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:
Our non-Scottish readers may have difficulty with ‘thole’ – actually to thole, a verb. It means to be able to endure something or someone. Scots will commonly say that they can’t thole a person , meaning that they dislike or have very little time for an individual. I understand that people in in the North of England also use this word.
Assize is probably a word that some lawyers might be familiar with: it means a trial diet (sitting) of a criminal court. Perhaps the best example of the word coming into popular use was the term ‘the Bloody Assizes’ presided over by the notorious, English hanging judge, Lord Chief Justice George Jeffreys in 1685. These events were, of course, a long time ago and followed the Duke of Monmouth’s ill fated rebellion against his uncle, King James VII of Scotland (James II of England, Ireland and Wales).
Enough of history for now …
In the legal context, if we take the two words together and put them into the following sentence: he has tholed his assize, it means that someone has endured prosecution and trial and has been vindicated or acquitted.
This is precisely what happened today at Edinburgh’s High Court of Justiciary (Scotland’s Supreme criminal court of trial) when the former First Minister of Scotland, Alex Salmond was acquitted of 13 charges that he had sexually assaulted 9 women. The jury found him not guilty of 12 charges and returned a not proven verdict for the remaining charge. Mr Salmond was tried on indictment under solemn procedure in the High Court of Justiciary. Solemn or jury trials are reserved for more serious types of crime and they take place in either the Sheriff Court or the High Court of Justiciary.
It is worth pointing out to our non-Scottish readership that, in Scottish criminal trials, we have 3 possible verdicts, namely:
Not guilty and not proven are both acquittal verdicts, with the not proven verdict being a peculiarly Scottish development. I noted that the BBC referred to this verdict as “highly controversial”. It’s usefulness is still debated to this day, but it is a common outcome of many trials.
It was the jury of 13 – originally 15 – men and women that acquitted Mr Salmond. The jury in a criminal trial is said to be the ‘Master of the facts’, whereas the judge is said to be ‘Master of law’. It is, therefore, the task of the jury to weigh up the evidence presented at trial and come to its verdict.
At this point, I should also remind our readers that it is not simply a case of prosecution and defence presenting their respective cases at the trial. This would be to ignore the subtleties at play: the prosecutor (in the Salmond case: Mr Alex Prentice QC) has to operate under the onus or burden of having toprove the allegations against the accused. All the defence has to do is to deny the allegations. We operate in a system of criminal justice which emphasises the presumption of innocence.
I have been asked by several people over the last few weeks to predict the outcome of the Salmond trial. I have responded in the following way: I do not know Mr Salmond; and I have never met him or his accusers (I do not know these individuals either), so how can I give you a reasoned opinion?
Ah, but my questioners persist: surely, you have been following accounts of the trial via the media? To which I respond, not really …
Now the media does a very important job, but it can only provide us with a subjective view of things. Journalists will prioritise what they think are significant factors – no matter how impartial they think that they are being. Trial by media is never a good thing; it is to the jury alone that we entrust the task of determining the innocence or guilt of the accused.
We shall never know the precise motivations behind the jury’s decision today. Section 8 of the Contempt of Court Act 1981 makes it a criminal offence for jurors to reveal the reasons for their decisions (an interesting book about a jury trial in England, but not about the jurors’ deliberations, is The Juryman’s Tale by Trevor Grove (Bloomsbury: 2000).
It may be trite to say this, but there are no such things as open and shut cases. Things (the evidence) can and do sound very different in the surroundings of a court room. I have seen overly confident prosecutors come swiftly undone when the defence emphasises a flaw in the prosecution’s arguments. Here comes the nagging doubt I think; the chink in the armour; the reasonable doubt which heralds an acquittal verdict. Nothing is ever certain.
Whatever your views or feelings about Alex Salmond Esquire, this is exactly what happened today: the jury weighed up the prosecution’s case, found it deficient (in that it did not meet the criminal standard of proof) and acquitted the accused.
A link to an article about the Salmond verdict on the BBC website can be found below:
Scotland’s former first minister is found not guilty on 12 charges, while another allegation is found not proven.
You’re a 22 year old man living with your mother in a terraced house in Coventry. You have been diagnosed with Autism Spectrum Disorder since childhood. You have no criminal convictions. So far, completely unremarkable.
You get yourself into serious trouble with the law. You have been purchasing quantities of chemicals online for the purpose of converting these into Hexamethylene Triperoxide Diamine (“HMTD”), which is a high explosive compound and, it should go without saying, very dangerous.
In these days of heightened awareness of terrorism and the threat from these types of activities, your behaviour is not very sensible. It is perfectly understandable that you might be viewed as a serious threat to national security – as well as a more immediate threat to the safety of your neighbours (you have been causing small explosions in your back garden).
Following a search of your home by Police (who are in possession of a warrant), you are charged under Section 4(1) of the Explosive Substances Act 1883 (legislation which also applies in Scotland).
Section 4(1) states as follows:
“Any person who makes or knowingly has in his possession or under his control any explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be guilty of an offence …”
You claim you’re not a terrorist, but why on earth would someone like you want to manufacture a high explosive compound such as HMTD? The potential consequences for you are severe if convicted: a maximum sentence of life imprisonment.
By the way, it gets worse, because you are also charged under Section 58 of the Terrorism Act 2000 e.g. because you collect or make a record “of information of a kind likely to be useful to a person committing or preparing an act of terrorism.”
This is exactly what happened to Chez Copeland, who at one point wished to join the Armed Forces, but due to his disability was prevented from choosing such a career.
Let’s go back to Section 4(1) of the Explosives Substances Act 1883 and examine its wording: is there any possible defence for your actions?
Perhaps. The suspect must be able to show that he has the substance in his possession or under his control for a “lawful object”.
So, the key question here is why would this young man want to have explosive materials in his possession? We’re asking a question about his mindset: does he have the necessary mens rea (guilty mind) to commit a crime? We know that the actus reus (the wrongful act) is present, but this is not a strict liability crime – it is essential for the prosecution to establish what was the intention of the accused.
In his defence, the accused provides us with some background. He was hugely influenced by the Oscar winning film The Hurt Locker (directed by Kathryn Bigelow) which is about an American bomb disposal unit operating in Iraq. Ever since seeing the film, the accused has been fascinated about the science behind explosives and bomb making. He indulges in role-playing and develops an obsessive interest in this area.
Far from being involved in terrorist or criminal activities, the behaviour of our accused is firmly grounded in good old fashioned (and honest) scientific enquiry. He is, therefore, following the well trodden path of scientific discovery and experimentation.
Preparatory Hearing at the Crown Court
Sadly, for our accused, a preparatory hearing at Birmingham Crown Court does not bode well. His Honour Judge Mark Wall QC is not minded to permit the defence that the HTMD was in the possession or under the control of the accused for a “lawful object”.
Our accused appeals to the English Court of Appeal (Criminal Division) where his proposed defence is also rejected. The Appeal Court judges (Sir Brian Leveson P, Elisabeth Laing and Whipple JJ), like Judge Wall QC, place huge significance on an earlier precedent – R v Riding  EWCA Crim 892. Let us proceed further …
The Riding precedent
In Riding, the accused had made a pipe bomb because, as he stated in his evidence: “I was curious and just experimenting.” As the Court of Appeal noted in this case:
“The judge ruled that the reason that the defendant gave, that is to say curiosity whether he could construct it or not, was not capable of amounting to a lawful object and he so directed the jury.”
According to the Court of Appeal, this was the correct approach taken by the judge in the Crown Court. The defendant (Riding) was therefore guilty of an offence:
“The short point in the case is whether it is correct that a lawful object is simply the absence of criminal purpose. We are satisfied that that is not what the Act says. The Act requires that if you are found in possession or have made an explosive substance in circumstances in which there is a reasonable suspicion that there is no lawful object, it is an offence unless there was in fact some affirmative object which was lawful. That is, as it seems to us, an entirely unsurprising provision for a statute to make, given the enormous danger of explosive substances generally.”
Appeal to the UK Supreme Court
It would appear, therefore, that Chez Copeland’s prospects of avoiding a conviction and possible prison sentence were pretty bleak – if you follow the logic of the Riding precedent.
There was one chink of light for our accused, Mr Copeland, an appeal to the UK Supreme Court (and leave was duly granted by the Court of Appeal).
Lord Sales (delivering the majority opinion of the Court – Lords Lloyd-Jones and Hamblen dissenting) held that Copeland was permitted to use the defence that his possession or control of the explosive substance was for a “lawful object”.
His Lordship then went on to detail the history of legislation which had regulated the personnel possession of gunpowder (and later explosives) by an individual. Significantly, he noted that:
“In fact, there is a long and well-established tradition of individuals pursuing self- education via private experimentation in a range of fields, including with chemicals and explosives.”
Interestingly, the Explosives Substances Act 1875 (predecessor of the Explosive Substances 1883 Act) acknowledged such legitimate purposes. The 1883 Act had been passed hastily to reassure a British public terrified of the actions of militant Irish Republicans.
The new Act was primarily geared towards the creation of additional criminal offences and, from my interpretation of Lord Sales’ historical summary, it’s hard to infer that the Westminster Parliament was breaking with long established tradition and thus making the mere possession of explosive material a criminal offence. If Parliament had intended this, it would have done so.
The practical regulation of the use and storing of explosives is currently addressed by the Explosives Regulations 2014 and, the Explanatory Memorandum which accompanies these, clearly acknowledge that private individuals may lawfully manufacture or be in possession of explosive substances for their own personal use. That said, individuals who are manufacturing or storing explosive materials must be aware of the relevant guidelines which are presently in force.
Critically, Lord Sales was of the view that experimentation and self-education (which includes satisfying an individual’s curiosity) are lawful objects. This is well within the ordinary and every day meaning of the words “lawful object” in the 1883 Act. A defendant (such as Chez Copeland) will, therefore, be entitled to present this defence at trial, but of course a jury will have to weigh up the evidence presented and arrive at its own conclusions.
Interestingly, Lord Sales observed that in R vRiding , the Court of Appeal had correctly dismissed the defendant’s appeal on the facts – the defendant (Riding) did not have a lawful object in proceeding to build a pipe bomb. Where the Court of Appeal had fallen into error in Riding, was to approach the remark that “mere curiosity simply could not be a lawful object in the making of a lethal pipe bomb” as effectively a “proposition of law” rather than treating this as a purely factual statement.
The two dissenting Justices – Lords Lloyd-Jones and Hamblen – were strongly in agreement with Judge Wall (in the Crown Court) and the Court of Appeal:
“Such detonations involve an obvious risk of causing injury and damage to property and causing a public nuisance. For such experimentation to be capable of being lawful it would be necessary to particularise how it was to be carried out so as to avoid any such risk or how it would otherwise be lawful.”
Their Lordships went on to say:
“We consider that the vague and generalised statements referring to personal experimentation and private education, whether considered individually or taken together, fail to provide sufficient particularity of how these claimed objects were to be carried out lawfully.”
That said, the views of Lords Lloyd-Jones and Hamblen did not prevail and Chez Copeland’s appeal was permitted to proceed.
The Explosive Susbtances Act 1883 and the Explosives Regulations 2014 and, the Explanatory Memorandum clearly acknowledges that private individuals may lawfully manufacture or be in possession of explosive substances for their own personal use.
In R v Copeland , the UK Supreme Court has now ruled that experimentation and self-education (which includes satisfying an individual’s curiosity) are lawful objects. This is well within the ordinary and every day meaning of the words “lawful object” in the 1883 Act.
That said, individuals who are manufacturing or storing explosive materials must be aware of the relevant guidelines which are presently in force which impose upon them a heavy duty of responsibility to take care for the safety of other people and their property.
A defendant (such as Chez Copeland) will, therefore, be entitled to present the defence in Section 4(1) of the 1883 Act at a trial that explosive substances were in his possession or under his control for a “lawful object”. A jury will, of course, have to weigh up the evidence presented and arrive at its own conclusions on the facts.
Links to the Court of Appeal’s decision in R v Riding  and the UK Supreme Court’s decision in R v Copeland  respectively can be found below:
A question I have been pondering quite a lot recently amounts to the following:
‘Is it ever ok or acceptable to break the law in order to change it?’
All sorts of fanatics and the downright criminal will often portray their behaviour as serving a higher purpose when what they mean is that it is entirely self-serving on their part.
The question is extremely contentious (not to say highly subjective), but not as off the wall or leftfield as you might first think.
Current events that’s why. Pressure groups like Extinction Rebellion, with its programme of environmental activism, are sincerely committed in their beliefs and they have the weight of scientific evidence on their side regarding the threat of climate change. However, it is highly debatable to what extent the public will support their tactics which involve a range of public order offences e.g. blocking major roads and disrupting the transport system. The activists argue that climate change is such an existential threat that any and all means are necessary to give the wider public the necessary wake up call which will swing the pendulum firmly in favour of more sustainable and environmentally friendly approaches to the way in which society is organised.
Taking the law into your own hands?
We have been here before, in fairly recent times, with groups such as the Campaign for Nuclear Disarmament (CND); animal rights activists; and campaigners against GM food taking direct (and often unlawful) action against the objects of their ire.
A case I remember very well where this sort of direct action occurred was Lord Advocate’s Reference Number 1 of 2000 Scot HC 15 (30th March, 2001).
In this case, three anti-nuclear weapons protesters (part of the Ploughshares movement) were accused of illegal entry to a ship (‘Maytime’) which was anchored on Loch Goil in June 1999. The ship had a support role in relation to Royal Navy submarines carrying Trident missiles.
The protesters faced criminal damage and theft charges in relation to equipment which was on the ship. In their defence, the protesters claimed that their actions were justified because they were attempting to draw attention to the British Government’s continued possession of nuclear weapons – a situation which the protesters argued was a crime under international law. Now, there is some merit to this argument as the American led invasion of Iraq in March 2003 was based on the premise that the then Iraqi regime of Saddam Hussein was in possession of weapons of mass destruction (which were never found and doubtless never existed).
At the trial at Greenock Sheriff Court, Sheriff, Margaret Gimblet, directed the jury to return a not guilty verdict in relation to several of the charges. As for the remainder of the charges, the jury found the protesters not guilty. The Sheriff Gimblet was extensively criticised for the way in she had directed the jury to return not guilty verdicts. It was felt that this judgement would give the green light to other peace protesters to carry out similar acts as part of their ongoing nuclear disarmament campaign.
The Lord Advocate, therefore, felt it necessary to refer the case to the High Court for clarification where it was held that the protesters were not justified in their actions.
A link to the opinion of the Appeal Court can be found below:
The three Loch Goil anti-nuclear protesters had some recent inspiration for their actions from their colleagues. In January 1996, four protestors (part of the Ploughshares group) had broken into a British Aerospace facility and destroyed the controls of a Hawk Jet which was bound for Indonesia. The Indonesians, at this time, ruled East Timor (now an independent state) and were engaged in a bitter armed struggle with East Timor liberation groups.
The protestors claimed that the jet would almost certainly have been used by the Indonesian military as part of their operations in East Timor. By wrecking the jet’s controls with a sledgehammer, the protestors were committing an act of criminal damage (worth an estimated £1.5 million) undoubtedly, but they had done so in order to save lives. They argued that their actions were justified in terms of the UK Genocide Act 1969 (since repealed).
The four women had deliberately filmed the incident and waited at the scene of the crime to be apprehended. You would be forgiven for thinking open and shut case …
… The jury at Liverpool Crown Court acquitted the four protestors of all charges in July 1996 finding that their actions had been reasonable in terms of the Genocide Act.
A video made by the Ploughshares Group about the incident can be found below:
A link to an article The Independent’s website about the conclusion of the protestors’ trial on can be found below:
Interestingly, almost 21 years later, Sam Walton, a Quaker pacifist was suspected of attempting to disarm a Typhoon fighter jet at a British Aerospace facility which he believed was for the Saudi Arabian Air Force. Walton’s argument was, again, very similar to previous examples of direct action: he was trying to save lives. He argued that there was a high probability that the jet would be used in Saudi military operations in the vicious conflict in the neighbouring country of Yemen.
A link to an article in The Independent about Sam Walton can be found below:
Breaking the law to change it has a long pedigree and the current debate about the tactics of Extinction Rebellion inspired me to review historical situations where people had broken the prevailing law of the land only later to be held up as champions of freedom and progress.
In the last few days, I finally got around to viewing a German film called 13 Minutes (released a few years ago) which was about an attempt on the life of Adolf Hitler on 8 November 1939 in Munich. No spoilers intended (or needed), but the plot failed.
Hitler left the Munich Beer Hall 13 minutes before a bomb, planted in the building by Georg Elser, detonated. People were killed, but not Hitler and the question has persisted as to what would have happened if the assassination had succeeded?
In my humble opinion, I don’t think it would really have mattered as there were plenty of fanatics within the Nazi regime (e.g. Heinrich Himmler and Reinhard Heydrich) who were more than capable of replacing Hitler and furthering his goals.
I did know that the would be assassin, Elser, had been caught in the aftermath of his failed attempt. What I didn’t know was that Elser survived as a special prisoner in Dachau Concentration Camp until April 1945 when he was murdered (he had, in fact, never been tried by the Nazis). Ironically, he outlived one of his interrogators, SS Police General, Artur Nebe, who was executed in March 1945 for involvement in the Plot to assassinate Hitler in July of the previous year.
Clearly, by the prevailing laws of the Third Reich, Elser was a traitor as he had attempted to kill the then German Head of State. History, however, has been much kinder to Elser and he is now viewed as an anti-Nazi resistance fighter of great courage – not an opportunist as Artur Nebe clearly was.
Chartists and Suffragettes
This led me to think about other situations in the past where people fought for their beliefs by breaking the law e.g. the Chartists in the 19th Century who fought for greater democracy in the UK; and the Suffragettes in the late 19th and early 20th Centuries who campaigned for women to be given the right to vote. Nowadays, the Suffragettes particularly are held up as an example of a group of highly principled and determined people who wanted to overcome a glaring injustice.
It’s often forgotten that the Suffragettes moved quickly from peaceful protests to downright terrorist acts e.g. in 1913, the bombing of a house being built for Lloyd George MP, then Chancellor of the Exchequer (or UK Finance Minister). This was followed by bombs being planted at the Bank of England and in St. Paul’s Cathedral.
