work. She's asked if she needs to take it.

And that holiday was amongst other things to celebrate her finishing her OU degree. But for that she needs to sit an exam. What's the chances of that going ahead?

And then finally, she had also just got a new (additional) job as an interpreter. But if there are no courts or routine medical procedures it's unlikely there's going to be any work in that line.

All of  this however is as nothing compared to my principal concern. You see, I've still got a wife. After fifteen years of remorseless progression, she is now in the very late stages of Alzheimer's disease and exceptionally frail. She is cared for at home but now does little more than sleep and eat, assisted by a battery of brilliant carers. What however if they get ill? The idea that this is an unskilled job is grossly insulting to those who do it. I certainly couldn't do it adequately.

But worse still, what if Maureen herself gets it? I have, long before the current crisis, decided she is not going back into hospital. She knows enough to know she is not at home and in the company of strangers. The last time she went in, three years past, she became increasingly distressed and I then had to fight a ludicrous battle with the hospital administration to get her out, despite them conceding she did not need treatment. In any event, if any rationing of access to hospital care arises, I am realistic enough to know where she would emerge from any triage.

So all I can do is wait, and hope. With a foreboding expectation.