Criminal Trial

Her Majesty's Advocate v. Thomas Sheridan and Gail Sheridan

Wed, 30 Nov 2011 14:29:56 GMT

Following trial at the High Court at Glasgow between October and December 2010 Mr Sheridan was convicted of perjury and the Crown withdrew the libel against Mrs Sheridan. In advance of the trial the trial judge repelled the accuseds' pleas in bar of trial based on prejudicial pre-trial publicity and related devolution minutes. Here the trial judge issued a Note in which he sets out his reasons for repelling the accuseds' minutes and further details the directions provided to the jury throughout the currency of the trial in relation to publicity. The pleas in bar of trial and associated devolution issue minutes contended that any trial for the offences libelled would not be a fair trial before an independent and impartial tribunal and would thus infringe the accuseds' right to a trial as guaranteed by article 6 of E.C.H.R. on account of the extensive prejudicial publicity. Here the trial judge considered the extent of the prejudicial publicity in the case and what safeguards were provided to the accused in the trial. The court considered the test as laid down Stuurman v H.M.A. 1980 JC 111:-"Each case will depend on its own merits, and where the alleged oppression is said to arise from events said to be prejudicial to the prospects of fair trial, the question for the court is whether the risk of prejudice is so grave that no direction of the trial judge, however careful, could reasonably be expected to remove it." It was submitted on behalf of the accused that no directions by the trial judge would be adequate to guarantee a fair trial. On behalf of the Crown it was accepted that there had been prejudicial publication, however, it was highly improbable that any potential jurors would have seen all the material. It was further submitted that many high profile persons had been prosecuted in the past and appropriate directions by the trial judge would be sufficient to guarantee a fair trial. The trial judge considered the safeguards available including the fact that the jury listening to the evidence would hear it being tested in cross examination which would likely focus their minds on what they were hearing in court. Further, there would be the directions of the trial judge, and, to a lesser extent, the passage of time between publication of the majority of the prejudicial material in 2006 and the trial in late 2010. In addition, here the trial judge details the introductory remarks he made to the jury on publicity, together with the almost weekly reminders to them on the same topic and his directions on publicity from his charge.

Note by The Honourable Lord Bracadale in causa Her Majesty's Advocate v Thomas Sheridan and Gail Sheridan, 18 November 2011

Mon, 21 Nov 2011 11:15:00 GMT

Note recording Lord Bracadale’s reasons for repelling Thomas and Gail Sheridan’s pleas in bar of trial at their trial for perjury. The Sheridans had argued that the trial would breach their right to a fair trial in terms of Article 6 of the European Convention of Human Rights contending that the pre-trial publicity meant that the trial could not be before an impartial tribunal. In particular they argued that:

prejudicial material remained accessible at the time of the trial;
some of the material purported to emanate from police sources; and
the Crown had failed to take adequate steps to render the prejudicial material inaccessible.

Lord Bracadale applied the test[1] for prejudicial pre-trail publicity set out in Stuurman v HMA (1980) and had regard to observations made in Montgomery v HMA (2001) to the effect that the Stuurman test took account of:

the length of time since publication;
the focusing effect of listening to evidence over a prolonged period; and
the likely effect of the directions by the trial judge.

Was there pre-trial publicity?

The first question was whether there had in fact been pre-trail publicity. Having been presented with 13 lever arch files of material and a report of material available on the internet, Lord Bracadale unsurprisingly accepted that there had been pre-trial publicity. Although it was highly improbable that any potential juror would have read all of it, and there was therefore a danger of overestimating the impact of the material on any particular juror, it was likely that some of the jurors would have encountered some of the prejudicial material.

Could the effect of the pre-trial publicity be removed?

The passage of time

Lord Bracadale noted that there had been significant time between publication of most of the prejudicial material (in 2006 following the defamation verdict) and the perjury trial due to take place in 2010. However, there had been publications in the intervening period which harked back to and rehearsed the earlier prejudicial material. Additional allegations had also been made in the intervening period in relation to interfering with witnesses and evidence. Moreover, much of the material was still available on the internet. All of which meant Lord Bracadale found that the argument that the passage of time was a safeguard to a fair trial was a weak one.

Focusing effects of the hearing of the evidence

In contrast Lord Bracadale considered that the focusing effects of listening to the evidence over a pro-longed period was a powerful safeguard. It was not just a polite fiction:

“It is within the daily experience of judges and counsel that juries do become engrossed in the evidence and return verdicts which reflect the evidence. It seems to me that listening to the evidence and hearing it being tested in cross examination in the immediacy of the court environment will be likely to focus the minds of jurors on what they are hearing in court. That is more likely, in my view, to dispel notions that they may have picked up from reading prejudicial material, rather than to reinforce preconceived views. In addition, the jury will have regard to the evidence as a whole, which is a significant consideration.”

Directions of the trial judge

With regard to the directions of the trial judge, the court must assume that jurors will follow the directions given to them by the trial judge. This was a case in which special directions were necessary and would require to cover, for example, internet research and to putting knowledge of the case gleaned from the media from their minds.

Decision

Lord Bracadale had been satisfied that, when taken together, the safeguards removed the risk of prejudice and a fair trial had been available to the Sheridans.

The note repeats the directions Lord Bracadale gave to the jury in his introductory remarks, the reminders he gave during the trial and also the directions given in his charge to the jury.

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[1] “Each case will depend on its own merits, and where the alleged oppression is said to arise from events said to be prejudicial to the prospects of fair trial, the question for the court is whether the risk of prejudice is so grave that no direction of the trial judge, however careful, could reasonably be expected to remove it.”

Her Majesty’s Advocate v. Yvonne Logan Welsh [2011] HCJAC 111

Wed, 02 Nov 2011 15:18:46 GMT

Crown Appeal under section 74 of the Criminal Procedure (Scotland) Act 1995:- On 13 July 2011 the sheriff at Aberdeen sustained an objection by the respondent as to the admissibility of DNA evidence. The objection related to DNA evidence obtained as a result of an evidential swab taken from the respondent, whilst she was in police custody, after she had been charged. It was submitted at the first diet before the sheriff that the terms of section 18(6)(A) of the Criminal Procedure (Scotland) Act 1995 were no longer operative given the change in the respondent’s status and the DNA evidence was inadmissible. The sheriff agreed. The sheriff granted leave to appeal against the decision and the Crown appealed here. Here the court considered the proper construction of the provisions of section 18 of the Criminal Procedure (Scotland) Act 1995. On behalf of the appellant it was submitted that the taking of the sample in question was carried out under section 18 of the 1995 Act and was lawfully obtained by police officers by virtue of the powers contained in that provision. It was submitted on behalf of the respondent that fundamentally once a detainee was charged with an offence his status changed significantly and he was at that point afforded the full protection of the court and the only circumstance in which an accused person, charged with an offence, could assist in the case against them, was if it was sanctioned with the authority of the Court. It was further submitted on behalf of the respondent that the Crown's position was incompatible with article 8 of the ECHR as any interference with a person's private life by the taking of a sample would only be acceptable if it has been obtained according to law and was necessary and proportionate. Here the court considered whether the section 18 powers authorised the taking of the DNA sample from the respondent who was detained under section 14 and whilst detained (but not arrested) was charged.

HMA v. Anne Rosalyn Kenny and Agnes Reville, Sheriff Pender, Paisley Sheriff Court, 26th July 2011

Thu, 18 Aug 2011 16:59:10 GMT

Parties and Background
The complainers were six former pupils of Dalbeth Approved School, Bishopton. They alleged that they suffered abuse and assault at the hands of school staff between September 1970 and Jun 1971. The accused lodged preliminary pleas and devolution minutes.

Parties’ Submissions
Both accused submitted that their right to a fair trial under Article 6 ECHR had been compromised by the delay of 21 years since the alleged offences, the death of potential witnesses and the loss of written records.

The crown submitted that a plea in bar of trial should only be sustained in "rare and exceptional cases". Since no evidence had been heard the sheriff could not possibly make such an assessment. Unfairness could only be determined before the trial in exceptional and blatant cases.

Decision
The sheriff sustained the devolution minutes, holding that the risk of prejudice to both accused was so grave that it would be impossible to direct a jury in such a way that that prejudice could be avoided.

Blueshell Mussels Limited v. Procurator Fiscal, Lerwick [2011] HCJAC 57

Thu, 09 Jun 2011 11:24:57 GMT

Appeal under section 174 of the Criminal Procedure (Scotland) Act 1995:- The appellant has been charged on summary complaint with:- (1) a contravention of the General Food Regulations 2004, Regulation 4(d), Food Safety Act 1990, Section 16(1) and European Communities Act 1972, Section 2(2); and (2) a contravention of Regulation 17(1) of the Food Hygiene (Scotland) Regulations of 2006. A plea to the competency of the two charges was rejected by the sheriff and it is against that decision which the appellant appealed against here. At the beginning of the appeal hearing it was conceded on behalf of the appellant that the second charge was competent. In relation to charge 1 it was submitted on behalf of the appellant that section 16 of the Food Safety Act 1990 was not apt to enable the making of regulations 4 and 5 of the General Food Regulations, the power conferred by that section being concerned with the making of substantive domestic regulations. It was conceded by the Crown that the libeling of section 16(1) of the 1990 Act was erroneous and the appropriate provision was section 17(2). The court allowed a motion by the Crown to amend charge 1 so as to refer to section 17 of the 1990 Act as opposed to section 16(1). The court went on to consider whether the criminal sanctions found in regulations 4 and 5 of the General Food Regulations proceeded under the express parliamentary authority of section 17(2) of the 1990 Act. Further, the court went on to consider the penalties for the criminal offences created by regulations 4 and 5 of the General Food Regulations and whether they are consistent with the provisions of section 35(2) of the 1990 Act.

