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:
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)
Petitions for judicial review in respect of alleged breaches of Article 8 of the European Convention (right to respect for private and family life) submitted by serving prisoners seem to be very much in vogue.
At the beginning of December, we had the Court of Session dismissing a petition for judicial review submitted by William Beggs (the notorious ‘Limbs in the Loch’ killer (see William Frederick Ian Beggsv The Scottish Ministers  CSOH 95).
Some weeks later, another petition has been disposed of by the Court of Session which raised many of the same legal principles. David Gilday, another inmate of Her Majesty’s penal establishments, has proved to be no luckier than Beggs.
Gilday was complaining about a breach of his Article 8 rights when correspondence (a greetings card) addressed to him was seized by the prison authorities on suspicion that it was impregnated with unlawful (psychoactive) drugs. Suspicions had been raised when a sniffer dog gave the package more than usual attention.
Article 8 of the European Convention is not an absolute right and it may be limited by State authorities (in this case the Scottish Prison Service) for:
“… the prevention of disorder or crime and for the protection of health or morals.”
Lord Pentland in the Outer House of the Court of Session noted:
“… that prison officers sometimes come into inadvertent contact with psychoactive substances in prison and the view had been taken that the SPS has a duty not knowingly to expose its officers to the risk of being exposed to such substances. That stance seems to me to be responsible and proportionate. In my opinion, a wide margin of discretion should be extended to the SPS to identify what constitutes a risk in a prison setting and to determine how best to address that risk … As I have already explained, the petitioner will become entitled to receive the card in the sealed bag at the stage when he eventually comes to be liberated from custody. I am satisfied that retention of the card until then serves the legitimate aim of controlling the use and distribution of drugs in prison.”
Consequently, the petition submitted by Gilday should be dismissed as the prison authorities had acted quite legitimately in interfering with the prisoner’s rights under Article 8 of the European Convention.
A link to Lord Pentland’s Opinion (Petition of David Gilday for Judicial Review of the actions of the Scottish Ministers  CSOH 103) can be found below:
From today (29 November 2019), the age of criminal responsibility in Scotland rises from 8 to 12. This Act of the Scottish Parliament was only passed in May.
Before introducing the original Bill, the Scottish Government had previously carried out a public consultation about raising the age of criminal responsibility. This exercise opened on 18 March 2016 and closed on 17 June 2016.
The Scottish Government heralded the results of the consultation exercise as demonstrating overwhelming support for its proposal (95% of respondents agreed), but only 74 responses were received in total.
True, important organisations which are involved in the criminal justice system (such as Police Scotland, the Faculty of Advocates and the Law Society of Scotland) did respond, but many local authorities did not.
Links to a press release from the Scottish Government about the consultation and the report which resulted from it can be found below:
Historically, Scotland had one of the lowest ages of criminal responsibility in the Western World. The Act now means that Scotland falls more into line with other countries.
Not everyone thinks the Act goes far enough: Bruce Adamson, the Scottish Children’s Commissioner had argued that the reform should go further and that the age of responsibility for criminal behaviour should be raised to 14. Mr Adamson argued that this would bring Scotland into line with the international standard.
Interestingly, this reform means that England and Wales and Northern Ireland now have a lower criminal age of responsibility (10) than Scotland.
Examining the bigger picture, the number of children aged 8-11 who have been referred to the Children’s Reporter for committing an offence in Scotland has fallen dramatically from a high of about 800 (2010/11) to about 200 (2016/2017) as the Scottish Government’s own figures demonstrate (see below).
A link to the new Act of Parliament can be found below:
It is also worth emphasising that the scope of the new Act goes further than merely raising the age of criminal responsibility – as the preamble to the original Bill makes clear:
“[A] Bill for an Act of the Scottish Parliament to raise the age of criminal responsibility to 12 years and to make consequential changes to the law on the disclosure of criminal records and on disclosure of information about individuals working or seeking to work with children or certain adults; on the provision of information by the Principal Reporter to persons adversely affected by the behaviour of children; on the taking of certain children to a place of safety by the police; on the search of certain children by the police; on police interviews with certain children; and on the taking of forensic samples from certain children by the police; and for connected purposes.”
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  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.
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  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:
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 19096 Adam 19).
A link to a story about the Lord Advocate’s decision can be found on the BBC Scotland website:
I was motivated to write this particular blog entry when I read about an account of the outcome of a criminal case from England.
