That bastard verdict
Following the emergence of the verdict of not guilty in 1728, Sir Walter Scott later coined the above term in relation to the “not proven” verdict, and controversy over the three verdicts has come to the fore over the years.
In a diversion from COVID-19 and another referendum debate, it is interesting to see that “not proven” may be a topic of contention at next year’s Scottish Parliament elections.
When I was appointed procurator fiscal at Hamilton in 1996, one of my first public duties was to attend the AGM of PETAL, a charity set up by Joe and Kate Duffy following the acquittal on a not proven verdict of the man accused of murdering their daughter Amanda. I found Mr Duffy and his late wife to be dignified, well informed and interested in promoting the abolition of this verdict. What astonished me was that at least six or seven other local people said they had suffered the loss of a relative followed by a subsequent acquittal by not proven.
A campaign and review by the Scottish Office came to nothing, following a consultation in 1994, and various peripheral reviews have suggested reducing the jury from 15 to 12, but none of these piecemeal changes can reform the system where in a funny sort of way the checks and balances are seen by most of the legal profession as being OK – perhaps because they place undue faith in corroboration as a safeguard.
In Al Khawaja and Tahery v United Kingdom, ECHR Grand Chamber, 15 December 2011, cases about the admission of hearsay evidence in statement form, reference was made to Scots law and the principle of corroboration which protected accused persons; but concern had been expressed by Lord Gill in N v HM Advocate 2003 SLT 761 that s 259 of the Criminal Procedure (Scotland) Act 1995 had supplanted the common law which enabled the court to exclude evidence thought to be unreliable, whereas under English law the judge had discretion to reject the statement of a witness in certain circumstances in the interests of justice.
The English system deploys a qualitative rather than quantitative approach at the “no case to answer” stage (compare Williamson v Wither 1981 SCCR 214 and R v Galbraith  1 WLR 1039), and there is a power to exclude evidence thought to be unfair. There are only two verdicts and there must be a unanimous verdict or a 10-2 majority for guilty or not guilty, otherwise the prospect of a retrial arises. By comparison, an 8-7 majority verdict for guilty does not seem like the case has been proved beyond reasonable doubt. If the judge considers the jury’s guilty verdict to have been unreasonable, this can only be raised on appeal (under the 1995 Act, s 103(3)(b)).
The Justice Secretary’s response has been to consider matters fully once the independent jury research published in October 2019 has been considered.
For my own part, after a few years on the bench I resolved in summary trials to abandon recourse to the not proven verdict and restrict my verdicts to guilty or not guilty. If the case was not proved, or worse, barely got off the ground, an acquittal followed and reasons were given.
It is more complicated in the jury context, although for 30 years we have told the 15 men and women that there is no difference between two of the three verdicts: each results in an acquittal. We do not mention that a juror might abstain (Allison v HM Advocate 1984 SCCR 464), and we cannot say that one verdict of acquittal carries a greater emphasis than the other. There must be some confusion from these directions.
What I would like to see is a return to the old Scots way of two verdicts, proven and not proven. Juries could be reduced to 12 on grounds of cost and space – some Scottish courts were designed by architects who thought we only had a jury of 12 in Scotland (!) – and we keep it at eight for guilty, with no retrials unless the provisions of the Double Jeopardy (Scotland) Act 2011 can be invoked on a fresh evidence basis.
Betting is a mug’s game
In another life I might have been a bookmaker, but fortunately at an early age I realised you had to study horseracing form avidly to turn a profit. I still enjoy watching racing, but never bet. Once I was reading a background report in an embezzlement case where a plea of guilty had been tendered but the agent said he would “keep his powder dry” until the sentencing diet. I noted the accused was not addicted to drink or drugs, but turned the page to discover “however he is addicted to fruit machines”. There was nothing social workers could offer by way of therapy, and no means of paying off the losses.
I was interested to read the appeal against sentence Conway v HM Advocate  HCJAC 48 (28 October 2020), a case referred from the Scottish Criminal Cases Review Commission. The appellant had pled guilty by s 76 letter to obtaining £1,065,085.32 by fraud from his employers Dundee City Council, through his position as an IT officer, over nearly seven years. He was sentenced to five years four months’ imprisonment, reduced from eight years on account of the early plea.
The matter was referred after further information that the entire sum had been repaid. Only £7,337.58 had been recovered at the time of the investigation. The appellant had consented to the recovery of his pension and lump sum totalling £258,966.15, and to confiscation which recovered £49,000 in equity from his home. The council had recovered £335,923 from its insurers, and William Hill Bookmakers had made an ex gratia payment of £500,000. They had treated the appellant as a VIP client, and as a result of their conduct had run into problems with the Gambling Commission which ordered repayment to defrauded victims.
The appellant was then 51, and had kept appropriating money in the hope of a big win to pay off all the losses. He was a first offender and had co-operated fully with the police. He had been referred to agencies, stopped gambling and had forfeited 30 years of pension rights. In a supplementary report the sentencing judge suggested that on the new information he would have set the headline figure at seven years, reduced to four years eight months. He would have taken no account of the money recovered from insurers. The court had more difficulty with the William Hill payment, but accepted their dealings with the appellant had been dishonourable and exacerbated matters.
After considering a full range of previous cases the court concluded that sentence had been excessive and substituted six years’ imprisonment, reduced to four.
Wearing an IRA T-shirt
While the appellants in Ward, MacAulay and Walker v PF Glasgow  SAC (Crim) 006 (18 November 2020) had their convictions quashed by the Sheriff Appeal Court, this was due to a lack of corroboration only. It was not denied that at a football match they wore T-shirts depicting a paramilitary figure wearing a black beret and sunglasses with his mouth covered by a camouflage scarf and the Irish tricolour flag in the background. Only one officer from the Police Service of Northern Ireland was led to explain that such a figure was consistent with being a member of the IRA. The court made clear that had a second officer given evidence in this context, the circumstances would have amounted to a deliberately provocative gesture towards opposing supporters and as such amounted to a breach of the peace.
This plea is not straightforward. In a dynamic, fast moving incident, conduct between the parties may lead to different considerations applying during the various stages of the fracas.
In Thomson v HM Advocate  HCJAC 49 (17 September 2020), the appellant was convicted of (1) an assault by brandishing a broken bottle, (2) possessing a broken bottle as an offensive weapon, contrary to s 47(1) of the Criminal Law (Consolidation) (Scotland) Act 1995; and (3) brandishing a broken bottle at the complainer, contrary to s 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010. The jury deleted from the assault charge the words “repeatedly punch and kick him on the head and body, strike him on the head with a bottle or similar item”. A plea of self defence had been entered to all charges.
The complainer was walking an elderly lady home when an altercation arose in a group including the appellant. The complainer intervened, and pushing and shoving ensued between him and the group. It was said that the complainer fell to the ground, was punched and kicked, and hit with a bottle thrown by the appellant. He got to his feet, whereupon the appellant broke another bottle against a wall and threatened the complainer until passers-by told him to “leave it”. The complainer had separately been charged with assaulting a female in the appellant’s company.
The sheriff directed the jury that self defence was not open to the appellant in relation to charges 2 and 3, as he had armed himself with a weapon. The court indicated the sheriff had erred in directing that fear of an attack cannot provide a reasonable excuse for possessing a weapon. A “waiter’s friend” – a corkscrew and penknife combination – had been found by police at the locus; the complainer admitted he owned one but said it must have fallen out of his pocket in the assault. The jury’s deletions indicated they did not wholly believe the complainer, perhaps tending to the view that he had produced the implement, and the directions amounted to a miscarriage. The court quashed the convictions on all three charges, and tantalisingly did not feel the need to consider the second ground of appeal, that the appellant could not be convicted of both charges 1 and 3 as they each concerned the same species facti. A rare opportunity was missed to stop the Crown from needlessly overloading the libel with duplicate charges.
Disclosure is the cornerstone of the modern criminal justice system. Gone are the days when each party prepared its own case and precognosced witnesses. The growth of human rights and the need for the Crown to disclose more than a list of witnesses coincided with reductions in legal aid. In the result, the defence rely on the Crown to produce a summary at the outset, and witness statements and relevant productions to prepare their case. The multi-media police report is still some way off, and the system’s hope for more early pleas is unrealistic until the agent can show the client glorious technicolour footage of the crime being committed in an attempt to stir their hazy or non-existent recollection.
In McCarthy v HM Advocate  HCJAC 52 (13 February 2020) an appeal was taken after the Crown and police stated to the defence that the information sought did not exist. Concern was expressed over the time the appellant had remained in custody awaiting trial, although the court highlighted there had been two changes of legal representation.
The appellant was indicted on drugs supply charges over two years before, and had a preliminary hearing in September 2018. A bland defence statement was lodged denying the charges; no information was sought to be disclosed. There was reference to a special defence of coercion, but it was indicated the defence were ready for trial.
A preliminary issue minute about the search warrant was lodged prior to trial in January 2019 but refused as too late. A bill of advocation and a petition to the nobile officium, both described as incompetent, followed. Counsel and agents withdrew from acting at the trial diet “due to differing views on the conduct of the defence”, and new dates were set for March. At the PH a special defence of coercion was allowed to be received although late; this described a man known only as Lee as the driving light. It was agreed to adjourn the trial until July. On that date the new defence team withdrew due to “a breakdown in trust” with the client and a new trial date was fixed for November 2019.
In October a supplementary defence statement was lodged indicating that although the accused’s defence was one of coercion, he had also been “the victim of entrapment by a state agent”. Two female names were given, and information requested.
By letter in January 2019, the Crown had stated that “at no time preceding... arrest was any covert police officer deployed to engage with [the appellant] or any other covert tactic deployed... no officer supplied drugs to any female from Renfrewshire”. Following further enquiries, the Crown confirmed that no surveillance had been used. The search warrant used to recover drugs, cash and paraphernalia from the appellant’s home had been obtained on the basis of intelligence received.
The court was critical of the original pro forma defence statement and indicated that if an accused wished the Crown to make proper disclosure in what is intended to be a balanced statutory scheme, they should comply with the obligations set out in the scheme, namely to provide as much information as possible. The court was left with no basis apart from the appellant’s own musings that the information sought existed. The Crown said it had no such information, so the application and appeal failed.
Their Lordships were clearly shocked in February 2020 that the trial had not proceeded and ordered that the case be given priority to ensure it proceeded at the next calling. I presume with the belated publication of this opinion it has now taken place.
Frank Crowe, sheriff at Edinburgh
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