Mr Salmond tholes his assize

Screen capture by Seán J Crossan from BBC Scotland’s website

Strange words i.e. uncommon: thole and assize.

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
  • Not proven
  • Guilty

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 to prove 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.

Alex Salmond cleared of all sexual assault charges

BBC Scotland has also been running a podcast about the Salmond trial (please see link below)

https://www.bbc.co.uk/programmes/p0864016/episodes/downloads

Related Blog articles:

https://seancrossansscotslaw.com/2020/02/15/oh-brother/

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

https://seancrossansscotslaw.com/2020/01/09/down-with-corroboration-i-say/

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

https://seancrossansscotslaw.com/2019/05/02/consent/

https://seancrossansscotslaw.com/2019/02/25/the-jury/https://seancrossansscotslaw.com/2019/12/28/alexa-theres-been-a-murder/

https://seancrossansscotslaw.com/2019/02/10/the-burden-of-proof/

https://seancrossansscotslaw.com/2020/03/15/kaboom/

Copyright Seán J Crossan, 23 March 2020

Consent?

Photo by Gemma Evans on Unsplash

A recent decision of the Appeal Court of the High Court Justiciary has provided further clarification on the law surrounding the issue of consent in situations where a person is accused of rape.

The decision itself is a classic example of Appeal Court judges interpreting the meaning of statutory provisions.

For many years in Scotland, rape had the following common law definition:

… a man having sexual intercourse with a woman by overcoming her will by force‘.

The above definition was later significantly amended by a majority decision of the Appeal Court of the High Court in Lord Advocate’s Reference No. 1 of 2001 2002 SLT 466. The effect of this ruling was the removal of the reference to force in the common law definition of rape. Thereafter, the presence (or absence) of consent to sexual conduct would be a vital issue for the prosecution’s case.

We have also moved on from the situation whereby the victims of rape are not just female. A reading of Section 1 of the Sexual Offences (Scotland) Act 2009 (the relevant legislation), which defines the crime of rape, makes it quite clear that men and women can be victims of this offence.

Section 12 provides that “consent” means “free agreement”. Section 13 states that free agreement is “absent” in certain circumstances, including where the complainer is “incapable because of the effects of alcohol or any other substance of consenting”.

I shall now turn to the case in question.

In GW v Her Majesty’s Advocate [2019] HCJAC 23 HCA/2018/423/XC, Lords Carloway, Menzies and Turnbull confirmed that a person who is asleep cannot give consent that s/he wishes to engage in sexual relations. Furthermore, their Lordships also ruled that such an individual cannot be deemed to have given prior consent to such a course of behaviour.

This appeal occurred because the partner (‘GW’) of a woman claimed that he had not raped her while she was sleeping. Part of his defence was that he had engaged in this type of conduct on previous occasions in the relationship and the woman had not objected to this behaviour. Furthermore, the partner claimed that such conduct was a continuing feature of their relationship and, therefore, as such it established a pattern of prior consent. In other words, the partner had a reasonable belief that the woman had consented to this type of sexual activity.

As previously discussed, the relevant legislation is the Sexual Offences (Scotland) Act 2009. What does consent actually mean? The judges were unambiguous in reaching their decision: a sleeping person is simply incapable of giving consent and, in such a situation, it is not possible for an accused to construe advance or prior notice of consent.

During their deliberations, the judges looked at the purpose of the Sexual Offences (Scotland) Act 2009 and considered evidence which had been presented to at Stage 2 of the passage of the Bill through the Scottish Parliament.

Lord Carloway, the Lord Justice General, in delivering the opinion of the Appeal Court stressed that the wording of Section 1(1)(a) and (b) of the Sexual Offences (Scotland) Act 2009 (which defines the crime of rape) uses the words ‘consenting’ and ‘consents’. These words are in the present tense and, therefore, a previous course of dealings between the parties is not in itself enough to establish that there is prior or actual consent to sexual relations. Consent exists in the here and now when the act of sexual intercourse is being carried out.

Section 14 of the 2009 Act which specifically addresses the issue of consent while a person is asleep is extremely unambiguous in its meaning. Subsection (2) states:

A person is incapable, while asleep or unconscious, of consenting to any conduct.’

A link to the judgement of the Appeal Court can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019hcjac23.pdf?sfvrsn=0&utm_source=Scottish+Legal+News&utm_campaign=f980cdec20-EMAIL_CAMPAIGN_2019_04_29_12_17&utm_medium=email&utm_term=0_07336e1dbf-f980cdec20-66775629

Copyright Seán J Crossan, 2 May 2019