Punishment Part Hearing under section 10(2J) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 re Julian Nicholas Gilbey [2010] HCJ 4

Thu, 22 Jul 2010 18:09:04 GMT

On 19 October 2001, Gilbey, a British citizen, was arrested at Don Mueang Airport, Thailand, with a travelling bag containing 3.3kg of high-purity heroin. Following a trial that lasted a number of months Gilbey, on 19 September 2002, was convicted of drug-trafficking offences and was sentenced to the death penalty which was subsequently commuted to life imprisonment backdated to 19 October 2001. He was held in Thai prisons until his repatriation to the United Kingdom and his transfer following the repatriation warrant being signed by the Scottish Ministers on 22 February 2010. Here by virtue of section 10(2A) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 it was necessary to fix an appropriate punishment part in relation to the Gilbey’s Thai life sentence. On behalf of Gilbey it was submitted that an appropriate punishment part should be fixed by reference to sections 2 and 10 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 and the court should reach a decision by reference to Scottish domestic sentencing norms for an equivalent offence. There were further submissions on his behalf in relation to mitigating factors that should be considered in determining the punishment part to be fixed. The court considered the issue in light of the Repatriation of Offenders Act 1984 and an Agreement between the UK and Thai governments dated 22 January 1990 and ratified on 6 February 1991, which contained particular arrangements for the inter-state transfer of offenders and for mutual cooperation in the enforcement of penal sentences. The court considered whether the continued enforcement of sentences to the laws and practices of the receiving State and the fixing of a punishment part under the Prisoners and Criminal Proceedings (Scotland) Act 1993 was a domestic exercise and would simply override the Thai sentence imposed, or whether the court should impose a punishment part corresponding as far as possible to the essential characteristics of the original sentence.

Her Majesty’s Advocate v. Lee Donald Stewart and Colin Stewart [2010] HCJAC 25

Wed, 03 Mar 2010 20:56:24 GMT

Criminal Appeal under section 74 of the Criminal (Procedure) Scotland Act 1995:- The respondents have been indicted to Aberdeen Sheriff Court on a number of charges including inter alia:- "On 30 May 2008 at 28 Newton Road, 96 Cummings Park Circle, and elsewhere in Aberdeen you COLIN STEWART and LEE DONALD STEWART did abduct John Wright McPherson Leaper ... and detain him against his will and assault said [John Leaper] and repeatedly strike him on the head and body with a baseball bat and a metal pole, repeatedly cut him on the head with the lid of a can or similar instrument, repeatedly kick and punch him on the head and body, repeatedly threaten to kill him and repeatedly strike on the body with a knife, all to his severe injury and permanent disfigurement.” Here the Crown appealed against the sheriff's decision at a first diet dismissing the above charge on the indictment as irrelevant. Here it was submitted on behalf of the appellant that the Crown had set out sufficient factual averments, together with a date and three loci, to make the charge relevant. It was further submitted that relevancy was properly tested by asking whether the averments were sufficient in law to entitle the Crown to ask the accused to plead guilty or not guilty and a charge was only irrelevant if the facts averred were not capable of constituting a crime. It was submitted on behalf of both respondents that the sheriff had been correct in his approach and abduction and assault were two distinct crimes, and ought to have been charged separately. Here the court considered whether a number of crimes contained in one charge necessarily rendered that charge irrelevant and in relation to the present case whether the fact that the two distinct crimes of assault and abduction, albeit allegedly perpetrated on the victim contemporaneously, should have been libelled separately.

R v Monaghan (Rudie Aaron) CA (Crim Div): 21 December 2009

Wed, 24 Feb 2010 22:07:59 GMT

Under the Criminal Justice Act 2003 s.240A, where an offender had spent time on bail subject to a curfew of nine hours or more in any given day coupled with an electronic monitoring condition, he was generally entitled to an order to the effect that half the number of days spent on bail subject to those conditions should count as time served by the prisoner as part of his sentence. However, in passing sentence a trial judge should take no account of an electronically monitored curfew that fell short of those qualifying conditions.

Attorney General's Reference (Nos.60, 62 and 63 of 2009)

Wed, 24 Feb 2010 22:06:45 GMT

References allowed: When sentencing for manslaughter following a violent attack on a defenceless victim in the street, specific attention should be paid to the consequences of the crime. Crimes which resulted in death should be treated more seriously.

H.M. ADVOCATE v G and Others

Wed, 20 Jan 2010 17:45:05 GMT

Preliminary hearing; This case involved an indictment of three accused on charges including serious sexual abuse and rape of two complainers. The two complainers were, at the time of this hearing, around 12 and 13 years of age. At the preliminary hearing, the accused made representations about the reliability of the complainers' evidence and sought to have it held inadmissable. The accused presented a Devolution Minute and a Minute of Notice. The Devolution notice stated that interviews of the complainers, taken by police officers, gave the complainers opportunites to compare stories and were taken with potential interviewer bias. It was proposed by the accused that evidence should be heard from psychologists who would offer their opinions as to the reliability of the complainers' evidence. The Crown served Child witness notices in terms of section 271A(a) of the Criminal Procedure (Scotland) Act 1995 requesting that the complainers' evidence be taken on commission.