Expert witness evidence
Scots law is perhaps not as well developed in this context as it should be to deal with the challenges and complexities of expert evidence. A recent Supreme Court case, albeit a civil one, offers guidance to supplement our case law, although legislation may be required in future.
In Kennedy v Cordia Services LLP  UKSC 6 (10 February 2016) the decision of the Extra Division of the Court of Session was overturned and that of the Lord Ordinary upheld. In relation to the admissibility of expert evidence, the trial judge has to determine whether the proposed skilled evidence will assist the court in its task, whether the witness has the necessary knowledge and experience, whether the witness is impartial in the presentation and assessment of the evidence, and whether there is a reliable body of knowledge and experience to underpin the expert’s evidence.
Their Lordships highlighted earlier statements of the law in this context, notably Wilson v HM Advocate 2009 JC 336 (Lord Wheatley at para 58), and Young v HM Advocate 2014 SLT 21 when the High Court refused to admit “case linkage analysis”, referring to apparent patterns in a series of crimes, as the witness’s evidence was the subject of only relatively recent academic research and a methodology which was not yet sufficiently developed that it could be treated as reliable.
When an expert report is tendered in an area of expertise which appears novel, it is essential to check that the basis of the expertise used has been the subject of consideration in peer-reviewed academic journals.
The Sheriff Appeal Court
Another four criminal cases have been reported since the last criminal briefing article as the new court gets underway and cases flow through the system.
In two recent sentence appeals, Sheriff Beckett QC delivered the opinion of the court. Jackson v Procurator Fiscal Perth  SAC (Crim) 1 (13 January 2016) re-emphasises that in most cases fines ought to be capable of payment by the accused in about a year. The justice had imposed total fines of £460 in respect of offences of driving without a licence and insurance. The appellant was unemployed and in receipt of benefits of £115 per fortnight. While the fines were allowed to be paid at £10 per fortnight, this would take 92 weeks to repay and the court could not rely on the suggestion made that the appellant was looking for work. Fines totalling £225 were substituted, to be paid at £10 per fortnight.
On the same day, however, in Watt v Procurator Fiscal Dunfermline  SAC (Crim) 2, an appeal against speeding penalties was unsuccessful. The appellant had pled guilty to driving at 96 mph on the M90. He had been offered a fixed penalty of £100 and three penalty points but had been unable to afford this at the time. When he pled guilty at the JP court a fine of £315, discounted from £460, was imposed. Four penalty points were imposed but no discount was applied. The court confirmed that those who are unable to avail themselves of a fixed penalty offer are liable to have their case dealt with on its merits in court. While a discount is available in respect of penalty points, in the present case the court considered that the number imposed could not be said to have been excessive or inappropriate so as to represent a miscarriage of justice.
The Sheriff Appeal Court has taken over from the High Court in relation to all appeals in summary proceedings, and leave to appeal to the High Court is restricted, as was highlighted in Mackay v Procurator Fiscal Inverness  SAC (Crim) 2 (1 December 2015). An application for leave to appeal to the High Court was sought following the refusal of the Sheriff Appeal Court to grant leave to appeal. The case had failed at the second sift. The court pointed out that the right of appeal was governed by ss 175 and 186 of the Criminal Procedure (Scotland) Act 1995 and a sentence appeal was regulated by s 187 of that Act. Once leave to appeal had been refused that was a final decision, and no other leave to appeal could be entertained.
An interesting issue arose in Carey v HM Advocate  HCJAC 10 (2 February 2016). The appellant had been convicted of culpable homicide on an art and part basis, his co-accused having been convicted of murder by inflicting a single stab wound to the heart of the victim. The court was satisfied that there was sufficient evidence to convict the appellant, as he had been aware of the potential use of lethal force and had joined in the attack. While the trial judge had expressed some surprise at the jury’s verdict, there was nothing unreasonable about it.
The court did however observe that there appeared to be an illogicality in the law as it stood, whereby a person could be art and part guilty of culpable homicide when the victim was found to have been murdered, and suggested that a further review by the court or Parliament might be required.
This is an area worthy of further consideration, in light of the recent decision by the Supreme Court in R v Jogee  UKSC 8 (18 February 2016), where their Lordships dealt with “parasitic accessory liability”. Accused persons do not like the prospect of conviction for something which they have not personally done, but a policy balance has to be struck where people jointly engage in a crime, whether planned or spontaneous, and are accountable for the outcome.
Very few appeals relating to the grant or refusal of bail are reported, so it is worth mentioning Bail Appeal by AA  HCJAC 17 (12 February 2016). The appellant appeared on petition on 31 August 2015 charged with rape along with two co-accused. He was remanded in custody as he was a foreign national and there was said to be a risk of absconding due to lack of community ties. No appeal was taken against this decision. The appellant appeared at a preliminary hearing on 22 December, when his trial was fixed for 1 July 2016 and the 140-day time limit extended to accommodate that period of continued custody. No application was made for bail then, nor was the application for extension opposed.
Subsequently an application was made to the Sheriff Appeal Court for bail, which was refused, following which a note of appeal was presented to the High Court. The court said that it was inappropriate to revert to the Sheriff Appeal Court when the case had been indicted in the High Court, and the appropriate time to seek bail was at the preliminary hearing when any application for extension of the custody time limit might be considered.
Crown appeal against sentence
These cases are few and far between, since the Crown has to show that the sentence imposed at first instance was unduly lenient and outwith the normal range of sentence in the particular circumstances.
In HM Advocate v Graydon  HCJAC 14 (22 January 2016) the respondent had been sentenced to a community payback order for three years, with requirements for supervision and mental health treatment. He had pled guilty at a preliminary hearing in the High Court to theft of a quantity of groceries from a convenience store and thereafter struggling with a member of staff and repeatedly striking her with a knife to her severe injury and permanent disfigurement. The respondent had a bad record including convictions for assault and robbery and aggravated burglary involving the use of a knife, for which he had served significant sentences of imprisonment. He also had a history of mental illness and had been discharged from hospital after seven months of inpatient care and treatment, six weeks prior to the offences. While on remand for these offences the respondent had been transferred from prison to hospital under assessment and treatment orders.
During this period the respondent appeared to improve after receiving a change in medication. Ultimately psychiatrists recommended he receive continued treatment which did not require the security of a psychiatric hospital. He was reconciled with his mother, who was willing to support him and ensure he attended appointments.
The High Court refused the appeal, as it recognised the improvement which had taken place while the respondent was on remand or in hospital for a lengthy period. The order contained a robust programme of supervision and mental health treatment. A review which had taken place shortly prior to the appeal confirmed that progress was ongoing. The sentencing judge had indicated that the term required to achieve an extended sentence with a custodial term of four years would have been excessive, and a supervised release order for the maximum 12 months insufficient to monitor the respondent properly. He had spent the equivalent of a sentence of two and half years’ imprisonment on remand. The present lengthy order meant that the court could still impose a custodial sentence in the event of a breach.
In this issue
- Family ADR: why the slow takeup?
- Electronic cigarettes: the medicine of tomorrow?
- Official advice: must do better
- Privacy Shield, the new Safe Harbor
- Maternity: still black marks
- Designed for justice
- Reading for pleasure
- Opinion: Tim Musson
- Book reviews
- President's column
- 20 is the new 40
- People on the move
- Stress: the common enemy
- A safer way to talk
- Mind the gap
- SLCC: a role in standards?
- Budget 2016: a spoonful of sugar?
- Rights lost to sight?
- Take care with care services
- How the Sheriff Appeal Court fits in
- Extended liability?
- Periti credere? [Experts believe]
- What's happening on the review
- Scottish Solicitors' Discipline Tribunal
- Deeds of conditions: emerging stronger
- In-house and staying in demand
- Further warning over historic client balances
- Law reform roundup
- Perceptions and priorities
- Training is the key
- Ask Ash
- By diverse means
- The literal truth