Criminal Trial

REMIT OF A TRIAL JUDGE OF AN ISSUE OF POSSIBLE CONTEMPT OF COURT ON THE PART OF AAMER ANWAR 2008 HCJAC 36

Thu, 03 Jul 2008 14:57:00 GMT

Judgement of Lord Osborne handed down in relation to the Aamer Anwar contempt of court hearing. On 17 September 2007, at the High Court in Glasgow, Mohammed Atif Siddique was found guilty after trial on several charges under the Terrorism Act 2000 and 2006. On 23 October 2007 in Edinburgh he was sentenced to imprisonment for a total period of eight years.

On the day when the jury's verdict was returned, Aamer Anwar the respondent in this remit, who had been the panel's solicitor in connection with his trial, read a statement outside the court building in the presence of members of the public and journalists. The making of this statement was televised. Contemporaneously with the making of that oral statement, a press release was issued by the respondent.

The judgement considers whether the comments made were sufficient to justify a conviction for contempt of court.

Her Majesty's Advocate v. Mark Devlin Murray known as Kieran Kerrigan [2008] HCJ1

Thu, 21 Feb 2008 09:13:00 GMT

Criminal - Suitability of Proof in Mitigation:- On 15 January 2008 at Edinburgh High Court the accused pled guilty under section 76 procedure to two charges of being concerned in the supply of diamorphine and cocaine under section 4(3)(b) of the Misuse of Drugs Act 1971. The Advocate Depute moved for sentence, tendered a schedule of previous convictions relating to the accused and read out a narrative of the facts which stated inter alia that the accused was seen leaving 15D Powis Place, Aberdeen, and was detained for the purposes of a drug search during which a significant quantity of diamorphine(£3,270), cocaine (£18,650), drugs paraphanlia (including electronic scales) and £4725 were recovered. Thereafter counsel for the accused made his plea in mitigation and stated inter alia that the accused accepted the Crown narration but went on to explain that the accused was providing a safe house for the drugs, in return for which he was to receive drugs for his own use and on the day he was detained he had received a phone call informing him that the drugs and money were to be removed from his flat and taken to George Street in Aberdeen and he had been in the process of doing that when he had been detained. The judge allowed the Crown an opportunity to confirm the position overnight and the Procurator Fiscal spoke with the reporting officer. The Crown therafter advised the court that they did not accept the position advanced on behalf of the accused, however, could not actively dispute what had been stated on the accused's behalf. The judge indicated that he was unable to accept the factual basis for the plea in mitigation that was being put forward and a proof in mitigation was offered to the accused. Counsel for the accused made clear that the accused did not wish to take up the offer of a proof in mitigation. Here the judge states that if it remains his position that he does not wish a proof in mitigation the judge will sentence the accused on the basis that his involvement in the supply of the diamorphine and cocaine was not limited to his providing a safe house for other individuals.

The Scottish Ministers for a Recovery Order in Terms of the Proceeds of Crime Act 2002 –v- Marie Buchanan and Others 2008 CSOH5

Thu, 24 Jan 2008 14:39:00 GMT

Petition for a Recovery Order in terms of section 266 of the Proceeds of Crime Act 2002 - The only live issue at this stage was whether the petitioners have proved on a balance of probabilities that certain assets are recoverable property in terms of the 2002 Act in respect of which the court must make a recovery order. In addition the petition seeks an order in respect of a standard security granted by Mrs Buchanan as associated property in terms of section 245 of the 2002 Act.

Her Majesty's Advocate v. M.A. 2007 HCJ15

Thu, 06 Dec 2007 16:20:00 GMT

Preliminary Hearing - Criminal Procedure (Scotland) Act 1995, section 275(1):- On 19 November 2007 the applicant was indicted to appear at a preliminary hearing at Edinburgh on the following charge:- "On 14 November 2006 at [address] you did assault T G, c/o Fife Constabulary, Kirkcaldy and did remove her trousers and pants, struggle with her, handle her breasts, push her onto a couch, hold her down, force her legs apart and you did rape her." An application under section 275(1) of the 1995 Act was made on behalf of the applicant. Section 274 of the 1995 Act prohibits, in the trial of a person charged with a sexual offence, the admission of evidence or questioning designed to elicit evidence, showing or tending to show that the complainer is not of good character, has engaged in sexual behaviour not forming part of the charge, has engaged in other behaviour as might form the inference that the complainer consented to the acts that are the subject of the charge or is not a credible or reliable witness, or has ever suffered from a condition or predisposition as might found such an inference. Here an application was made in terms of section 275, for the court to admit such evidence. Here the court considered whether the section 275 application complied with the mandatory statutory requirements set out in section 275 (3), in particular whether the application, and the details of the evidence, questioning, issues, reasons, and inferences which are referred to in paragraphs (a) to (e) of the sub-section were set out in the written application in a sufficiently specific and comprehensible manner for the application to be granted.

Her Majesty's Advocate v. Christopher Thomas Tracey 2007HCJ14

Thu, 29 Nov 2007 10:13:00 GMT

Criminal Trial:- The accused was indicted to the High Court in Dunfermline in respect of a contravention of the Criminal Law (Consolidation)(Scotland) Act 1995, Section 5(1), namely a charge of having unlawful sexual intercourse with a girl then under the age of thirteen years. At an earlier preliminary hearing the accused had tendered a plea of guilty as libelled as he accepted that intercourse took place on two occasions on the understanding that the complainer was aged 15 or 16. The Crown's contention was that intercourse took place on one further occasion after the accused had been advised of the complainer's true age. It was by agreement between the Crown and the defence that a proof in mitigation be held to to determine (a) the state of the accused's knowledge regarding the complainer's age that would require evidence to be led; and (b) that intercourse did take place on a third occasion as that was not accepted by the accused. The accused's position was that he was advised of the complainer's true age but that intercourse did not take place after that time when he was so advised. The presiding judge at the preliminary hearing stated that in his view this was possibly a matter for a jury at trial and that the case was about knowing what the complainer's age was. The judge directed that a plea of not guilty be recorded and the case was continued to a further preliminary hearing following which a trial diet was assigned. The case proceeded to trial and at the end of the Crown case submissions were made by both parties. The trial judge considered the earlier procedure in the case, in particular, that belief of the accused that the complainer was thirteen or older was no defence and therefore irrelevant and that all the Crown had to establish for conviction was that the complainer was under thirteen years of age and that the accused had had sexual intercourse with her. In the past juries had competently returned verdicts with riders recommending leniency and the trial judge here considered whether that was appropriate. In addition, the trial judge considered whether it was appropriate for the judge at the preliminary hearing to (1) have the plea of guilty withdrawn without recourse to the Appeal Court and (2) to direct that a plea which has not been tendered by or on behalf of the accused, and which is directly contrary to the plea tendered by the accused. The trial judge considered whether the complainer's age was an issue going to mitigation of sentence and therefore a matter for him, and not for the jury, to determine.

Note re Aamer Anwar

Tue, 06 Nov 2007 19:23:00 GMT

Criminal Note:- On 17 September 2007, after a high profile trial at the High Court in Glasgow, Mohammed Atif Siddique was found guilty by a jury of inter alia a contravention of section 57(1) of the Terrorism Act 2000. Following the verdict of the jury Siddique's agent, Aamer Anwar, made a statement on the steps of the High Court to the media in which he made a number of critical comments concerning the case including:- "...Today Mohammed Atif Siddique was found guilty of doing what millions of young people do every day, looking for answers on the internet. This verdict is a tragedy for justice and for freedom of speech and undermines the values that separate us from the terrorist...Atif Siddique did not receive a fair trial...". Here the trial judge cited the personal views of the agent as being untrue and misleading and an attack on the trial process, in particular upon the jury, the witnesses, the advocate depute and the trial judge himself. In addition to the comments made on the steps of the High Court the agent also made certain comments on the BBC Newsnight programme. Due to the foregoing the agent was written to by the Depute Clerk of Justiciary at the behest of the trial judge to afford the agent the opportunity to make any submissions he wished before the court considered any further action. Here the court remitted the question of contempt of court to the High Court in Edinburgh for further procedure, the trial judge having recused himself from dealing with the question of contempt. It was further suggested by the trial judge that a panel of three judges may be appropriate for the final substantive hearing.

Contempt of Court Hearing in relation to the trial of Keith John Burrell and Derek George Riordan - Edinburgh Sheriff Court 5/9/07

Thu, 18 Oct 2007 11:42:00 GMT

Contempt of Court

STV Central Ltd., the Scottish Daily Record and the Scottish Sun Newspaper all appeared at a Hearing in relation to an alleged contempt of court. A news bulletin and newspaper articles had featured a picture of Derek Riordon, a professional footballer and one of the accused in an assault trial, together with details of the evidence given on the first day of the trial. The trial had been adjourned part heard. It was argued on behalf of all 3 bodies that the decision to publish a photograph of the accused had been made on the basis that he was a local personality, was known to a section of the public in Edinburgh and was prominent in footballing circles, and that printing a photograph of him next to a report about the trial would not pose a substantial risk of prejudice. The Sheriff held that there had been contempt. It was important to bear in mind the balance between the rights and freedoms of one individual and those of others. Identification was a critical issue in the trial and the issues surrounding identification were crucial to the defence of the two accused. The Sheriff decided that the publication of Mr Riordon’s photograph in these circumstances created a substantial risk that the course of justice would be seriously impeded or prejudiced. Great care and attention had to be given to the publication of a photograph of an accused person in the course of a trial if identification was an issue. This rule was obvious and well established and the conduct in this case demonstrated a significant and serious lapse in relation to that rule. This was reflected in the financial penalty of £1,75 imposed on each of the bodies concerned.

Her Majesty's Advocate v. L.C. [2007] HCJ10

Wed, 03 Oct 2007 17:40:00 GMT

Continued Preliminary Hearing - Devolution Minutes:- Four minutes raising devolution issues were argued at a continued preliminary hearing. The minuter was indicted on a charge of culpable homicide:, namely- ".... on (date) at (address) she did supply a syringe and a controlled drug, namely (heroin) ... to (K.B.) then residing at ... knowing or believing that he would inject said drug to the danger of his life and subsequently K.B. did inject a quantity of (heroin) ... into his body and lapsed into unconsciousness and she did not seek prompt medical attention for him and he subsequently died and she did kill him ....". On behalf of the minuter it was submitted:- (1) that the charge of culpable homicide per se is a breach of Article 7.1. (namely that "no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence... at the time when it was committed....."); (2) that a charge of "failing to seek prompt medical attention" was not a crime; (3) that "failing to seek prompt medical attention" amounted to a breach of Article 7.1. and (4) that the Lord Advocate having granted immunity to certain medical people who distribute needles to drug addicts, and who will not be prosecuted for such distribution, is discriminatory and a breach of the minuter's Article 14 and Article 6 rights.Article 14 provides inter alia:- "14....The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status". Article 6 provides inter alia: "In the determination... of any criminal charge against him, everyone is entitled to a fair.... hearing.....". Here the court considered the four minutes.

Her Majesty's Advocate v. D.P. 2007 HCJ 07

Tue, 11 Sep 2007 08:22:00 GMT

Criminal - Preliminary Issues and Devolution Issue:- On 29 June 2007 the minuter, a 52 year old man, appeared at a preliminary hearing at Glasgow to answer an indictment in which there were four charges relating to indecency. The minuter raised preliminary issues within the meaning of section 79(2)(b) of the Criminal Procedure (Scotland) Act 1995 and a devolution issue within the meaning of schedule 6 to the Scotland Act 1998. The preliminary issues related to objections to the latitude of time taken by the prosecutor in the drafting of charges (1), (3) and (4). It was submitted on behalf of the minuter that the failure to give greater specification deprived the Minuter of fair notice and deprived him of the ability to rely on a special defence of alibi. It was further contended that charges should be separated with a view to trying charges (1) and (3) in a separate trial from that in which charges (2) and (4) were tried. The devolution issue related to a contention that it would be unlawful for the Lord Advocate to proceed with charge (3) given that it related to alleged conduct between 27 June 1982 and 7 August 1984 and that the Minuter was interviewed under caution by police officers in England during the course of 1996 in connection with the subject matter of the allegation contained in that charge and to continue in respect of that charge, after a delay of 11 years, would result in a contravention of the minuter's human rights as guaranteed by Article 6(1) of the European Convention.

Mohammed Sarfraz Satar & Ronnie Abimbola Decker v. Her Majesty’s Advocate [2007] HCJAC30

Mon, 14 May 2007 22:00:00 GMT

Note of Appeal under section 74(1) of the Criminal Procedure (Scotland) Act 1995

Her Majesty’s Advocate v James Cameron and Douglas Colin Fleming [2007] HCJ

Fri, 05 Jan 2007 00:00:00 GMT

Criminal

Scottish Ministers v. Linda Doig & Steven Doig & David Dodds Cameron [2006] CSOH 176

Thu, 23 Nov 2006 00:00:00 GMT

Proceeds of Crime Act 2002

The Scottish Ministers v. George McGuffie and Others for An Interim Administration Order in Terms of the Proceeds of Crime Act 2002 and For Warrant and Inhibition and Arrestment [2006] CSOH 34

Tue, 28 Feb 2006 00:00:00 GMT

Proceeds of Crime Act 2002

Her Majesty's Advocate v David Nesbit Welch

Fri, 17 Feb 2006 00:00:00 GMT

Criminal Procedure

Her Majesty's Advocate v Andrew McGhee & Co

Mon, 16 Jan 2006 00:00:00 GMT

Criminal Procedure - Failure by Crown to move for

James McDonald v. Chief Constable Central Scotland Police and Others

Fri, 18 Nov 2005 00:00:00 GMT

Action of Interdict and Damages - Car Clamping:

A.R. v. Her Majestys Advocate

Wed, 24 Aug 2005 22:00:00 GMT

Effect of Inelligible Jury Member: