An experienced solicitor has been criticised by the Criminal Appeal Court for making statements which he knew to be incorrect or misleading in his speech to a jury.

The court's remarks were made at the end of a judgment in which it refused the appeal of James Penrice against his conviction in Glasgow Sheriff Court for lewd and indecent behaviour towards a girl, AW, then aged between 12 and 16 over a four year period in the 1980s.

The only available corroboration of AW's evidence was evidence in support of a docket attached to the indictment specifying similar behaviour towards another girl, CL, to which the accused had pled guilty in 2015. At trial the solicitor had declined to cross-examine CL, having previously explained to the sheriff that he considered it inappropriate to challenge her credibility when the accused had previously pled guilty to that offence.

In addressing the jury the solicitor said the fiscal had "made a big deal about the fact that I didn't cross-examine [CL]", but that the jury was not being asked to return a verdict on that matter, and "why should I waste your time?... Do we really care what she says?"

Directing the jury, the sheriff said: "there was no challenge... to the evidence of [CL], and you can accept that what she said had happened to her... as true". On appeal this was argued to be a misdirection: the sheriff had overcorrected matters and all that needed to have been said was that the jury required to be satisfied that the witness giving evidence in support of the docket could be treated as credible and reliable. 

Giving the opinion of the court, Lord Turnbull, who sat with Lord Justice General Carloway and Lord Brodie, said: "The first point to note is that it was incorrect to say that the procurator fiscal had made a 'big deal' about the absence of cross examination of this witness. In her speech to the jury the procurator fiscal observed, correctly, that the evidence given by CL was uncontested by the accused, not subjected to any cross-examination and the truthfulness of what she had said had not been challenged. This was in the context of the procurator fiscal moving on to invite the jury to apply the doctrine of mutual corroboration... 

"By contrast, it was quite wrong of the appellant’s solicitor to suggest that the jury should not care about the evidence of the witness CL. The legal effect of her evidence, as he knew, was important, as it was available to provide corroboration for the evidence of either or both complainers. Of even more importance however was the suggestion that he had chosen not to cross-examine this witness in order not to waste the time of the jury and the implication that there was available to him a basis to challenge the witness’s credibility and reliability in the same sort of way as he had in cross-examining the two complainers...It was not suggested in the appeal that the comments made could be justified in any way."

Against that background it had been necessary for the sheriff to correct what had been said and explain the use to which CL's evidence could be put. In the context of his charge "it is clear... that in this passage the sheriff was doing no more than explaining to the jury that they were entitled to accept the evidence of CL as true". A similar comment at another point was regarded in the same way, and there had been no misdirection. Sentence of 15 month's imprisonment was also upheld.

Concluding, Lord Turnbull said the court wished to return to the matter of the statements made by the appellant’s solicitor to the jury. "It is a fundamental requirement of the privilege and right to appear on another’s behalf in court that the legal representative conducts himself in accordance with recognised standards of propriety", he observed. "The most obvious of such standards is that the legal representative must not make a statement to the court which he knows to be incorrect or misleading. This duty is reflected in Section B, rule B1.13 of the Law Society of Scotland Practice Rules 2011.

"We understand that the solicitor who acted for the appellant was a senior member of the profession with around 30 years’ experience. Much of the process of advocacy is learned through observation. It is all the more important that those from whom newer members of the profession will learn about the process of advocacy adhere to the recognised standards of propriety which both the court, and the profession generally, expects to see."

Click here to view the opinion of the court.