Lord Advocate – Seán Crossan's Scots Law

Down with corroboration (I say)!

Who’s ‘I’? Amanda Pinto – that’s who, but more about her later.

In Scottish criminal procedure, we place a great deal of emphasis on the principle of corroboration. In a criminal trial, the prosecutor must prove that the accused is guilty of a crime beyond reasonable doubt. This is a very strict burden and, in Scotland, the prosecution achieves this standard by corroborating its evidence against the accused. Corroboration means that there must be at least two independent sources of evidence such as witness testimony and the use of expert and forensic evidence. Reasonable doubt is a nagging doubt which would lead a reasonable person to the conclusion that it would be unsafe and unjust to find the accused guilty.

Not every legal system places such importance on the principle of corroboration: some of our English brethren seem (very) disinclined to follow us.

This week, distaste for corroboration has been voiced somewhat forcefully by Amanda Pinto QC, the incoming Chairperson of the Bar Council of England and Wales (the English equivalent of the Faculty of Advocates). Ms Pinto represents some 16,000 barristers and her views are therefore not to be dismissed easily.

Of particular concern to Ms Pinto seems to be UK Government proposals to introduce an element of corroboration into English criminal legal practice. Speaking to Jonathan Ames of The Times (of London), her main objection to the introduction of corroboration appears to be in relation to rape trials:

“We’ve rightly come away from requiring corroboration [in England and Wales],” she says. “Because if you require corroboration in something that is typically between two people, then you restrict access for justice for some victims entirely.”

Several years ago in Scotland, we also had a discussion on the merits of the continued use of corroboration in criminal proceedings. Lord Carloway (now the Lord Justice General), Police Scotland and the Crown Office and Procurator Fiscal Service were of the opinion that this requirement should be abolished. Significantly, the Faculty of Advocates and the Law Society of Scotland were opposed to this development. Warnings of possible miscarriages of justice were raised if this was allowed to happen. Corroboration was retained.

Nore recently (in 2019), groups representing survivors of sexual abuse made powerful and emotional submissions to the Scottish Parliament arguing that the requirement of corroboration be abolished. We still have the principle in place in Scotland.

Responding to these submissions by abuse survivors, Brian McConnochie QC, a senior member of the Faculty of Advocates went on record defending the current evidential requirement:

“I know that some people consider that corroboration is something which we ought to abandon or abolish, and as often as not the argument is given that it should be abolished because nobody else has it. I’ve never been convinced by that argument. We went through a process where it was discussed at significant and considerable length, and at the end of that process the decision was taken that it should go no further.”

James Wolffe QC, the current Lord Advocate (head of the Scottish prosecution service) has openly stated that a review of corroboration could be on the cards, but Gordon Jackson QC, current Dean of the Faculty of Advocates has voiced the Faculty’s continuing opposition to such a development:

https://www.scottishlegal.com/article/lord-advocate-hints-at-renewed-attack-on-corroboration

Related Blog Articles:

https://seancrossansscotslaw.com/2019/04/22/scrap-corroboration/

https://seancrossansscotslaw.com/2019/03/01/corroboration/

https://seancrossansscotslaw.com/2019/12/28/alexa-theres-been-a-murder/

Copyright – Seán J Crossan, 9 January 2020

Homicide?

Photo by Valentin Salja on Unsplash

For my latest Blog, I’m sticking with Scotland’s public prosecution system.

The Lord Advocate, James Wolffe QC, has just won an interesting ruling before the Appeal Judges of the High Court of Justiciary.

The case in question is Crown Appeal under Section 74 by Her Majesty’s Advocate v Jason Gilmour [2019] HCJAC 74 HCA/2018/000542/XC.

The reason for the Crown’s appeal was that Mr Gilmour’s victim had subsequently died.

The simple question was this: could the Crown, having accepted Mr Gilmour’s guilty plea to the charge of aggravated assault, then pursue a subsequent prosecution against him for murder?

As Lady Dorrian, the Lord Justice Clerk (Scotland’s second most senior judge) noted:

“The charge of murder alleges that on 11 June 2012 the respondent [Gilmour] assaulted the deceased by repeatedly punching him on the head causing him to fall to the ground, and then kicking, stamping and jumping on his head, whereby he was so severely injured that he died almost five years later on 17 April 2017.”

Before the introduction of the Double Jeopardy (Scotland) Act 2011, it was a clearly established principle of Scottish criminal law that an accused who had assaulted a victim could be charged subsequently with either culpable homicide or homicide if the victim later died due to the injuries sustained by reason of the assault.

The introduction of the Act meant that some clarification of the law was required.

As Lady Dorrian, the Lord Justice Clerk stated in response to the Lord Advocate’s appeal:

“The rationale for this was that the crime of murder was a separate crime and “it cannot be said that one is tried for the same crime when he is tried for assault during the life, and tried for murder after the death, of the injured party”- HM Advocate v Stewart (1866) 5 Irv. 301. In Tees v HMA 1994 JC 12 the accused had pled guilty to a charge of assault under deletion of attempted murder, and was re-indicted for culpable homicide when the victim died.“

In delivering the Opinion of the Court, Lady Dorrian succinctly concluded that:

“Whatever may have been the position prior to the introduction of the 2011 Act … that Act makes it abundantly clear that it should now be possible to prosecute for murder even where there has been a prior prosecution for attempted murder. It is against that background that the Lord Advocate’s acceptance of the plea must be analysed. For this reason also we consider that the acceptance of the plea cannot be construed as the renunciation of a right to prosecute should the victim die.“

Section 11 was the key part of the 2011 Act and the intention of the legislation was clearly to permit the possibility of a subsequent prosecution of the accused for murder – even in situations where s/he had previously faced a charge of attempted murder and had been acquitted.

In early 2019, Mr Gilmour’s had been prosecuted for his victim’s murder. He was convicted of culpable homicide and sentenced to a prison sentence of four and a half years. This has now been upheld by the Appeal Court.

A link to the judgement can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019hcjac74.pdf?sfvrsn=0

Copyright Seán J Crossan, 14 November 2019

The public interest?

Photo by Karl Bewick on Unsplash

We have an independent criminal prosecution service in Scotland headed by the Lord Advocate (a Scottish Government Minister). James Wolffe QC, the current Lord Advocate, has responsibility for the Crown Office and the Procurator Fiscal Service.

Yesterday, the role of the Lord Advocate came under intense media scrutiny as a result of the decision of the Crown Office not to prosecute several Police Scotland officers who had been accused of causing the death of a man who had been taken into custody in 2015.

The deceased was 31 year old Sheku Bayoh, who was arrested by Police officers in the Scottish town of Kirkcaldy. It was later established in a post mortem that Mr Bayoh had consumed drugs (MDNA and Flakka).

On a more sinister level, Mr Bayoh was found to have 23 different physical injuries. The Bayoh family and their solicitor (Aamer Anwar) always maintained that the actions of Police officers had caused the death and that they should face prosecution for their actions.

To the dismay of the Bayoh family, the Lord Advocate has declined to pursue criminal charges against the Police officers as this would not be in the public interest.

Today, Humza Yousaf, the Scottish Government Cabinet Secretary for Justice decided to convene a public inquiry into the circumstances of Mr Bayoh’s death – which may be some small consolation to his still grieving family.

The Bayoh family may also be considering the possibility of a civil action for compensation against the Police officers who they are alleging have responsibility for the death.

This case is a timely reminder that it is the State (or the Crown) which has the ultimate power to determine who will be prosecuted for crimes – not the victim or the family of the victim.

The possibility of the Bayoh family being granted the right to initiate a private prosecution against the Police officers is unlikely. The High Court of Justiciary must grant permission, by way of a Bill of Criminal Letters, for any private prosecution to proceed in the first place.

It should go without saying that the prosecutor in a private prosecution will still have to prove the allegations against the accused.

Two fairly recent attempts to raise private prosecutions in Scotland have been rejected out of hand by the High Court of Justiciary (see Bill for Criminal Letters by (1) John and Linda Stewart and (2) Allan and Aileen Convey Against William Payne AND (1) Matthew McQuade and Jaceline McQuade and (2) Yvonne Reilly Against Henry Clarke [2016] HCJAC 122 HCA/16-2/XM HCA/16-3/XM).

A link to the Opinion of the High Court of Justiciary in respect of these matters can be found below:

https://www.scotcourts.gov.uk/search-judgments/judgment?id=d26a25a7-8980-69d2-b500-ff0000d74aa7

The most famous, partially successful private prosecution in Scotland in was the affair which became known popularly as the Glasgow Rape Case. In 1982, a rape victim was permitted to raise a private prosecution against three of her alleged assailants (see X v Sweeney (1982) JC 70).

Prior to this legal action, there had been one, other private prosecution in Scotland during the 20th Century and that matter had been concluded as far back as 1911 (the actual Bill of Criminal Letters was granted in 1909 – see J & P Coats Ltd v Brown 1909 6 Adam 19).

A link to a story about the Lord Advocate’s decision can be found on the BBC Scotland website:

Sheku Bayoh: Family feel ‘betrayed’ over decision not to prosecute officers

His family said they felt betrayed over the decision not to bring criminal charges against police officers.