According to the historian Lucy Worsley, in 1913 alone, there were 168 arson attempts and bomb attacks carried out by Suffragettes across Britain and Ireland. Worsley estimates that the cost of this damage was £56 million in today’s prices. By February 1914, 1,241 prison sentences had been served by Suffragettes and 165 women who had been on hunger strike had been forcibly fed while in prison.
Did these acts of violence lead to votes for women? This is very contentious and historians, such as Worsley, point more to the transformative impact of World War I as the real catalyst for social (and legal) change. How so? Very simply, the need to recruit women into areas of the economy which previously had been the almost exclusive preserve of men (who, of course, were away at the Front fighting the War).
So, I suppose the answer to my original question is it ever acceptable to break the law to change it depends on which side of history you end up: whether you’re ultimately a winner or a loser.
It also depends on the methods used to achieve legal change. Figures such as Mahatma Gandhi who worked towards the end of British rule in India are held up as exemplars because they used peaceful methods. Other figures such as Eamon de Valera and Michael Collins of the IRA are still, to this day, regarded as extremely controversial in their pursuit of armed struggle against the British Empire in order to obtain independence for what would eventually become the Republic of Ireland.
In 2016, the centenary of the Easter Rising was marked by the Irish Government in Dublin. The Rising is regarded as one of the corner stones of the modern Irish Republic, but how do you mark or ‘celebrate’ what was undoubtedly a violent event? With great sensitivity is the answer and the Irish Government was widely praised for unveiling a memorial which listed everyone (including Irish Republicans and British Army personnel) who lost their lives as a result of the events of Easter Week 1916.
As for Extinction Rebellion? Well, history will be the judge …
Should the accused in a criminal trial enjoy the presumption of innocence?
This is a long established principle of criminal law in the Western World that I have taken for granted since my first days at university. I always remember Professor Kenny Miller (of Strathclyde University’s Law School) correcting students who spoke in error about the ‘guilty’ person in a Scottish criminal trial. They were quickly admonished and reminded of the maxim that everyone is innocent until proven guilty.
Indeed, Article 11 of the United Nations’ Universal Declaration of Human Rights takes the view that the presumption of innocence is a fundamental human right.
Furthermore, Article 6 of the European Convention on Human Rights establishes the right to a fair trial and this includes the presumption of innocence. In the United Kingdom, this very important right has been incorporated into Scots, English and Northern Irish law via the Human Rights Act 1998. In Scotland, we, of course, have an additional layer of protection with the Scotland Act 1998.
Article 48 of the EU Charter of Fundamental Rights also echoes Article 6 of the European Convention.
Going back to the historical record, the Byzantine or Roman Emperor Justinian I emphasised the presumption of innocence for the accused as part of codification of Roman Law between 529-534 CE. Admittedly, Justinian was building on previous Roman legal practice as the Emperor Antoninus Pius (he of the less well known Wall for our Scottish readers) had introduced the principle during his reign between 138 and 161 CE.
The Romans would say Ei incumbit probatio qui dicit, non qui negat; translated as Proof lies on him who asserts, not on him who denies.
Jewish and Islamic scholars have, historically, also placed huge importance on the presumption of innocence as a cornerstone of their legal practices. Both the Jewish Talmud and Islamic Hadiths (sayings or practices of the Prophet) testify to this.
The Carlos Ghosn Affair
So, why am I reflecting on this area this dull and rainy second day of the New Year?
The escape from Japan of Carlos Ghosn brought the principle forcibly to mind this New Year. Mr Ghosn is the former Chief Executive of Nissan who has been accused of defrauding his former employer.
Mr Ghosn was under effective house arrest in Japan until a few days ago. Allegedly, with the help of his wife, he escaped from that country to the Republic of Lebanon (of which he is a citizen) The escape reads like something from a Hollywood movie script (the Mission: Impossible series anyone?) with Mr Ghosn hiding in a musical instrument case (presumably not a violin case) in order to make good his unauthorised exit from Japan.
A link to an article about Mr Ghosn’s escape in The Independent can be found below:
What is Mr Ghosn’s motivation for leaving Japan in this dramatic way? He claims to have no faith in Japanese justice in that the legal system of that country presumes his guilt.
The Japanese criminal justice system
Not possessing a great deal of knowledge about Japanese criminal practice, I admit that I was somewhat intrigued by Mr Ghosn’s assertions.
I had also just finished reading Owen Matthew’s excellent biography* of Richard Sorge, probably the most successful spy in modern history (and a possible role model for James Bond). Sorge had been spying for the Soviet Union in Japan in the 1930s and 1940s until he was unmasked and arrested in 1941. The treatment of Sorge at the hands of the Japanese criminal justice authorities forms part of the climax to the book.
As Owen Matthews notes:
‘Japanese justice, surprisingly, for an authoritarian state, turned out to be both thorough and scrupulous. The three volumes of investigative documents prepared by the Tokko [the Japanese Police] are exhaustive, far more professional than the cursory evidence which the NKVD [the forerunner of the Soviet KGB] assembled to convict hundreds of thousands of suspected spies in the 1930s.’ [p345]
Does the Japanese criminal code presume the guilt of persons on trial, as opposed to their innocence?
I decided to investigate …
… what I discovered was something rather more subtle.
The Japanese legal system does recognise the right of the accused to be presumed innocent until proven otherwise – despite Mr Ghosn’s claims. The burden of proof rests on the prosecution to demonstrate the guilt of the accused (as in Scotland, England, the United States etc).
There are indeed criticisms of the Japanese legal system that could be made (but no legal system is immune from criticism). In particular, the practice of not allowing suspects to have access to a lawyer during Police interrogation has been highlighted as a weakness of the system.
Before Scots lawyers get too smug, we would do well to remember the Peter Cadder case which led to an overhaul of Scottish criminal practice (see Cadder v HMA  UKSC 43).
Another criticism of the Japanese legal system seems to centre around the practice of prosecutors rearresting an accused when s/he has been acquitted by a lower court. The accused is then taken before a superior criminal court for a further trial and, possibly, conviction.
That said, in Scotland (and in England), we have abolished the double jeopardy rule, but this does not mean that prosecutors have free range to do what they like.
Finally, an accused who maintains his/her innocence under the Japanese legal system, is often not granted bail and can therefore be expected to undergo a lengthy period of detention until the case is brought to trial (Mr Ghosn was perhaps luckier than most being under house arrest). Critics of this aspect of the legal system have pointed out that it puts suspects under duress making them more likely to make an admission of guilt. Mr Ghosn had apparently spent 120 days in detention before bail (with very strict conditions) was granted last year.
Links to articles about the Japanese legal system from the local media can be found below:
The principle of presuming the innocence of the accused in a criminal trial until proven otherwise is a deeply rooted one in the Western World. It is a cornerstone of our justice systems. The United Nations regards it as a fundamental human right in terms of the Universal Declaration of Human Rights.
Yet, to assume that it is a Western concept alone, would be a monstrous conceit. Jewish and Islamic legal scholarship have both emphasised the importance of this principle.
Japan, as a member of the United Nations, also recognises the importance of the principle – which makes some of Mr Ghosn’s claims somewhat misjudged. Yes, the operation of the Japanese criminal justice system can and is the subject of criticism, but this observation also applies to every other legal system in the World.
* “AnImpeccable Spy – Richard Sorge – Stalin’s Master Agent” by Owen Matthews (Bloomsbury Publishing: 2019)
The law has always had to deal with technological advances and these developments are often presented in a way which shows the legal system all too often playing catch up. The chronic problem of identity fraud is a case in point.
What if, however, we look at things from a different angle? Could the law use technology to its advantage?
Alexa, there’s been a murder!
Recently, I was intrigued by a story from the American State of Florida. In November 2019, it was widely reported that the Police in Florida had been able to solve a murder. Nothing particularly unusual about that, but it was the circumstances surrounding the murder which I found striking.
Adam Reechard Crespo was accused of murdering his girlfriend, Silvia Galva when she sustained a knife wound to her chest. Broward County Sheriff Department led the investigation into Ms Galva’s death and Crespo was the prime suspect.
The Sheriff’s Department was particularly anxious to obtain access to Crespo’s Amazon Echo speaker (which is connected to Amazon Alexa). It was believed that the transcripts of the recordings would shed vital evidence on the circumstances of the crime and the relevant search warrants were duly obtained by the officers of the law.
Interestingly, Crespo’s defence lawyers were also keen to have access to the Alexa transcripts in the belief that they might establish his innocence.
A link to the story on the Sky News website can be found below:
Before we get carried away, it’s useful to remember that forward thinking legal professionals (the police; defence and prosecuting lawyers) have always been keen to use technological advances in support of their work.
Some years ago, I was reading an article in The Derry Journal from Northern Ireland which recounted the story of the first murder trial in British legal history where photographic evidence was used. The accused was Father James McFadden, a Roman Catholic priest who was suspected of involvement in a conspiracy to murder William Martin, a Royal Irish Constabulary Inspector, in Gweedore, County Donegal in February 1889 (the locality was still part of the United Kingdom of Great Britain and Ireland).
The murder took place against the backdrop to the so called Donegal Sheep Wars where wealthy landowners were driving their tenants off their estates in order to prioritise sheep farming. In this way, the situation was very similar to what happened in Scotland during the Highland Clearances. Father McFadden was a prominent supporter of the Irish Land League which was a political and social movement which campaigned against the actions of the landowners.
Anyway, back to Father McFadden’s fate: he was eventually acquitted of murder by the Court thanks, in no small part, to photographs which had been taken by the Glasgow born, James Glass (now residing in Derry). The priest’s defence lawyers had approached Glass to take a series of pictures of rural life in County Donegal. Their intention in doing so was to provide context to the case i.e. the harshness of day to day living for many people in that part of the world. Father McFadden eventually agreed to plead guilty to the far lesser charge of obstructing Police officers (for which he served 9 months in total in Derry Gaol).
A link to the article in The Derry Journal about Father McFadden’s trial can be found below:
In 1910, Dr Harvey Hawley Crippen was attempting to flee English justice. The doctor had murdered his wife and had taken passage on the liner, Montrose, which was sailing to Canada.
Crippen was travelling under a false name and had attempted to disguise himself. The Captain of the ship recognised Crippen and his lover (who was disguised as a boy in order to pass herself as the doctor’s ‘son’).
Captain Kendall ordered the ship’s telegraphist to send a message with this intelligence to Scotland Yard. This was fortunate because the ship had not yet left the telegraph range of the British Isles. Had the Captain made the discovery later, the story might have had a very different outcome.
Upon receiving this news, Chief Inspector Dew, who was leading the murder investigation, boarded a faster liner, SS Laurentic, which arrived in Canada before the Montrose. The good Chief Inspector boarded Montrose as it came into the St Lawrence River (he was disguised as a river pilot). The Captain of the Montrose had, by now good reason to believe that the fugitives would be caught. He invited the pair to meet the pilots as they were boarding the vessel. At that point, Chief Inspector Dew revealed his true identity. Dew was able to effect Crippen’s arrest because Canada was, at this time, still a Dominion of the British Empire.
Doctor Crippen was sent back across the Atlantic to England where, following his trial at the Old Bailey, he was executed by hanging at Pentonville Prison.
DNA evidence was first used in 1986 to convict Colin Pitchfork of the rape and murder of two girls (which had occurred 3 years earlier in the Leicestershire area of Narborough). Sir Alec Jeffreys, a genetic scientist, had made the fortuitous breakthrough that DNA could be used to solve crimes as part of his research. Crucially, the test which Jeffreys developed helped to clear the name of an other suspect in the investigation (Richard Buckland).
A link to an article in The Guardian reflecting on the 30th anniversary of this momentous effect of DNA profiling can be found below:
The contribution of DNA as corroborative evidence was powerfully brought home to me in a fairly recent Scottish murder trial and appeal before the High Court of Justiciary in which a 30 year old murder was finally solved (see Her Majesty’s Advocate v John Docherty ; and John Docherty v Her Majesty’s Advocate HCJAC 49 HCA/2014/3517/XC).
I have to confess more than a slight interest in the case: my father was a member of the CID team which worked on it during the mid 1980s.
In 1986, Elaine Doyle aged 16, was found murdered near her home in Greenock. Despite an extensive Police investigation, the murderer was never caught. Hopes of a breakthrough to this unsolved murder seemed to dwindle as the years went by.
Until a breakthrough came unexpectedly (and somewhat sensationally) in 2012 when John Docherty was identified as a suspect.
As Lord Carloway, the Lord Justice General, noted crime scene officers at the time of the murder had collected DNA evidence – the value of which would only become apparent nearly 3 decades later:
‘The principal evidence against the appellant [John Docherty] came, first, from matches between the appellant’s DNA, ultimately obtained in 2012, and cells captured on tape applied to the body of the deceased as it lay in the lane shortly after its discovery.’
As Lord Carloway, the Lord Justice General also remarked in the murderer’s appeal against conviction and sentence (in 2016):
‘The protection of the crime scene in 1986 was not as it would be today. By coincidence, an early part of the investigation at the scene was video recorded, in what was then a pioneering experiment. This was in the days before DNA profiling had captured the imagination of criminal investigators; modern processes only having been developed two years later.’
It was during a review of the tape sample in 2008 (when the extraction of DNA from older samples had greatly improved) that the first steps towards a tentative breakthrough arose. In 2011 and 2012, a review of the index of names held by the Police led to John Docherty being traced. In 1986, a friend of Docherty’s had identified him as a person of interest in a statement to the Police. Regrettably, Docherty was never questioned. When this omission came to light during the cold case review in 2011/12, Docherty was asked to provide a voluntary sample of DNA to the Police – along with the hundreds of other local men who were viewed as potential suspects. Docherty actually provided two samples and these matched the cells captured on the piece of tape taken from the crime scene in 1986.
Docherty was finally brought to justice in June 2014 when, after a 52 day trial at the High Court of Justiciary in Edinburgh, he was convicted of the murder of Elaine Doyle. Sadly, Elaine’s father never lived to see this day.
Although Docherty’s defence team challenged the DNA evidence on the grounds that the 1986 sample could have been contaminated and was therefore unreliable, the jury (by majority verdict) clearly was of the opinion that the Crown’s evidence proved beyond reasonable doubt that he was the murderer.
A link to the judgement of the Appeal Court of the High Court of Justiciary can be found below:
Finally, CCTV evidence has been used successfully by the prosecution to obtain convictions. In earlier Blog (Corroboration published on 1 March 2019), I discussed the use of CCTV footage in relation to the appeal of Jacqueline Shuttleton against a conviction for careless driving in terms of the Road Traffic Act 1988 (see Jacqueline Shuttleton v Procurator Fiscal, Glasgow  HCJAC 12 HCA/2019/20/XC).
In the Shuttleton appeal, reference was made to an earlier decision – Gubinas & Radavicius v HMA  SCCR 463.
Gubinas & Radavicius contained a very interesting statement (at paragraph 59) which became known as the “Cluedo” reference (after the well known murder mystery board game):
“….once the provenance of the images is shown, they become real evidence in causa which the sheriff or jury can use to establish fact, irrespective of concurring or conflicting testimony. Even if all the witnesses say that the deceased was stabbed in the conservatory, if CCTV images show that he was shot in the library, then so be it.”
Although technology can often be portrayed as leaving the Police and the legal profession playing catch up, there can be no doubt that when the potential of these developments is appreciated they can be of great assistance to the cause of justice. In particular, advances in photographic and CCTV evidence and DNA and fingerprint samples have undoubtedly been of great service to criminal law – for both the prosecution and the defence.
What if criminal law lets down victims (and by extension their families)? Over the past year, several of my Blogs have looked at situations where the Crown Office and Procurator Fiscal Service have either not succeeded in prosecuting a suspect in a criminal case or have declined to do so.
In Scotland, the ability to bring a private prosecution is heavily restricted making it almost an impossible task to obtain the necessary authorisation from the High Court of Justiciary (via a Bill of Criminal Letters).
Victims (or their families) will often then have little choice but to turn civil law for some sort of resolution – usually an action for compensation.
I often emphasise to students that criminal and civil law have very different objectives: criminal law is used by the State to punish those individuals who would threaten the safety or security of the community by their actions; civil law, in this context, is primarily concerned with compensating the victims of a wrongful act.
Admittedly, certain types of conduct can be both criminal and civil in nature e.g. assault, dangerous driving, fraud and theft. This means that an individual could face the prospect of two trials. The outcome of each trial is independent of each other.
It is also worth remembering that criminal and civil law have different standards of proof. In a criminal trial, the prosecution must prove beyond reasonable doubt that the accused is guilty of a crime; in civil law, the claimant (or pursuer) must show on the balance of probabilities that the respondent (defender) was responsible for the harm caused. The civil standard of proof is therefore a lower standard of proof.
So, it was of some interest that, in the last week, two stories were widely reported in the media which highlighted the difference between the two systems.
In the first story, it was established that John Downey, a former member of the Irish Republican Army, bore responsibility for the deaths of four members of the Household Cavalry (two British Army regiments) in July 1982. An IRA active service unit had planted a car bomb in London which had caused these fatalities. Downey was a member of that unit, but he had immunity from criminal prosecution under the terms of the Belfast (or Good Friday) Agreement 1998. The families of the victims had no alternative but to raise a civil legal action in the English High Court in order to establish that Downey was an active participant in the planning and execution of the bombing. The success of this action means that the families can now pursue Downey for damages (see Sarah Jane Young v John Anthony Downey  EWHC 3508 (QB)).
It is important to stress that this judgement establishes Downey’s civil liability for the deaths of the four serving members of the British armed forces; it does not establish criminal liability.
A link to the judgement of the English High Court can be found below:
The second story is from further afield and involves a female, Japanese journalist (Shiori Ito) who successfully sued a male TV journalist (Noriyuki Yamaguchi) who had raped her. This case broke many taboos in Japan because victims of rape tend not to publicise their ordeal. Again, the decision of Tokyo’s District Court establishes Yamaguchi’s civil liability for rape – not criminal liability.
In Scotland, of course, we have had two recent civil actions whereby victims of rape have successfully pursued their attackers for the right to receive compensation. It might not be the ideal solution, but in the absence of any action on the part of the State prosecution authorities, it may be the only recourse to justice that the victims have.
Links to media articles about the two cases can be found below: