Double Jeopardy: Never Say Never Again

In March 2005, Sean Flynn was acquitted of the murder of his mother, Louise Tiffney. Her body had never been found. The jury returned a “not proven” verdict after a 22-day trial. Now, fourteen years later, the Crown are trying to prosecute him for her murder for a second time.

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But how can you be prosecuted for the same offence a second time, having been acquitted after trial? Is there a “double jeopardy” rule in Scotland, and – if so – are there any exceptions to it?

Around ten years ago, between the third and final years of my undergraduate degree, I sent a speculative email asking for a work experience placement with the Crown Office and Procurator Fiscal Service. I knew by then that my main area of interest was criminal law, and wanted to boost my CV’s appeal to prospective criminal defence practitioners beyond simply “I work part-time in a bookies, so I have valuable experience of being physically and verbally abused”.

It worked out really well; I spent a lot of time in court “assisting” (by trying to stay out of the professionals’ way as much as I could) and ended up at the High Court watching (unknown to me at the time) a future employer defending a guy accused of attempted murder. It was a memorable case:

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Remember, pre-Brexit, when newspapers were occasionally quite good?

 

By far the best part (definitely better than the visit to the “Deaths Department”, a title that over-promised and under-delivered in the excitement stakes imo) was being shown around the “Productions Warehouse” deep in the bowels of Edinburgh Sheriff Court. This is where physical items of evidence are stored for use in upcoming trials.

You know the bit in The Matrix where Neo says that they’re going to need “Guns; lots of guns” and loads of shelves of guns appear out of nowhere? The productions warehouse was a bit like that, except Neo (me, obvs) was saying “We’re going to need guns; a couple of guns. And knives. And jewellery. And cash. And a baseball bat with nails driven through it. And a unicycle, for some reason.”

Hidden away in a back corner were a few boxes labelled “World’s End”, and the Productions Keeper (like the guy at the end of Raiders of the Lost Ark) explained that it was the evidence from the then-recent “World’s End Murders” trial – Her Majesty’s Advocate v Sinclair. The trial had ended with Angus Sinclair’s acquittal, on the basis of a legal argument of “no case to answer” on 10th September 2007 (so he was acquitted by the judge, rather than the jury).

The fallout from this high-profile trial was significant, both legally and politically. Kenny MacAskill, the Cabinet Secretary for Justice, had referred “the principle of double jeopardy, and whether there should be exceptions to it” to the Scottish Law Commission for their recommendations on whether the law should be changed. The evidence used in the trial was being kept in storage, just in case.

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“stick it with the rest of the unicycles”

As of summer 2009, though, there was no way in law for Angus Sinclair’s acquittal to be challenged. Any attempt to prosecute him again for the murders of Christine Eadie and Helen Scott would inevitably be prevented by the argument that a new trial would be res judicata  – “a thing that has already been decided”. This was known as the common-law (i.e. not contained in a written piece of legislation) “double jeopardy” rule, although the phrase didn’t have any official status in Scots law at the time. With the exception of the Appeal Court authorising a “new prosecution” following a conviction being quashed on appeal, the Crown were not allowed to have a second go at prosecuting you for the same offence after a case had been decided by a judge or jury.

Significant change was forthcoming, though.  The SLC published their detailed “Report on Double Jeopardy” in December 2009, making 36 recommendations. Among these, they recommended that, while “there should continue to be a general rule against double jeopardy”, such a rule should be “reformed and restated in statute”.

Crucially, they also recommended that the Crown should be allowed to retry an acquitted person in certain specific circumstances. These recommendations were, broadly, given effect in the new Double Jeopardy (Scotland) Act 2011. Around the same time, the Criminal Justice and Licensing (Scotland) Act 2010 introduced a “Prosecutor’s right of appeal” against “no case to answer” acquittals. The success of such an appeal would depend on whether the prosecutor could convince the High Court that the acquittal was “wrong in law”.
The Rule Against Double Jeopardy

The 2011 Act applies to all convictions and acquittals, regardless of whether they happened prior to the 2011 Act coming into force or not. It starts by setting out what the “rule against double jeopardy” is.

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So, when a case ends by acquittal or conviction (including absolute discharge, which isn’t technically a conviction), you cannot be charged with the same offence, an offence arising from the same set of facts (e.g. charging someone with assault by throwing a brick, when they’ve already been acquitted/convicted of culpable and reckless conduct by throwing the brick), or an aggravated form of the original offence (e.g. charging someone with assault to injury and permanent disfigurement by throwing a brick, when they’ve already been convicted/acquitted of a non-aggravated assault).

On that last point, it’s worth noting that section 11 provides a specific exception to this rule relating to aggravations. When A is convicted/acquitted of an offence involving physical injury to B, and B dies after the conviction/acquittal, “apparently from the injury”, then it can be competent to charge A with the murder or culpable homicide of B, or “any other offence of causing B’s death” (e.g. causing death by dangerous driving).

Curiously, s11(1)(c) and (3) allow the Crown to apply to the High Court for permission to prosecute A for murdering (etc) B, when A has already been acquitted of assaulting B. It’s hard to see how A could be guilty of a murderous attack on B when he has already been acquitted of assaulting B in the first place. In these circumstances, the Crown would have to persuade the High Court that a prosecution for murder “is in the interests of justice”. I’m not aware of this provision having been used yet, so it’d be interesting to see how the High Court approach this question, particularly if there’s no new substantive evidence (other than that of B’s death) for the Crown to rely upon.

In a provision that stretches the definition of the idiom “silver lining”, if A is convicted of B’s murder (etc) in accordance with s11(2), s11(5) entitles A to apply to have any earlier conviction for (e.g.) a non-fatal assault to be quashed. Peter Mandelson levels of spin required to sell “Well, you’ve been convicted of murder, but at least you won’t have to worry about that conviction for assault any more, eh” to your client in the cells.

Anyway, back to the proper exceptions to the double jeopardy rule. Sections 2-4 of the 2011 Act deal with these. There are three exceptions given: “tainted acquittals”, “admissions made or becoming known after acquittal” and “new evidence”.

 

Exceptions to the rule #1: “tainted acquittals”

This can be summarised like this: we can have another go at prosecuting you if you were acquitted because you (or someone else) nobbled the trial process somehow.

Section 2 of the 2011 Act refers repeatedly to “an offence against the course of justice”, which is defined in s2(8) as “perverting, or attempting to pervert, in the course of justice (by whatever means…)”. It specifically includes bribery and inducing (“subornation of”) perjury (e.g. by forcing a witness to lie on oath via threats), but does not include the act of perjury itself. In other words, it is not enough for the Crown to say “The accused lied on oath when giving evidence, and he would not have been acquitted if he had told the truth”.

If there is evidence of judge/jury tampering, then the High Court can set aside the acquittal if it is “unable to conclude that the interference had no effect on the outcome of the proceedings on the original indictment or complaint”, and “in the interests of justice to do so”. It cannot do so if interference with a juror become known to the trial judge in the course of the trial, who then allowed the trial to conclude. This is because the trial judge is trusted to take necessary steps to ensure the integrity of the trial (and therefore, the acquittal).

If the nobbling relates to witness tampering, s2(7) provides that an acquittal can only be set aside if the jury were prevented from hearing evidence “capable of being regarded as credible and reliable”, or heard “false evidence” as a result. Presumably, this would require evidence to be led in the High Court (potentially via a sworn statement – an affidavit – or the witness in question speaking to what happened).

 

Exceptions to the rule #2 admissions

For various reasons (guilt / alcohol / idiocy / belief that your best pal can keep a secret, without appreciating that there r 2 many sneks these days hun inbox me xx etc), folk absolutely love confessing to crimes they’ve committed. Section 3 of the 2011 Act deals with “admissions made or becoming known after acquittal”.

If you have been acquitted of an offence, you can be re-prosecuted for the original offence (or a different one arising from the same facts and circumstances as the original offence, or an aggravated version of the original offence) if:

  • You admit committing the original offence (or a “relevant offence”, which covers the two “or” examples in the above paragraph) at any point after acquittal, or
  • It comes to light that, before acquittal, you made such an admission

In both scenarios, the High Court has to be satisfied that the case against the person is “strengthened substantially by the admission”, that a reasonable jury would have been “highly likely” to convict as a result, and that it is in the interests of justice to allow a second prosecution.

In the latter scenario, the High Court also has to be satisfied that the Crown did not know (and could not reasonably have found out) about the admission by the time you were originally acquitted.

So, it is a bad idea to respond to the jury’s verdict of not guilty/not proven by jumping up in the dock and shouting “Ha, I did in fact stab the complainer, and you rubes fell for the elaborate tapestry of lies that I weaved for you!” (or equivalent)

In 2016, the Crown attempted to use this section to re-prosecute Francis Auld for the murder of Amanda Duffy, but the application was refused. You can read the decision here – the “admissions” in question begin at paragraph 17.

 

Exceptions to the rule #3 – “new evidence”

Section 4 of the 2011 Act deals with situations in which the Crown seeks to have an acquittal set aside because of the emergence of “new evidence”.

s4(3) and (7)(b) define “new evidence” as “evidence that the person committed the original offence or a relevant offence…[which] was not available, and could not with the exercise of reasonable diligence have been made available, at the [original] trial”. It is important to note that this does not include evidence that was available at the time, but which was not used during the trial “for tactical or other reasons” [HMA v Sinclair, 2014, see below].

Similar to the admissions exception above, new evidence has to “substantially” strengthen the case against the previously acquitted person, to the point at which a reasonable jury would be “highly likely” to convict them. It also has to be in the interests of justice to allow a second prosecution. Interestingly, s4(5) only allows one “new evidence” application to be made to set aside an acquittal, so the Crown have to be confident that no further significant new evidence will arise in future. 

The most famous example of the “new evidence” exception being used is the case of the World’s End Murders. In 2014, the Crown applied to have Angus Sinclair’s acquittal set aside on the basis of new evidence that had come to light as a result of significant developments in forensic science since Sinclair’s 2007 trial. 

Spoiler alert: the application was granted. The court was satisfied that the new evidence was “only available because of the new and more sophisticated scientific techniques which have become available since the trial“. Given the seriousness of the charges, and the impact of the new evidence, it was in the interests of justice to set aside the acquittal and authorise a new prosecution.

Angus Sinclair was convicted of murder on 14th November 2014, and, according to the press at the time of writing, is “close to death” in prison. Good thing they kept hold of those boxes in the Productions Warehouse, eh.

Sean Flynn, who I mentioned back at the start of this post, is facing a potential retrial on the basis of new evidence – the discovery of Louise Tiffney’s body, which presumably has led to forensic evidence becoming available.

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It remains to be seen whether the Crown will be granted their second attempt at prosecuting him. 

 

2019

Hello – just a quick placeholder-y post at the end of 2018 to set out what my plans are for this site over the next year (and hopefully beyond).

Short version: more of the same. I’m going to try to do a lot more when it comes to expanding the Guide to Scottish Criminal Law part(s) of the site. By my count, I’ve done 21 pages since starting the site a few months ago, but there’s obviously plenty still to do. You can access them via the menu at the top of the page (it’s not immediately apparent if you access the site on your phone).

I’ve enjoyed writing the more in-depth blog posts about (relatively) topical issues, and plan to continue doing them. My plan is to do one on “double jeopardy” in January, so I think we can all agree that that’s something to look forward to.

On a personal note, 2019 is likely to be extremely busy for me, and I’ll do my best to fit the site around that. From a career perspective, I have Big Plans that will hopefully be confirmed around March. Other than that, I’m getting married in August (sorry everyone), so have to drag my tubby arse to the gym a few times before then (#newyearnewme).

If you’re interested in new content on the site, please follow me on Twitter: @crimedotscot – I’ll post updates there as soon as new pages are published.

Fantastic Beasts and Where to Find Them

One of the unfortunate realities of being a criminal defence lawyer is
that you become intimately acquainted with lots of people’s Objectively Bad sexual predilections. Obviously, you dream of getting a case like this:

dIGmwKw
The word “trying” is doing a lot of heavy lifting in that opening sentence.

More often than not, though, you’re dealing with charges that allege the depths of human depravity (with frustratingly little potential for good puns, unlike Bike Sex Guy – you can make some wheely good ones about him).

Arguably, the most difficult cases involve allegations of the sexual abuse of children; you see and hear some pretty dreadful things. Cases like that aren’t conducive to blog posts that both inform and entertain, so I’ll defer to Brass Eye’s Paedogeddon! episode from
2001, which is one of the funniest things I’ve ever seen (and I’ve seen an article about a guy trying to have sex with a bike, lads).

In the light of increasingly stretched police forces across the UK, and the constant narrative of SICK BEASTS CAGED for preying on children coming from the press, it’s probably not a great surprise that vigilante groups appear to have taken it upon themselves to proactively “hunt” paedophiles. Posing as children online, they try to bait people into arranging to meet with them for sexual purposes.

vigilantes
You might want to rethink your branding.

Thereafter…it’s slightly less structured. People tend to get quite excited when they believe they’ve successfully “outed” a paedophile.

WQSkU1A

e1VlxIc

courier

Clearly, the most troubling thing about the above examples is the choice of the unbelievably naff name “Wolf Pack Hunters”. Sounds like a dating site for furries (speaking of Objectively Bad sexual predilections). Beyond that, what are the legal implications of private citizens setting up “stings” in order to gather evidence that may end up being relied upon in a criminal court?

Entrapment (not the 1999 caper starring Catherine Zeta-Jones)

“Detection by deception is as old as the constable in plain clothes.” 

(R v Murphy, 1965 NI 138)

Entrapment exists only where the crime was committed as a result of instigation or persuasion by the police or other authority, and committed by a person who would not otherwise have been engaging in the activity in question.”

(Renton and Brown on Criminal Procedure, 6th Edition: 9-20.1)

Traditionally, the investigation of crime is for agents of the state – most commonly, the police. An extremely effective way to obtain evidence that somebody is guilty of a criminal offence is to have him/her commit that offence in the presence of a police officer.

Say that the police suspect that a particular flat is being used as a base for drug dealing. “Undercover” officers may go to the flat in disguise and attempt to make a “test purchase” of drugs, in order to satisfy themselves that drugs are indeed being sold by the occupier. The occupier could then be criminally liable on the basis of the undercover officers’ evidence.

Similarly, if the police suspect that an online chat room / instant messaging app is being used to “groom” children for sexual exploitation, officers may pose as children and gather evidence on communications made by unsuspecting chat participants. This may lead to the target actively taking steps to meet the “child”, which tends to end badly for them when they turn up at the pre-arranged location.

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The above examples involve the deception of the target as to the police officers’ true identity and reasons for making contact. Fortunately for the state, Scots criminal law gives the police certain powers in this respect.

That said, if their actions cross over into entrapment (think of it as “state-created crime”), then this may well be fatal to the prosecution, on the basis that the police have acted “oppressively”. This should be raised by the defence as early as possible, in what is known as a “plea in bar of trial”.

Given the definition of entrapment from the authoritative “Renton and Brown on Criminal Procedure” above, we know that deceiving the suspect in the course of investigation does not necessarily amount to entrapment, and therefore is generally permissible in the investigation of crime by the police. This is borne out by various cases on the topic.

Weir v Jessop (1991 SCCR 242)

  • Police officers went to the accused’s home, having suspected that he was dealing drugs. 
  • One officer rattled the letterbox, while another listened from a concealed position. When a woman answered the door, the officer asked whether the accused was in, telling her “I was told I would get some hash”. When she asked who had sent him, the officer lied and said that the accused’s brother had sent him.  The woman then called the accused, who sold the officer some cannabis resin, which was paid for with a marked note. 
  • The accused’s home was later searched by police (with the authority of a search warrant), and the marked note was recovered from him.
  • The accused was convicted of supplying cannabis resin to the police officer, despite objecting to the evidence arising from the interaction at the front door. 
  • His appeal against conviction was refused.
  • Lord Morison: “…the crime was not one which resulted from any undue pressure or persuasion on the part of the policeman. It was a purely voluntary act on the part of the appellant. The appellant was not tricked into doing something which he would not ordinarily do.”

R v Looseley (2001 1 WLR 2060)

  • This is an English case, but was quoted with approval in the Scottish case of Jones & Doyle v HMA (see below).
  • Lord Nicholls: “a useful guide is to consider whether the police did no more than present the defendant with an unexceptional opportunity to commit a crime.”

Jones & Doyle v HMA 2009 HCJAC 86

  • This is a really interesting  case, if only because it involves an art heist. It is known as “the Da Vinci Extortion Case”; the details are too complex to summarise here, but have a read of the press coverage from the time that I’ve linked to. 
  • Lord Carloway: “What the Court is looking to see…is simply whether or not an unfair trick was played upon the particular accused whereby he was deceived, pressured, encouraged or induced into committing an offence which he would never otherwise have committed. That is essentially the only test.”

So, hopefully you have an idea of what the police are entitled to do when it comes to ensnaring would-be criminals. For an example of when this boundary is crossed, have a read of HMA v IP (2017 HCJAC 56)which is much briefer than the three cases I’ve listed above. It deals with a police operation to detect paedophiles online, so it’s relevant for present purposes too.

R v TL: Can Private Citizens Entrap Each Other?

So far, you’ll have noticed that I’ve been talking about entrapment as it relates to the police. The reason for this is that , traditionally, entrapment as a plea in bar of trial is based in the chin-stroking philosophy that, as the state is responsible for the investigation and prosecution of crime, it should not be allowed to rely on evidence that was sourced due to its own misuse of power. But what about when a private citizen uses deception in order to go fishing for sweet, sweet evidence?

There are no reported cases in Scotland (that I know of) that deal with “entrapment” by private citizens. We may see one or two in the relatively near future, thanks to the wacky antics of our pals in the Wolf Pack, but who knows?

That said, we can look to a very recent case from the English Court of Appeal – R v TL – that may provide some persuasive (albeit not binding) guidance on the matter. As with the Loosely case above, the Scottish courts are prepared to take English decisions on board when coming to their own view on matters.

R v TL (2018 EWCA 1821)

  • TL joined a SayHi Chat session using an app on his phone. His profile said “me and my female partner wanting a girl that’s willing to try a new experience”, and indicated that the girl in question should be 18-29 years old.
  • “Mr U”, a member of the “Predator Hunters” group, started chatting to TL. This group was not acting as part of, or on behalf of, the police.
  • Mr U’s profile was set up in the name of “Bexie”, and said “Hiya am just your average 14-year-old girl looking to meet new friends”.
  • TL’s account made contact with “Bexie”, and asked her whether she wanted sex as part of a threesome. A conversation of a sexual nature took place, during which “Bexie” reiterated that she was 14. TL and “Bexie” made arrangements for her to come over to TL’s house.
  • Later, members of the Predator Hunters group came to TL’s house, along with the police. He was charged with attempting to meet a child, following sexual grooming. The evidence came from the content of TL’s phone.
  • The judge in the initial proceedings “stayed the case” (effectively, ended the prosecution) on the basis that TL was the victim of entrapment. His view was, “There is nothing to stop such a group gathering material and handing it to the police. It may form the basis of an intelligence led police operation, it may add to the body of evidence obtained by the police. However, in my judgment, if the purpose of the exercise is to behave like an internet police force, and to behave in a proactive way, in order to obtain evidence on which to mount a prosecution, it seems to me the common law principle against entrapment should apply to this private citizens’ operation, in the same manner as it would apply to a police operation.”
  • The CPS appealed against this. The appeal was successful.
  • The English Court of Appeal held that Mr U’s actions would not have been improper, had they been carried out by a police officer on the basis of suspicion that the SayHi Chat app (not necessarily TL himself) was being used to groom children.
  • While “a precise comparison may be difficult” due to the lack of oversight/codes of practice, we can apply the same test for entrapment to private individuals and agents of the state.
  • In the circumstances, Mr U’s conduct did not render the proceedings against TL to be fundamentally unfair.

For more detailed summaries of the TL case, see here and here.

So, good news if you fancy yourself as a vigilante in Scotland, right?

sting vigilante
He looks delighted!

Well, maybe. To reiterate, R v TL is an English case, so it doesn’t necessarily have any bearing on Scottish cases in future. We’ll have to wait and see what happens if (and I think it’s only a matter of time) a case comes before the Scottish courts alleging entrapment on the part of untrained but enthusiastic amateurs.

In the meantime, we can be pretty sure that non-state agents investigating crimes (and not in a cool Miss Marple way) carries a unique set of risks. Let’s look at some.

“I dunno…Coastguard?”

https://www.youtube.com/watch?v=HQmMaBsUso8

Evidence gathered by vigilante groups can be – and is – passed on to the police and COPFS, who rely on it to secure convictions. Obviously, it is a good thing that those who would groom and abuse children are brought to justice.

However, there are clear reasons why prosecutors and police have gone on record to express their concern about citizens “taking the law into their own hands”.

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ww1

One of the more obvious reasons is that “we were confronting a paedo, m’lord” isn’t a valid defence to charges of assault / breaching the peace / threatening or abusive behaviour / mobbing and rioting (etc). If you’re part of a group that goes to someone’s home address with the intention of intimidating and humiliating them publicly (no matter what they’ve done), in the knowledge that your actions will put innocent people (family, neighbours etc) at risk of harm, you can’t be surprised if you end up in the dock yourself.

That aside, while we know about the successful convictions, there appear to be plenty of cases in which the targeted person hasn’t even ended up being prosecuted, let alone convicted of anything.

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115 people confronted, “at least 66” prosecutions. There may be more, but let’s go with that number. That potentially leaves 49 cases in which someone has been “confronted” by vigilantes, and then not prosecuted. Why?

It could be because the police/COPFS, upon reviewing the evidence received from these groups, have decided that they don’t want to take the risk of trying to rely on unfairly-obtained evidence. That potentially leads to acquittals, or – worse – authoritative Appeal Court judgments that tighten the reins on what the police/COPFS are allowed to do when passed evidence by these groups.

It could be because the vigilantes got the wrong person.

It could be because the targeted person, upon being confronted, decided that the best course of action would be to destroy their phone/computer in the window before the cops turn up to seize it, thus depriving the police/COPFS of crucial evidence. No evidence = no conviction.

It could be because this might have happened:

I don’t know whether the groups in question have considered the above risks. Maybe they have, and have taken the view that they don’t care about what the police or courts do – a conviction is a bonus, but not the goal. They may well take the view that live-streaming an angry mob confronting somebody in public is a better form of “justice” than any protective measure that a court could impose as part of a sentence.

All I’ll say is: Paedogeddon! was meant to be satire, not a documentary.

The Meaning of Life

Never read the comments. Specifically, never read the comments on news articles relating to your chosen profession / area of interest.

Because I am both an idiot and a masochist, I occasionally read the comments on news reports of criminal cases. For example, take today’s news report of the sentencing of Nico Allan for the murder of Mark Squires in Edinburgh in October 2017.

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Here is a sample of the comments, which I would say is representative of the comments you tend to get on reports like these.

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Murder is obviously an awful crime, and people are quite right to be upset and angry with the person convicted. I’m not suggesting for a second that people wanting murderers to be locked up forever are being silly. However, I do think that comments like these underline the importance of a dispassionate and evidence-based legal approach to dealing with people convicted of murder.

I thought that a post explaining the concept of “life imprisonment” might be useful for those who aren’t familiar with how it works in practice. It might persuade someone that life imprisonment is something that should be taken seriously – who knows?

A Modest History of Life and Death in Scotland

As you probably know, capital punishment was A Thing in Scotland until the mid 20th Century. To illustrate this, have a look at this Herald article on hangings in Glasgow, which includes an objectively excellent picture of an old boy pointing at a trapdoor in Duke Street “Pirson”.

pirson
“Look – there it is, lads”

It’s also worth having a quick read of the Hauf-Hangit Maggie story, which has to be one of the finest examples of the legal technicality in history.

Eventually, the Murder (Abolition of Death Penalty) Act 1965 came along and did what it said on the tin:

So, when somebody is convicted of murder, the court has to impose a sentence of life imprisonment. “Discretionary” life sentences are also available for other offences (e.g. rape).

Over the years, the law in Scotland (as well as in England & Wales) has evolved to the point at which it is accepted that those sentenced to life imprisonment have the right to have their continued imprisonment reviewed after a certain point. The basis for this comes from the following 1990 case:

Thynne, Wilson and Gunnell v UK (1990 ECHR 29)

  • Article 5(4) of the European Convention on Human Rights states: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
  • Thynne, Wilson and Gunnell had each been given discretionary life sentences in England for violent sexual offences.
  • They argued that the concept of life imprisonment without possibility of review breached their rights under Article 5(4).
  • The court in Strasbourg decided, by 18 votes to 1, that their rights were indeed being breached by not allowing possibility of review. Life sentences should be regarded as having two parts – a “punishment” part (aimed at the offender) and a “security” part (aimed at protecting the public).
  • The prisoner should be allowed to apply to have their continued imprisonment reviewed once they had served the punishment part of their sentence.

If you think that this is outrageous / another example of Human Rights Gone Mad / Brexit Means Brexit etc, take some comfort in the knowledge that, if human rights can apply to Bad People, that means that they definitely also apply to you, a Good Person! Terrific!

The Law on Life

The Prisoners and Criminal Proceedings (Scotland) Act 1993 was enacted as a reaction to the Thynne case, and it’s the relevant piece of legislation when considering the treatment of life prisoners in Scotland today. I’ve tried to highlight the pertinent bits of this word salad for current purposes:

https://www.legislation.gov.uk/ukpga/1993/9/section/2

Long story short: when sentencing you for murder, the High Court judge has to impose a sentence of life imprisonment, while simultaneously specifying a period of time as the punishment part of that sentence. In other words, this is the period of time (i.e. many years) that you have to spend behind bars, without any prospect of getting out. No early release, no “time off for good behaviour”, nothing.

At the time of writing, the longest punishment part imposed in Scotland is 37 years for Angus Sinclair, “the World’s End Murderer”.

Only after the punishment part has expired, you can apply to the Parole Board for Scotland (PBS) for release. They have a decent FAQ page on their website here.

The PBS will consider evidence from a variety of sources in order to decide whether the risk you present to the public can be managed or not. I’ve dealt with Parole Dossiers – they tend to run to hundreds and hundreds of pages, so we can assume that there’s little chance of leaving stones unturned.

“The Parole Board must look at wider issues than the offender’s behaviour in custody. The Board has regard to a wide range of information when considering the case from a variety of sources. The prisoner’s criminal record, his/her family background, what counselling/courses he/she has undertaken while in custody in order to address the causes of offending, the response to such counselling and the prisoner’s plans for release are all important.”

(from the Parole Board for Scotland’s FAQ)

If they decide that you are not ready to be released, you will stay in prison. You can only apply to the PBS once every two years.  There is no guarantee that the Parole Board will ever agree to release you. It is quite possible that you will die in prison.

The length of the punishment part of your sentence has nothing to do with your prospects of release by the PBS. In other words, it’s quite possible to envisage a scenario in which an individual is sentenced to life imprisonment for murder, wins an appeal against the length of the punishment part of their sentence (with all of the tabloid outrage that entails), and then ends up dying in prison long after the expiry of the reduced punishment part. It’s like raaaaeeeeaaaain on your wedding day (etc).

Just to hammer home this point again: the punishment part is the minimum period of time that you have to spend in prison. More often than not, you will be in prison significantly longer than that.

Post-Parole

Even if the PBS decides to release you, the sentence of life imprisonment never goes away.

You will be released “on life licence”. This means that you have to obey strict conditions, such as undertaking counselling, reporting to a supervising officer, living in a specific place or reporting any change in your circumstances (e.g. taking up employment). You will be kept on as short a leash as the authorities deem appropriate.

These conditions can change over time, but you will never be entirely free of them. There are serious consequences for breaching them, or for committing another criminal offence (etc). If the PBS recommends it, or the Scottish Ministers think it is “expedient in the public interest”, your licence can be “revoked” at any time, and you’ll be taken back to prison to continue serving your sentence of life imprisonment. This is set out in section 17 of the 1993 Act.

To give you an idea of the sort of mental strain involved with being on licence, I worked as a Legal Adviser in the Justice of the Peace Court for a few months just after qualifying as a solicitor. One day, we had what appeared to be a completely run-of-the-mill speeding case (36mph in a 30mph zone) – 3 penalty points, £100 fine, everybody’s happy (not really, but you know what I mean). Unusually, the accused had turned up. He pled guilty, and immediately burst into tears. I had no idea what was going on, until the accused explained that he was on life licence for murder, and he was terrified that this daft wee speeding conviction could directly lead to him dying in prison. Whatever your views on rehabilitation or sympathy for those convicted of terrible crimes, you have to admit that it’s a hell of a burden to carry around.

That’s a relatively brief guide to how life sentencing works in Scotland. If you’re an advocate for the death penalty (despite the evidence suggesting that it’s immoral, extremely expensive and an ineffective deterrent), or believe that we should be imprisoning more people for longer periods of time in worse conditions (in which case I’d recommend that you have a look at the Howard League’s publications), then you may not have changed your views, which is fine. As long as you know that “life” does actually mean life.

“Projecting Semen” – It’s Assault-y

The law is a big field in which to work, and we (solicitors) all have our reasons for finding our particular niches.

Some are drawn to the riches of “Magic Circle” firms in London, where long hours of tedious work pays newly-qualified lawyers the best part of £100,000 a year, which they presumably regard as a fair trade for their youth and optimism. Others want to fight injustice in the forums of immigration, asylum and employment tribunals, or help resolve bitter family disputes in a way that protects the interests of innocent children.

I just wanted to defend people charged with chucking their jizz around supermarket car parks. Unfortunately, I have yet to have this privilege. A lucky colleague, however…

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https://www.dailyrecord.co.uk/news/scottish-news/sick-pervert-sprayed-semen-over-13221610

Obviously, it’s a disgusting crime, which would no doubt be extremely distressing for the victim. The Daily Record reporter’s feelings are clear, insofar as he has used the phrase “revolting pervert” on more than one occasion. He appears to have let tabloid standards slip, though, in that nobody gets slammed or rapped in the course of the article, which is a shame.

There are a few legal points that are worth making, in the context of this story.

 

Statutory Charge, Common Law Conviction

Mr Reid (the “revolting pervert” in question) appears to have been charged with the specific statutory offence of Sexual Assault by intentionally or recklessly ejaculating semen onto someone without their consent (and without reasonable belief that they were consenting). This is found at section 3(2)(d) of the Sexual Offences (Scotland) Act 2009. 

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Not sure whether I’m relieved or disturbed that there’s a specific offence for this sort of thing. I’ll try to cover it in more detail when I get round to doing the section on sexual offences.

If you’ve read the story above, you’ll have noticed that Mr Reid was not, in fact, convicted of the offence he was charged with. He was convicted of assault, as opposed to the specific statutory offence of sexual assault.

This might seem confusing if you aren’t familiar with criminal law. How can it be fair to be – effectively – acquitted of the crime you’ve been charged with, but convicted of a different one?

The starting point is subsection (b) of paragraph 14 of Schedule 3 of the Criminal Procedure (Scotland) Act 1995 (bear with me):

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In other words, if you’re charged with a statutory offence, common law offences (e.g. assault / theft / reset / culpable homicide / breach of the peace etc) are always there in the background, and – depending on how the evidence comes out at trial – can be substituted in by the Sheriff or by the jury. Presumably, this is to lessen the chance that people who have committed crimes are not able to escape by virtue of the fact that they’ve been charged with the wrong crime.

In this case, the Sheriff appears to have said in his judgment:

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So, the evidence did not support the original charge under s3(2)(d) of the 2009 Act, in that there was insufficient evidence of Mr Reid ejaculating the semen onto the women (to put it bluntly). Presumably, though, the evidence suggested that he had thrown it at her in some way (possibly from a vial), which – provided there was evidence that this was a deliberate act – would be enough to constitute a common law assault, and convicted him accordingly.

 

The Register

Mr Reid was jailed for eight months, and made subject to the “notification requirements” of the Sexual Offences Act 2003 (also known as “being put on the Sex Offenders Register”) for a period of ten years. These requirements are worthy of a page of their own (which I will add to my long to-do list in respect of this site), but for now I will just briefly explain why Mr Reid was made subject to these requirements for a common law assault, given that he was not convicted of an offence under the Sexual Offences (Scotland) Act 2009.

Paragraphs 36 – 60 of Schedule 3 of the 2003 Act apply to Scotland, and set out which convictions will land you on the register. Have a look at paragraph 60:

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That phrase “significant sexual aspect” is the key one. If the court decides that the facts and circumstances of the case suggest that you committed an offence for the purpose of sexual gratification, you could be made subject to the notification requirements. Theoretically, any offence could land you on the reigster in this way. For example, the protagonists of the 1996 film “Crash” – if the events took place in Scotland today – could be made subject to the notification requirements on the basis that there was a significant sexual element to their dangerous driving.

For another example, here’s a relatively recent and straightforward Appeal Court judgment  that follows from a Sheriff’s decision to put someone on the register as a result of some “grossly offensive or of an indecent or obscene or menacing character” jokes on Facebook, resulting in a conviction under section 127 of the Communications Act 2003. 

In Mr Reid’s case, it’s hard to view the throwing of semen as having anything other than a significant sexual element.

 

“lamentably unbelievable defence evidence”

From the article:

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Firstly, fair play to Sheriff McCormack for leaving us all hanging re. the other example of lamentably unbelievable defence evidence – one for the memoirs, no doubt.

Secondly, as a solicitor, it is your job to represent your client’s position. You can give advice as to their prospects of success, based on your experience and knowledge of the law, but your client’s instructions are your client’s instructions. As long as they aren’t instructing you to do something illegal, or to advance a defence that you know not to be true, then you should represent their position in court to the best of your ability.

I wasn’t there, and know no more about this case than what’s in the papers, but I have no doubt that Sheriff McCormack’s comments were aimed at Mr Reid, rather than whoever was representing him (if anyone).

US courtroom fiction propagates this daft notion of “this lawyer is amazing – he/she has never lost a case!” In the real world, if you’ve never “lost” a criminal trial, you probably haven’t run many. The lawyers I admire most will run completely hopeless trials, in the knowledge that their client will inevitably be convicted, because their client insisted on a trial.

To put that in some context, my instructions from my client in advance of my first ever criminal trial were: I know I’ll be convicted; I just want you to get the polis fuckin’ telt. And I tried my best, and my client was convicted. But he was happy, because – according to him – I’d got the polis fuckin’ telt. If that’s not job satisfaction, I don’t know how to get you fuckin’ telt.

 

Welcome

Welcome to Crime.Scot!

I am in the process of editing and uploading what I have written so far. There is a long way to go, as you can probably tell, but I thought that this would be better than waiting until I’ve written pages on everything that I want to cover.

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If you have any questions, please feel free to contact me and I will do my best to answer.