Only yesterday, I was discussing provisions of the Coronavirus (Scotland) Bill which would have led to the suspension of trial by jury for indictable offences in Scotland.
It seems that the Scottish Government has had second thoughts about this issue and has decided not to proceed with these proposals – although Humza Yousaf MSP, Cabinet Secretary for Justice has said that the Government will revisit the matter sometime in the next month.
This is the essential problem with emergency legislation – the unexpected consequences which arise in such situations due to the fact that there is a lack of effective oversight or supervision.
Were the Government’s proposals a sinister attempt to undermine trial by jury or were they simply a necessary evil determined by social distancing requirements during the COVID-19 crisis?
Whatever reason you prefer, the Scottish Government has found itself at the centre of a backlash from the usual suspects – the Scottish Criminal Bar Association – and from its own supporters e.g. Joanna Cherry QC MP (see below):
This has led to a situation which no Government (irrespective of its political colours) likes to be in: having to make an embarrassing U-turn.
In normal times, of course, the Government would have circulated its proposals in a discussion paper well in advance of any draft legislation being published. In this way, various interested parties, such as the Faculty of Advocates and the Law Society of Scotland, could have made their views known and, for the Government, this allows a useful measurement of the temperature to be taken.
The Law Society of Scotland, which represents solicitors, bemoaned the lack of consultation by the Scottish Government (see below):
This is why emergency legislation should always contain a clause or a provision which allows it to be regularly reviewed by Parliament. In this way, very simple questions can be posed:
Is the law working properly?
Is it still necessary?
Please find below a link to the story about this development on the BBC website:
Apparently, the Chinese have a proverb which translates something along the following lines: the Devil gives you your family; thank all Gods that you can choose your friends!
Quite an apt statement to lead me into my next blog. Families can be great; they can also be problematic. This point is emphasised by reference to a recent decision of the Appeal Court of the High Court of Justiciary in Edinburgh.
In Michael Scott Ritchie v Her Majesty’s Advocate  HCJAC 7 HCA2019/327/X, the Appeal Court had to consider whether a Sheriff sitting at Elgin had misdirected the jury and, consequently, a miscarriage of justice had occurred.
The convicted person or appellant, Michael Ritchie, certainly thought so. He had appeared at Elgin Sheriff Court in 2019, charged on indictment in respect of the following matters:
“on 11 or 12 May 2018 you … did break into the dwelling house owned by [JR] … at Strathville, South Street, Forres, Moray and steal a quantity of jewellery, medals, coins and a box;
You … did commit this offence while on bail, having been granted bail on 15 June 2017 at Elgin Sheriff Court.”
He was convicted of the offences libelled above after the conclusion of a solemn (jury) trial and sentenced to 21 months in prison (3 months of which were for the bail violation).
Part of the evidence put forward to convict Ritchie by the Depute Procurator Fiscal (the prosecutor for the benefit of our non-Scottish readers) was a small black torch which was found at the locus of the crime. The item was not a possession of the householder. The torch contained traces of Ritchie’s DNA and he admitted that the item belonged to him. ‘Ritchie further admitted that he had been about 150 yards from the vicinity of the crime scene, but he strongly asserted that he was not guilty of any offence.
DNA – infallible evidence?
This is where the case gets quite interesting: Ritchie stated that although his DNA was on the torch, he had not committed the crime of house-breaking (or burglary as our friends from common law jurisdictions would say). He was not responsible for leaving it at the locus.
In other words, Ritchie was contending that, merely because his DNA happened to be on the torch found at the crime scene, this in itself was not conclusive evidence of his guilt. Ritchie, of course, was using a special defence available in Scots Law known as incrimination – he was claiming that someone else [his brother] had committed the offence. Interestingly, Ritchie’s brother had previous convictions for theft, but these had involved commercial premises.
He further asserted that he may have loaned a torch to his brother in the last month or so. He contended that the torch given to his brother was a black rubber one. Unfortunately, for Ritchie the torch found at the locus was a black metallic item.
When speaking to students about the issue of corroboration in criminal law, I often ask them which sources of evidence might be used by a prosecutor to help secure a conviction? DNA evidence will almost always feature in the range of answers that I am given.
… but I should urge caution: it’s not an infallible source of evidence. It has to be put in context and the onus (or burden) about what the DNA tells the Court i.e. whether it can point the way to the accused being guilty beyond reasonable doubt remains very much the responsibility of the prosecution (or Crown).
The role of the Sheriff and the jury
In a solemn trial, there is a strict division of responsibility: the jury is regarded as Master of the facts; whereas the Sheriff is Master of the law.
The jury will, therefore, determine the guilt or innocence of the accused based upon the evaluation of the evidence presented during the trial. The burden of proof rests with the prosecutor (representing the Crown or the State) in that s/he must convince the jury that the accused is guilty of the charge(s) contained in the indictment.
When summarising the evidence that has been presented to the court, the Sheriff must do so in a way that avoids the introduction of bias. The jury must be able to come to its own determination of the facts.
If guilt is established, it is then the task of the Sheriff to impose the appropriate sentence – usually at a subsequent hearing (for which there is no need for the jury to be present).
The main thrust of Ritchie’s appeal to the High Court in Edinburgh was that the Sheriff had misdirected the jury which led to him being wrongly convicted.
Sadly, for Ritchie, the Appeal Court did not agree.
Statements by the Procurator Fiscal Depute concerning the veracity of Ritchie’s responses during a Police interview did not suggest that the onus was now placed on the defence to prove his innocence. An accused in a Scottish criminal trial is under no obligation to prove his/her innocence. Innocence is, after all, presumed and it remains the task for the prosecution to prove guilt.
Lord Carloway, the Lord Justice General, giving the opinion of the Appeal Court noted:
‘… that the sheriff made it clear that the onus remained on the Crown and that there was no such onus on the defence. The sheriff’s reference to hypothetical situations was merited in the circumstances. Anything said by the PFD [Procurator Fiscal Depute] was adequately covered by the sheriff in her general directions on onus; the sheriff being in the best position to determine what was required in order to correct any misconception that the jury might have had from what the PFD had said.’
Regarding the presence of the torch (belonging to the accused) at the locus, this was in itself a ‘highly incriminatory’ fact. Significantly, Ritchie had not identified the item when presented during his trial as being the torch that he claimed to have previously supplied to his brother.
In reviewing the testimony of the expert witnesses who spoke to the DNA evidence at the trial, Lord Carloway had the following to say:
‘Expert evidence about the deposit of DNA was led by both the Crown and the defence. There were various scenarios put to the experts about how DNA can be deposited, how long it could remain, how it could be transferred and whether it was primary or secondary. The sheriff described all of this evidence as essentially common sense. There was, however, a disagreement between the experts in relation to four peaks, which had been identified from the DNA print-out upon testing.’
The four peaks could either be artefacts (the Crown) or DNA belonging to an unknown person or persons (the defence).
The Crown submitted in its argument to the Appeal Court that the Sheriff had correctly emphasised to the jury “to scrutinise the evidence with care and be satisfied that there was an evidential basis for the submissions which had been made to them.”
Taking all of the above matters into consideration, there was no evidence to suggest that Michael Ritchie had suffered a miscarriage of justice and his appeal was refused.
A link to the judgement of the Appeal Court can be found below: