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

Vulnerable witnesses

Photo by Milada Vigerova on Unsplash

In March 2017, Lady Dorrian, the Lord Justice Clerk (Scotland’s second most senior judge), introduced a new practice note for trials in the High Court of Justiciary which involved child and vulnerable witnesses. The practice note permitted more evidence to be taken by commission i.e. the witness’ evidence and cross-examination can be taken in advance of the trial. This means that vulnerable witnesses do not need to make a personal court appearance.

A link to the practice note can be found below:

http://www.scotcourts.gov.uk/docs/default-source/rules-and-practice/practice-notes/criminal-courts/criminal-courts—practice-note—number-1-of-2017.pdf?sfvrsn=4

BBC Scotland reported today that Lady Dorrian will head up a review into how trials involving sexual offences are carried out. The review will also involve key organisations such as the Crown Office and Procurator Fiscal Service, Rape Crisis Scotland, Scottish Women’s Aid and Victim Support Scotland.

It is now acknowledged by the Scottish Courts and Tribunals Service that the criminal courts are dealing with an increasing number of sexual offences.

The Scottish Parliament is currently looking at changing the law to allow victims of alleged sexual offences to pre-record their evidence and has introduced the Vulnerable Witnesses (Criminal Evidence)(Scotland) Bill.

The Bill’s broad approach – although welcomed by many MSPs – has been criticised by the Scottish Parliament’s Justice Committee which would like to see Scandinavian practices such as Norway’s Barnahus principle being incorporated.

The Barnahus principle relies heavily on a child victim undergoing one forensic interview in an environment where welfare support is readily accessible. Such an interview should should take place as quickly as possible after the alleged sexual offence has taken place.

Lord Carolway, the Lord Justice General, has publicly stated that victims of sexual offences should not be forced to make court appearances.

Lady Dorrian’s review does, however, acknowledge that any reforms contemplated to criminal procedure must protect the rights of an accused person. Article 6 of the European Convention on Human Rights, of course, guarantees a person’s right to a fair trial.

A link to a press release issued by the Scottish Courts and Tribunals Service in respect of the Dorrian review can be found below:

https://www.scotcourts.gov.uk/about-the-scottish-court-service/scs-news/2019/03/20/improving-the-management-of-sexual-offence-cases

It will be interesting to see what recommendations come out of the Dorrian review.

A link to two articles on the BBC website can be found below:

MSPs back new approach to child victims of crime

Justice committee urges the government to adopt a Scandinavian model to deal young crime victims.

Sexual offence cases review by Scottish courts

The way people are treated by the courts during sexual offence cases is to be looked at.

Copyright Seán J Crossan, 20 March 2019