In that case, a young man (Dale Kelly) was acquitted of the charge of sexually assaulting a young woman while she was asleep. Kelly was able to satisfy the court that he had been sleep-walking at the time of the incident and, therefore, had no control over his actions.
Technically, the jury at York Crown Court returned a verdict of not guilty by reason of insanity.
A link to the story on The Guardian’s website can be found below:
If such a case had occurred in Scotland, we might be talking about the possible application of the special defence of automatism. Automatism is one of six potential special defences that are now deemed to exist in Scots criminal law (the others being alibi; coercion or necessity; incrimination; insanity; and self-defence).
That said, it is not immediately clear that Mr Kelly would have been acquitted had his trial taken place in Scotland.
What is automatism?
Automatism is a condition whereby an individual unconsciously loses control of the body through no fault of his own, for example, due to the involuntary ingestion of mind altering drugs or a condition such as sleep walking or epilepsy. Crucially, the accused did not make a conscious decision to commit a criminal act. It is during the unconscious episode that the accused commits a crime, but does not know what is happening and has little (if any) recollection of this event having taken place.
An example of the successful pleading of the defence of automatism arose in Her Majesty’s Advocate v Ross (1991)SLT 564, 1991 JC 210.
The accused had been drinking in a public house and, while present there, he subjected several of his fellow drinkers to a violent assault with a knife. It later emerged that someone in the public house had placed temazepam and LSD tablets in the lager can from which the accused had been drinking. The combination of temazepam and LSD had caused the accused to suffer an extremely violent reaction and this was the reason for him carrying out the attack on the other customers in the public house. The accused relied on the defence of automatism and was subsequently acquitted because he was able to convince the court that he had lost control of his body. It should, of course, be appreciated that the accused had no knowledge that he had ingested the temazepam and LSD tablets and could not be held responsible for what later happened.
Often the type of automatism found in Her Majesty’s Advocate v Ross (1991) is referred to as external automatism because the reason for the loss of control by the accused is caused by an external factor, for example, ingesting drugs without his knowledge.
Critically, Lord Justice-General Hope made the following remark in Ross:
“I understood [the Solicitor General] to accept that there was evidence that the appellant [Ross] had no control over his actions with the result that they were involuntary.”
Historically, the Scottish courts permitted attempts by an accused to use a defence of internal automatism. Internal automatism is caused by some physical condition from which the accused suffers, for example, epilepsy, diabetes or sleepwalking. It could be argued, however, that the concept of internal automatism was limited by the decision of the High Court of Justiciary in Her Majesty’s Advocate v Cunningham (1963) SLT 345 where the accused failed to convince the court that his epilepsy should be used as a defence to the charge that he had committed a number of road traffic offences. Previously, however, the Scottish courts had recognised the concept of internal automatism as a defence (as in His Majesty’s Advocate v Ritchie (1926)JC 45).
In Cunningham, Lord Justice-General Clyde stated that:
“Any mental or pathological condition short of insanity—any question of diminished responsibility owing to any cause, which does not involve insanity—is relevant only to the question of mitigating circumstances and sentence.”
Admittedly the decision in Cunningham, has been viewed by some as a blatant attempt by the High Court of Justiciary to narrow the range of possible defences available to the accused in Scots criminal law.
Nevertheless, the ramifications of Cunningham seem to suggest that a condition such as parasomnia as experienced by Mr Kelly might not result in an acquittal verdict in Scotland, but rather a lesser sentence being imposed by the court.
As Professor Claire McDiarmid of University of Strathclyde’s Law School has noted, a court has accepted the defence of automatism in a situation where the accused suffered from diabetes which caused hypoglycaemia (see MacLeod v Mathieson 1993SCCR 488). That said, the sheriff was at pains to point out that the defence could only be used in such circumstances which related to a first attack of the condition. In other words, if the accused was well aware that a condition from which s/he suffered tended to result in loss of mental and bodily control this might not be easily forgiven or overlooked by a court. In other words, the negative consequences resulting from the medical condition could be not just reasonably foreseeable, but highly probable.
Critically, returning to Ross, the accused’s behaviour had resulted from the actions of other parties i.e. the spiking of the can of lager which was absolutely not his responsibility. The Scottish courts seem more willing to accept the defence of automatism in these types of situation as opposed to an incident such involving Mr Kelly who had a history, from childhood, of parasomnia. This factor might have weighed very heavily on the outcome of the trial had it taken place in Scotland.
A link to Professor McDiarmid’s paper discussing automatism and special defences generally in Scots criminal law can be found below: