Jennifer Ingles Walker Or Smith Or Liehne v HMA – [2011] HCJAC 51

http://www.scotcourts.gov.uk/opinions/2011HCJAC51.html

This is a succesful appeal decided by the Lord Justice General, and Lords Eassie and Brodie.

On 7 April 2006, after a trial lasting over 5 weeks, the appellant was convicted of the following- “on various occasions between 14 October 1982 and 20 December 1982 both dates inclusive, at [various locations in Edinburgh] you did assault J.S., born 14 May 1982, now deceased…and did cause her upper airways to be obstructed by means unknown, restrict her breathing, all to the danger of her life; and (2) on 20 December 1982 at [a location in Edinburgh] you did assault J.S., born 14 May 1982, residing there, and did obstruct her upper airways by means unknown, restrict her breathing, suffocate her and kill her”. The deceased was the appellant’s daughter.

The case was referred to the High Court in 2010 by the Scottish Criminal CAses Review Commission.

In the appeal it was stated inter alia (1) that the trial judge had misdirected the jury by failing to set out for them the expert evidence which they would require to accept in order to convict and (2) that in the circumstances of this case there was an infringement of the appellant’s right under Article 6(1) of the European Convention to a reasoned judgment.

The child who died was seven months old at the time of her death. Prior to her death, she had attended hospital on a number of occasions having had what the appellant described as “turns”.

There was no direct evidence that on any occasion the appellant had assaulted the child. The Crown case at trial turned substantially on medical inferences that the child had on each occasion, including the last which led to her death, been subjected to deliberate obstruction of her airways.

The Court went at some length through the numerous medical experts who had given evidence on either side.

The appellant’s primary ground of appeal was that there had been misdirection by the trial judge. It was submitted that, standing the complex nature of the case and the divergence in the expert opinion, the trial judge ought to have analysed the evidence in greater detail and offered more guidance to the jury. A number of English authorities provided helpful guidance. In complex cases directions should provide structure, focussing the issues and any material disputes which had to be resolved: one could not rely on the speeches of counsel. The requirements of a fair trial demanded that a jury’s decision be reached on a logically justifiable basis. Thus, in cases involving expert medical evidence, they should, where relevant, be directed on the need before convicting to reject any realistic alternative explanation for the cause of death and on the need for caution in relation to developing medical science. An analogy could be drawn with the trial judge’s duty, in ensuring a fair trial, to give legal directions independently of the manner in which parties presented their case.

In an associated ground of appeal it was submitted that, in the circumstances of the present case, the failure of the jury to provide reasons for their decision had denied the appellant a fair trial in terms of article 6 of the European Convention on Human Rights.

The Crown opposed the appeal. It was submitted that there had been no mis-direction, although accepted that if there had been then there would have been a miscarriage of justice. There might be cases in which it was incumbent upon a trial judge to give specific directions, but that was not so in the present case. While it had involved a number of experts, they had given evidence over five weeks and that evidence had been tested by senior counsel, who had then addressed the jury: in the circumstances there had been ample opportunity for the exposition of the material issues which had to be resolved. Indeed, in a complex case it was often counter-productive for a trial judge to revisit the evidence or focus on particular points; to do so could complicate matters and distract a jury’s focus from other relevant evidence.

In relation to article 6, in the present case, the evidence had been heard in public, recorded and rigorously cross-examined. The indictment made clear the facts which had to be proved and the jury were aware that the onus lay on the Crown in that regard. Moreover, the right of appeal ensured due consideration that there had been a logically justifiable basis for the verdict returned. In all of the circumstances it could not be said that the appellant had been denied a fair trial.

Their Lordships considered the matter, starting with the comments of Lord McCluskey in Shepherd v HM Advocate 1996 SCCR 679.

They then said “Cases involving the deaths of infants allegedly at the hands of a parent or other carer are amongst the most difficult, and potentially the most complex, of all cases coming before the criminal courts. In many such cases, and the present is such, there will be no direct evidence of criminal conduct by the accused towards the child. The case will largely, if not exclusively, depend on inferences to be drawn from medical testimony. In this field, while knowledge advances, there remain many uncertainties. Establishing the cause of a sudden infant death may be very difficult and in some cases may not be possible. If criminal liability is to be brought home to the accused it will be necessary to exclude not only any natural explanations for the death suggested in the evidence, but also any realistic possibility of there being an unknown cause.”

“Where there is on the evidence a realistic possibility of there being an unknown (currently unknowable) cause of death, as there was on Professor Morris’ evidence, the jury should be reminded that this must be excluded before they can convict. Also, of course, the jury will require, before they can convict, to exclude any natural cause of death which is positively suggested in the evidence. This may be obvious, but the jury should be reminded of it. The way in which a jury approaches its deliberations upon the issues before it will be a matter, ultimately, for them to decide; but in a case of the present kind it will be incumbent on the judge to give them guidance. Even where counsel for the prosecution and for the defence have in their speeches fully explored the technical evidence (and they did not do so here), it will be for the trial judge to provide a succinct, balanced review of the central factual matters for the jury’s determination. Where natural causes for the death are suggested in evidence, an appropriate starting point may be to remind the jury what these are, giving a brief explanation of the evidential basis for each of them, and directing them that, if they are persuaded of them or if any evidence with respect to them gives rise to a reasonable doubt about the accused’s guilt, they are bound to acquit. ”

The Court commented that the numerous medical experts had produced a variety of different explanations for the death. It was for the Crown to establish beyond reasonable doubt that the actings of the Appellant were responsible for the death. In view of the competing and innocent explanations from the Appellant’s experts, the Court saw that it was for the trial judge to assist as far as possible with jury’s assessment of the evidence. “The task which it was, in our view, incumbent on the trial judge to perform was not an easy one. There was a risk that, in seeking to identify the position of each of the principal experts, errors might be made. But the fact that the task was difficult does not mean that it was unnecessary. The failure to undertake that task in this case amounted in our view to a material misdirection. It is not disputed that, if we came to that view, the result was that there had been a miscarriage of justice and that the verdict would require to be quashed. We accordingly allow the appeal and quash the verdict.”

The Court did not therefore need to rule on whether the jury required to give reasons for the verdict but they repeated that, in the Scottish system, there is no need for a jury to explain its verdict. However, “it is central to these decisions that the jury’s verdict is not given in isolation but in a framework which includes the presiding judge’s charge to the jury. It accordingly follows that, if in the circumstances of the particular case that aspect of the framework is materially inadequate, the verdict may be vulnerable to challenge under Article 6.” If called upon to do so in this case, they would have found that the failure to direct the jury regarding the technical evidence would have infringed the Appellant’s right to a fair trial.

This case shows the challenges faced by the courts in complex and technical cases. Counsel at the trail did not, in any detail, go through the expert evidence so as not to misinterpret it for the jury. The trial judge clearly felt the same. Appeals can arise where a judge does review the evidence, and one party feels that this has not been done fairly.

However, in a  case of this complexity and importance, one can see clearly why it was felt that the jury ought to have been given as much guidance as possible.

One can only feel for the appellant, convicted 24 years later of killing her child and now with her conviction quashed. One wonders what action the appellant might now take.

Ann Thomson v Scottish Ministers [2011] CSOH 90

http://www.scotcourts.gov.uk/opinions/2011CSOH90.html

This case which proceeded before Lord Brodie is a tragic one.

The Pursuer’s mother was murdered by a Mr John Campbell on 22 August 2005. Campbell was serving a sentence of 8 years imprisonment which had been imposed on 27 August 2002 in relation to two charges of assault to severe injury and permanent disfigurement. However, on 22 August 2005 Campbell was temporarily at liberty, having been granted the privilege of short leave from prison. Previously there appeared to have been errors on the part pf the prison authorities as far as Campbell’s position within the “leave” scheme was concerned.

The Pursuer sued the Scottish Ministers as representing the Scottish Prison Service. She alleged that her mother’s death was caused by negligence on the part of responsible officers who made the series of decisions that resulted in Campbell being temporarily released from prison on 19 August 2005 for a period which included 22 August 2005. She further alleged that the Scottish Prison Service, in contravention of Article 2 of the European Convention on Human Rights, failed to protect the deceased’s life.

The case called on Procedure Roll on the Defenders’ general pleas to relevancy and specification.

The Defenders argued that the basic test was that laid down in Caparo Industries v Dickman [1990] 2 AC 605. There Lord Bridge had put forward a synthesis (the “tripartite test”) which has become the most relevant test for determining the existence of a duty of care by reference to the requirement of foreseeability of damage, a relationship characterised by the law as one of “proximity” or “neighbourhood”, and the consideration that it should be fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other.

It was argued here that the present case was not novel. “It fell within a recognised category of case: the general category being liability for the deliberate wrongdoing of an independent third party and the sub-category being liability of a public authority having some degree of control over the offending third party. That an independent third party caused the relevant harm was not fatal to a claim against a public authority but there had to be a sufficient relationship of proximity to establish a duty of care owed by the public authority to the claimant. Sufficient proximity was essential. A duty to the public at large was not enough; there had to be particular circumstances giving rise to an additional degree of risk over and above that faced by the public at large”.

“Even if the pursuer in the present case could establish a sufficient degree of proximity, regard had to be had to the fact that what was complained of was a series of decisions made in exercise of a discretion. For relevancy it was necessary that the pursuer offer to prove that the decisions of which she complained were outwith the range of decisions available to a decision maker in the exercise of what was a discretion”.

“The pursuer’s Article 2 case proceeded upon the basis that the defenders, as a public authority, had failed to protect the deceased’s right to life. Counsel for the defenders accepted that … the state had an obligation to take appropriate steps to safeguard life within its jurisdiction. That required the putting in place of a criminal law backed by a system for law enforcement but it also required the provision of operational measures to protect someone whose life was at risk from another. However, not every threat to life engages Article 2. The obligation on the state to take preventive action only arises where there is a real and immediate risk to life…The pursuer’s pleadings did not disclose that at the time of his release Campbell presented a real and immediate threat to life. The high point was the averment that “there was an unacceptable risk that Campbell would behave violently during his short term release.” The Article 2 case was therefore irrelevant.”

“Even if proximity could be demonstrated it was senior counsel’s submission that the pursuer had failed to plead a relevant case of wrongful exercise of the statutory discretions to alter supervision levels and grant temporary release. It came to be a point of specification. It was not clear what the pursuer’s case was. Nowhere was there any specification of any breach of the law. … It was not enough to say that the defenders did not exercise reasonable care. It was necessary to say that the decisions complained of fell outwith the relevant statutory discretion. …There must be a real, in the sense of objectively justifiable, apprehension of risk to life and it must be immediate. That was not averred.”

For the Pursuer it was argued that generally there was no liability for the act of a third party but this was a case where the defenders had had control over the third party and therefore had, by releasing him, created the relevant hazard. Counsel accepted that in order to found a case of breach there had to be real and immediate risk to life. He also accepted that there was no express averment to that effect. There were however the averments narrating Campbell’s criminal history, stating that if released he would be likely to commit serious acts of violence upon members of the public, stating that there was an unacceptable risk that Campbell would behave violently during short term release, and stating that he presented a real and immediate risk of danger to the public.

Senior Counsel for the Pursuer argued that the argument on duty of care gave rise to the question as to whether a prison authority could ever be liable where it takes a positive decision to allow the short-term release of a violent dangerous prisoner in its custody, without proper regard to the risk that he may during the period of his release pose a significant danger to members of the public.

The decision for the court was whether a right of action arose if a prison authority released a dangerous prisoner who went on to harm someone who could not have been previously identified as being at particular risk, either as an individual or as a member of a particular class. That there should be such a right of action would be readily understandable to members of the public. A prison authority should only release prisoners when entitled to do so.

Lord Brodie then reviewed various authorities regarding negligence. HAving done so, he determined that the negligence case pled was irrelevant and the case based on that fell to be dismissed.

He commented that “ In the present case it is accepted on both sides that general principle requires something more than foreseeability of harm for there to be a duty of care owed and unless a duty of care is owed and breached there is no negligence and therefore no basis for a claim for damages. The “something more” includes a sufficient relationship as between the injured party and the party sought to be made liable as to merit the description of proximity or nexus. The concept is not precise and its presence or absence is most readily determined by examination of the specific factual situations or categories described in the case-law where, for what are essentially pragmatic reasons, a sufficient relationship has been found to exist. There must however be something special to the injured party that he or she does not share with other members of the public. Illogical as it has sometimes been seen to be, at least in the category of cases to which my attention has been drawn, the something special is special risk of harm. Here the defenders say that the prison authorities owed no duty of care to the deceased and therefore the pursuer’s case is irrelevant. Testing that proposition at the level of general principle I would regard it to be sound in that the pursuer cannot and does not say that the deceased was at special risk of harm from Campbell.”

As far as the attack on specification of the “discretionary case was concerned, Lord Brodie stated that “in order to succeed the pursuer must establish that the decisions she criticises fall outside the limits of a reasonable exercise of discretion. The defenders’ argument came to be one which founded on absence of specification as to why it was said that this was so. It was submitted that the pursuer’s averments were tolerably clear. I would agree. It appears to me that the critical averment is that, contrary to the mandatory requirement of Direction 3 (1) (e) issued by the Scottish Ministers on 11 February 2005, the Governor of HMP Castle Huntly approved Campbell’s application for short term leave without any risk assessment whatsoever. That of itself, if proved, would seem to have the result that the decision to allow Campbell leave was unlawful. Accordingly I would not have refused the pursuer’s averments probation had I taken a different view on the existence of a duty of care”.

Turning to the case based on article 2, Lord Brodie stated that “There is reference to the history and pattern of his offending prior to conviction and to the risk factors. It is averred that on that basis that the Scottish Prison Service knew that “he posed a real and immediate risk of danger to the public.” What is not averred is a real and immediate risk of the death of a member of the public, and having regard to what else appears in the pleadings (which may be taken to be informed by the findings of the Fatal Accident Inquiry into the death of the deceased) it is difficult to see how that might responsibly be averred. In my opinion the case insofar as based on breach of Article 2 of the European Convention on Human Rights is accordingly irrelevant.”

The action was therefore dismissed.

The case was an interesting attempt to have the Prison Service held liable in respect of the release of Campbell. However the Caparo principles have been considered many times and, as a result, this case did not have enough to over-come what is a very high obstacle.

In addition, and despite what is said in the press and by politicians, there is no automatic victory for anyone praying in aid the European Convention on Human Right. However, the existence of the ECHR allowed a further argument to be put before the court, though unsuccessful.

The blame for this horrible event falls on Campbell. However, from a moral point of view, and clearly from the point of view of the Pursuer, it was the release of him by the Prison Service which set matters in train. Once more, as we often see in the courts, what might be seen as moral “responsibility” is a long way from legal liability.

Goodwin v News Group Newspapers – Contempt of Court – 23rd May 2011

http://www.bailii.org/ew/cases/EWHC/QB/2011/1341.html

The above links to the judgement of Mr Justice Tugendhat following a hearing on 23 May. Oddly the parties actively participating were neither of those named in the case title above.

Instead the matter called in connection with an application by the woman with whom Sir Fred Goodwin is alleged to have had an affair. In light of an article in the Daily Mail on 20 MAy, which followed a hearing in court on 19 May, the un-named lady sought to have the judge refer the publisher of the article to the Attorney General because publication of the article was” conduct impeding the purpose the court sought to achieve in making the order against the Defendant”.

The judge ultimately refused to refer the case to the Attorney General. This has already been reported as being a decision in favour of the Mail, but seems to ignore what was actually said in court.

The judge commented that the article made a number of factual statements about the lady in question, but the MAil submitted that “The effect of the false information… was that it would tend to make a reader less likely to identify the lady.”

The judge responded by saying that “another effect of the false information is that it would tend to mislead the reader into believing that it would be in the public interest for the identity of the lady to be disclosed.”

An allegation was made that the ;lady had been promoted when Sir Fred had been in charge at RBS, though nothing in support of that accusation had been put forward at court on 19 May.

Tugendhat J commented “If ANL (Associated Newspapers Ltd) had had evidence of a misuse of corporate power by Sir Frederick Goodwin then that might have been a very powerful argument for discharge of the injunction”.

The Daily Mail in question also had an article by our favourite MP, Mr John HEmming, where he stated it was in the public interest for these matters to be raised and that the injunction had prevented the regulatory authorities investigating matters. Perhaps Mr Henning was unaware of the terms of the court’s judgement the previous day when he wrote his article.

However the judge had made it clear in open court, when representatives of ANL were present, that these statements were incorrect.

Having considered all matters, Mr Justice Tugendhat decided not to refer the matter himself. He did make clear that it was open to the Applicant to do so herself. The Attorney General is capable of determining further procedure in such circumstances himself. “If the Attorney-General does decide to consider this matter, the contents of this judgment will be available to him”.

It can’t be said that the newspaper has been at all successful when it appears that it has published information about the party in question which was clearly against what the Judge said in court the day before.

Here seems to be another example of the press seeking to stretch the boundaries of what they are allowed to publish, and without the Applicant here doing something about it, who knows what action, if any, might have been taken.

It is noticeable that certain of the parties who are alleged to have so-called “superinjunctions” (even though they are actually anonymised injunctions) have been featured in newspapers in what appear to be light and almost substance-less pieces. Clearly the papers know who they can’t talk about, and they deliberately try, it seems, to get them in the papers anyway, especially with fulsome references to their spouses or families.

But perhaps it has been always thus.

Will the Applicant here refer the matter to the Attorney General – we can only wait and see.

Will There Be Any Action Against Mr Hemming MP?

For all that various MP’s such as Tom Harris have deplored Mr Hemming’s conduct, we saw when the Speaker let the Met Police in to the Palace of Westminster how defensive MP’s get when they think people are “going after them”.

Even the various expenses fraudsters and thieves who are now guests of Her Majesty tried to argue that their crimes were protected by privilege (though unsuccessfully).

I see no chance that the House takes any action which would open Mr Hemming up to court action, and I suspect it is unlikely the Attorney General would give the go-ahead for any such proceedings against a fellow MP. (Not, I hasten to say, simply because he is a fellow MP.)

If CTB sought to proceed against Mr Hemming for breaking the injunction (a) does that require the AG’s approval and if not (b) how would a judge view Mr Hemming’s comments.

Would privilege hold or would this fall in to one of the grey areas described by the Master of the Rolls last week?

I don’t know, but suspect those questions will now be academic, at least in this case anyway!

Super Injunctions, CTB and Ms Thomas

There is clearly a debate to be had as regards so called “super injunctions”, privacy and prior restraint issues. However the CTB case is not the one to have as the battleground if the press want things to go their own way.

Here, as in all of the published judgements in anonymised injunction cases on privacy, the courts have carried out the relevant balancing test. On one hand, they have the right to privacy and on the other the right to free expression. The judges did not invent these – instead they are in the law as laid down by Parliament. It is quite clear that each case turns on its own merits and the judges have not been afraid to refuse or withdraw interim injunctions (in the John Terry case, for example).

Here we have a case where, as seems to be standard in recent cases, including Fred Goodwin, the press do not advance any public interest argument at all. Still the judges carry out their balancing test, but the absence of a public interest (rather than of interest to the public) makes it far more likely that an interim injunction will be granted.

It should also be noted that these orders, at this stage, are interim orders pending a full trial where each side would be able to argue its case and put forward witness evidence in support.

It is also noteworthy that, from what I have seen, the recent tack of the press is not necessarily to oppose an interim injunction, but not to consent, thus allowing them to say that they have been “gagged” by the evil celebrity plaintiff.

One stated reason for the anonymised injunction and the strict rules applicable, is to stop jigsaw identification. In more than one of the recent causes celebres there have been articles in the press or on newspaper’s websites which, standing alone, seem to be there for little or no reason, but are in fact one way of the paper to creep round the orders by way, for example, of gushing references to someone being a “family man” and to his glowing spouse etc. The editor clearly knows what he is doing, but there is nothing actually in the article to break the order. In fact CTB and his family have recently been prominent in the press for, I am sure, this very reason.

Turning specifically to CTB and to Ms Thomas, there are four matters which seem to have been ignored by the media as she has travelled round the press and TV studios weeping into her hankie. (1) She was represented at the hearings in this case, as she is one of the named parties. (2) She did not oppose the granting of the interim injunction against herself. (3) She failed to produce to the court a statement or any evidence to contradict that of CTB, thus allowing the court to form a view that there may well have been a sort of blackmail afoot here. (4) The presence of photographers referred to at the hotels where Ms Thomas arranged latterly to see CTB suggested to the court that there was some sort of sting operation in effect.

In addition, neither the newspaper nor Ms Thomas have appealed against the granting of the interim orders, which they could have done if it was felt by their advisers that the court had erred in making the order.

If this were a libel case for false accusations, then the courts have for many years worked on the basis that a finding in favour of a plaintiff and an award of damages will suffice.

However in connection with privacy matters, there needs to be a system of prior restraint open to the courts, though it ought not to be granted automatically. Once the toothpaste is out of the tube, then it can’t go back in. A later award of damages for breach of privacy, as per Mosley, is not sufficient.

We now turn briefly to the failure of the agents for CTB to obtain a relevant order here in Scotland because, in the absence of such, the Sunday Herald felt free to publish yesterday. But already publications in Spain, USA and elsewhere had printed the name. The lack of any application to the Court of Session however left the door wide open for a publication of the type which took place, and this has been known to be the case since the days of Spycatcher, when the book could be bought in Gretna but not in Carlisle, for example.

So, in this case, where we have, allegedly, the newspaper in question working, whether innocent or not, with an apparent blackmailer (as stated by the judge but not specifically alleged by CTB) for the financial gain of one, other or both defendants, the brave Mr Hemming felt it appropriate to jump in today and name CTB.

This was, apparently, to stop the secret imprisonment of thousands of twitterers, notwithstanding that the Attorney General had stated, minutes before, that no such proceedings (and whether or not in secret) were presently in contemplation.

This effort to link the issue with secret imprisonment smacks of the campaign by Mr Hemming re the Family Courts (referred to in detail at http://www.head oflegal.com) and where he was shown to be spouting arrant nonsense.

It is quite clear that Mr Hemming’s disclosure today has only been in the interest of News International, an alleged blackmailer, and Mr Hemming himself. He has abused the privilege he has as a Parliamentarian, and to what end?

As far as the wider argument goes, all the good generated by the “outing” of the Trafigura injunction has been lost as a result of the case of CTB being seen as the present battle ground.

The only people frankly to emerge from this mess with any credit are the judges – they have applied the law as given to them by Parliament – have applied the tests laid down in the legislation – and have tried to uphold the Rule of Law, despite the efforts of others such as Mr Hemming to determine what the outcome should be.

Do we want to be in a situation where the papers are the ultimate judges as to what private mistakes are aired for the prurient interest of some members of the public? The same fine and upstanding press who seem to have done more bugging than even MI5 as described in Spycatcher!