We reproduce below an interesting article from Scottish Legal News, reporting the recently published decision by the High Court of Justiciary Appeal Court to quash a murder conviction on grounds of unfairness in the prosecuting counsel’s speech to the jury. The Appeal Court’s judgement is both sound and robust in its own right. The appellant was, in the event, subsequently re-tried and convicted (the appeal decision remaining unpublished in the meantime), but where the appeal decision is, for us, particularly interesting, is in the Appeal Court’s emphasis of the following:
“It cannot be over-emphasised that the purpose of a criminal prosecution is not to
obtain a conviction,- it is to lay before a jury what the Crown considers to be credible
evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all
available legal proof of the facts is presented: it should be done firmly and pressed
to its legitimate strength, but it must also be done fairly …”
“To safeguard the fairness of the trial a number of rules have been developed to
ensure that the proceedings, however closely contested and however highly charged,
are conducted in a manner which is orderly and fair. These rules are well understood
and are not in any way controversial…”
“It cannot be too strongly emphasised that these are not the rules of a game. They are
rules designed to safeguard the fairness of proceedings brought to determine
whether a defendant is guilty of committing a crime or crimes conviction of which
may expose him to serious penal consequences. In a criminal trial as in other
activities the observance of certain basic rules has been shown to be the most
effective safeguard against unfairness, error and abuse.”
These are, in our experience, principles more notable for their absence from criminal trials in Scotland. Their more general application would go some way to reducing our workload.
The Scottish Legal News article can be found HERE, and is as follows:
A man found guilty of murder who claimed that he suffered a “miscarriage of justice” due to “inaccurate, misleading and improper comments” made by the advocate depute during his closing speech has had his conviction quashed.
The Appeal Court of the High Court of Justiciary allowed the appeal after observing that the advocate depute’s conduct constituted “serious contraventions of accepted rules of practice” and that the trial judge’s directions were not sufficient to ensure a fair trial.
The Lord Justice Clerk, Lady Dorrian, sitting with Lord Menzies and Lord Turnbull, heard that Adam Lundy was convicted of the murder of his neighbour John Kiltie by stabbing following a row over noise coming from the appellant’s flat.
Two co-accused, Allison and Goodwin, one of whom was convicted, had also been charged with assaulting Mr Kiltie.
The court was told that the appellant and friends had been drinking and playing music, with the windows open, at a flat at 13 Park Road, Girvan.
The deceased lived nearby, and there was evidence of prior complaints from him towards the occupants of No 13.
The deceased came into the garden at No. 13 and an altercation ensued. In his evidence the appellant admitted striking the deceased with a knife on four occasions, maintaining that he was acting in self-defence against an attack from the deceased, who was wielding a baseball bat.
The deceased kept coming at him, swinging a baseball bat, and the appellant said that the deceased struck him on the knee, causing him an injury which bled.
The appellant stabbed him four times, in a panic, and stopped when the deceased desisted and fell.
Blood staining matching the appellant’s DNA was found on the inside of the left leg of his trousers, consistent with his having bled from the left knee.
A baseball bat was later retrieved from a cupboard at No. 13 and blood staining on the bat produced a mixed DNA profile from at least three people, although the major and minor components were consistent with the DNA of the appellant and another householder at No. 13.
In statements to the police by both co-accused, each claimed to have seen the deceased challenging Allison with a baseball bat and, in contradiction of each other, each claimed to have disarmed the deceased and placed the bat in a cupboard at No 13 prior to any interaction between the deceased and the appellant.
These statements were not evidence against the appellant, and the trial judge directed the jury accordingly at the time when the evidence was elicited, and in her charge.
‘Miscarriage of justice’
In her report to the appeal court, the trial judge said there was “overwhelming evidence” that the appellant had stabbed the deceased, and that the only question was whether in so doing he was acting in self-defence, having been attacked by the deceased with a baseball bat; and if not, whether he had been provoked.
However, in the appeal it was submitted that the advocate depute “misled the jury” by stating that no DNA of the deceased was on the bat.
Although this was corrected by the trial judge, her direction did not mention that it was the advocate depute who had made the incorrect suggestion.
The advocate depute also invited the jury to rely on the “inadmissible content” of statements by co-accused, but the trial judge’s directions about these statements was “not sufficient” to deal with the potential effect these remarks might have on the jury.
The advocate depute invited the jury to consider their verdict on “sympathy” grounds, referring to the deceased’s family, and background on repeated occasions, and implying that the appellant and others had been taking drugs, a matter for which there was neither libel nor evidence.
The trial judge did clarify this latter point, but gave only the standard directions on the issue of sympathy.
It was submitted that these remarks by the advocate depute, in isolation and in respect of their cumulative effect, resulted in a “miscarriage of justice”.
Serious breach of rules
Quashing the conviction, the appeal judges described the advocate depute’s “clear breaches of well-known and well-understood principles” as “unsatisfactory”, adding that it was “incumbent” upon the trial judge to take decisive action to “restore the balance” between the parties.
Delivering the opinion of the court, the Lord Justice Clerk said: “The trial judge did not take such action. She gave general directions that the jury could not allow feelings of sympathy to enter into their deliberations but did not link these directions with correcting anything said in the advocate depute’s speech.
“In respect of this aspect of the complaint, the advocate depute’s speech did three things. First, it implicitly invited the jury to allow sympathy to enter their deliberations. The only possible context of some of the advocate depute’s comments, for example the baby growing up without a father, would be to elicit sympathy. Notwithstanding the advocate depute’s protestations to the contrary, in our view these parts of the speech require to be seen as evoking sympathy.
“Second, it placed significant emphasis on the character of the complainer as a factor which the jury could take into account, by considering whether the deceased was the kind of person who was likely to have gone across the road in possession of a baseball bat. The extent to which the character of a witness, even a complainer, is relevant, is very limited.
“Finally, the speech invited a contrast between what the deceased had been doing that morning and what the appellant and others at No. 13 had been doing. That too might have been a legitimate observation to make, but in this case the gratuitous reference to ‘taking drugs’, a conclusion for which there was no basis in evidence, again took the matter beyond what was legitimate.”
The “general directions” given by the trial judge were not sufficient. “What was necessary was a clear and robust correction of the position adopted by the advocate depute,” Lady Dorrian said.
She added: “The fact that defence counsel sought, in his speech, robustly to counter the remarks of the advocate depute is of no moment. It is not the role of defence counsel to correct the deficiencies of the crown speech. Given the breadth of the conduct, defence counsel must have felt that he had no option but to try to address the points made by the advocate depute.
“The effect of the Crown speech was thus to cause defence counsel to tailor his speech in a particular way, and to focus on matters which he would not otherwise have dwelt on in the same way. He should never have been put in the position of having to address these matters, and this tends to highlight the extent to which the balance between Crown and defence, necessary for a fair trial, was tilted.
“Unfortunately…the directions of the trial judge did not sufficiently restore that balance. In the circumstances the appeal must succeed and the conviction must be quashed.”
Copyright © Scottish Legal News Ltd 2018
The full opinion of the court can be found HERE.