How One Careless Question Led to a Miscarriage of Justice – Sivero v HMA

Yesterday (23rd January 2013) Lady Paton delivered the opinion of the court, which included Lord Mackay of Drumadoon and Lady Cosgrove, in an appeal against conviction by Mr Salvatore Sivero.

The case is a fine example of the importance of what, to the lawyer asking the question, might be an innocuous enquiry, but which can fundamentally change the outcome of a case.

The case concerns the long-standing rule that an accused person’s previous convictions should not be before the judge or jury deciding on the guilt or innocence of the accused. Despite frequent calls by newspapers for the law to be changed to allow previous convictions to be disclosed, and despite erosion of the safeguard over recent years the principle remains intact.

Why not disclose previous convictions? After all, if Joe Bloggs stands in the dock accused of stealing a car, and he already has 25 convictions for doing so, then surely a jury should know this, as he is more likely to have been guilty of a car theft than John Smith, who has no convictions for anything?

That, as far as it goes, is true. However, it does not amount to evidence that Mr Bloggs stole a car at 7.20 am on 24th January 2013 from a car park in Dingwall, for example. Indeed the knowledge that Mr Bloggs was a car thief would almost certainly lead the jury to convict him of the offence in Dingwall, even where the actual evidence might only be circumstantial or indeed worse.

That of course means that some guilty men (and it is usually men) are acquitted. I am firmly in the camp that it is better for a guilty person to be acquitted than for an innocent one to be convicted.

So we turn to the case of Mr Sivero.

He faced two charges of robbery committed on 19 July 2011. There were noticeable similarities between the two incidents. In particular both occurred in the Edinburgh area; both involved a robber with a knife; the complainer in each case was alone in charge of a shop, outwith normal working hours; in each case, money was taken and the knife was left at the premises; one robbery occurred within a few hours of the other.

Mr Sivero offered to plead guilty to charge 1 and not guilty to charge 2. This was not accepted by the prosecution, so the case went to trial on both charges. The defence did not ask for an acquittal on charge 1, and he was duly convicted. On charge 2 he was found guilty by a majority.

He appealed against the conviction on charge 2.

As Lady Paton narrated:-

As the trial judge sets out at pages 6 to 8 of his report, a police officer DC Peter Stark gave evidence about images from some CCTV footage from a Scotmid store which the appellant had visited prior to the robbery of the second shop. DC Stark told the jury that he knew the person shown in certain images. He was “Salvatore Sivero” (the appellant).

As the appellant’s counsel explained to this court, DC Stark gave his evidence in the following way. He said that the robberies had occurred on Tuesday 19 July 2011. On Wednesday, the day after the incidents, he had been looking at the police intranet briefing site. He had seen images of a person whom he recognised as the appellant. He was shown the images in court. He indicated to the jury that he recognised “a male known to him as Salvatore Sivero”. As the trial judge records in his report, the following exchange then took place:

AD Did you play any other part in this enquiry?

DC Eh … I made some enquiry on the Wednesday with the Edinburgh Prison to find out if, eh, Mr Sivero was in or out of custody and was told that he had been released from custody in 2009.

The trial judge reports that there was a noticeable pause at the start of the answer, before DC Stark resumed speaking and gave his explanation about making the enquiry.

Clearly the disclosure that the accused had been released from custody in 2009 suggested most strongly that he had previous convictions! After all, he had not gone to Saughton for a holiday!

Lady Paton went on to say:-

Defence counsel waited for an appropriate break in the evidence, then moved the court to desert the trial pro loco et tempore. The defence position was that the police officer’s recognition of the appellant, taken with his evidence that he had, that day, checked with Edinburgh Prison, gave rise to a reasonable inference that the officer had had previous dealings with the appellant, knew that he had received a custodial sentence, and was checking to see whether or not he had been liberated. The fact that he had to phone the prison might also suggest a sentence of some length. The Advocate depute, when responding to the motion to desert, accepted that the police officer’s reference to custody implied a previous conviction and might be prejudicial, but contended that any prejudice could be cured by an appropriate direction.

The judge ruled that the trial should continue and that a direction to the jury would cure any prejudice there might have been. In the charge to the jury the judge said:-

“Before coming to the generalities, I want to give you one specific direction about a matter that has arisen in this case. During the … advocate depute’s examination of Detective Constable Peter Stark, quite a short witness, who identified the accused from video stills, you may have noticed a reference to enquiries being made at Edinburgh Prison.

Well I’ve looked into this matter with the assistance of counsel, and I am satisfied about two things. First of all, the evidence in question emerged in error, and second, the evidence that emerged in error has no relevance whatsoever to the charges faced by Mr Sivero on this indictment that it is your responsibility to decide. Therefore, I direct you to disregard anything said about that … particular matter by Detective Constable Peter Stark in its entirety, and to decide the case only on what is accepted, or found to be the relevant evidence that has been put before you.”

When it came to the appeal DC Stark’s witness statement was produced to the court. That statement clearly indicated, quite legitimately, that DC Stark knew that the accused had a number of convictions for similar offences and had received a lengthy sentence previously. The problem in this case of course was that that ought not to have been disclosed to the jury.

Mr Sivero’s counsel and the Advocate Depute argued as follows:-

For the appellant it was said that it did not matter whether there had been an actual breach of section 101 of the Criminal Procedure (Scotland) Act 1995 or whether this was one of the “intermediate” cases referred to in Deighan v MacLeod 1959 JC 25. There was no obvious reason for the question put by the advocate depute which elicited the reference to Edinburgh Prison. The information accidentally blurted out by the officer was so prejudicial to a fair trial for the appellant that the diet should have been deserted. The trial judge had erred in concluding that the modus operandi in each robbery was not similar. Where the appellant was accepting guilt of charge 1, the similarity in modus operandi in charge 2, taken with the disclosure of previous convictions, would result in prejudice to the appellant in that the jury would be much readier to convict of charge 2. The trial was relatively short, and accordingly the disclosure would be fresh in the jury’s mind. No direction could cure the prejudice.

The Advocate depute emphasised that there had been no deliberate flouting of the prohibition against disclosing convictions. The trial depute had not intended to bring out that information. The information in the officer’s answer had not been so grave that it could not be cured by direction. It was a matter for the trial judge’s discretion. He had given a specific direction, and the jury must be deemed to have acted on it. It was not clear how any similarity in modus operandi in charges 1 and 2 contributed to any prejudice. This ground of appeal should be refused.

The Appeal Court accepted that what occurred was not deliberate and that the prosecutior had not sought to elicit evidence relating to the officer’s inquiries of Edinburgh Prison. However the court considered that the question “Did you play any other part in this inquiry?” was unnecessary and prima facie careless. This was for the following reasons.

[15] First, there was no easily understandable reason behind the question. Once the officer had viewed the images in court, and explained that he knew the male person shown in them Salvatore Sivero, he had provided the necessary evidence. There was no point in asking anything about the appellant’s employment or holiday abroad, and if the advocate depute wished simply to elicit the fact that DC Stark had passed on his identification information to the officers leading the robbery inquiry, a much more carefully phrased question could have achieved this. The officer himself explained in his witness statement: “I took no further part in the enquiry”.

[16] Secondly, the information contained in DC Stark’s witness statement (from which the Advocate depute was working) should clearly have alerted the questioner to the fact that this officer knew that the appellant had previously committed similar robberies of petrol stations and shops in Edinburgh. Accordingly great care had to be taken not to elicit any of that information.

[17] Against that background, it is our view that the question put was lacking in the level of care called for in the circumstances. While there may have been no deliberate intention to elicit previous convictions, and while there may have been no actual breach of section 101 of the 1995 Act, we consider that the observations of Lord Justice-Clerk Thomson at page 29 of Deighan v MacLeod 1959 JC 25 are wholly apposite:

“The assumption of the provisions is that somebody who is exercising control over the trial is in a position to lay the prohibited information before the Court. There is an injunction clearly laid on the prosecutor, and if the prosecutor deliberately flouts it, then as the cases show, a conviction cannot stand. Where, on the other hand, in answer to a properly framed and competent question, a witness ultroneously includes in his answer something pointing to the accused’s having been previously convicted, the injunction is not infringed because the contravention is not the act of the prosecutor and he cannot be regarded as having laid the information before the Court. (I should interpolate that when such a contretemps occurs the safeguard for the accused, in solemn procedure is provided by the judge’s warning the jury, and in summary procedure by the judge’s good sense.) Intermediate cases may be difficult but it can safely be said that prosecutors must be very careful, and if by carelessness in framing a question or by pressing a witness too far despite the sort of warning signs one sometimes sees, the prohibited information is allowed to come out, then the prosecutor must pay the price, and rightly so, because as a rule the prosecutor knows quite a bit about the witnesses and their means of knowledge and ought to be on his guard.”

 

[18] Furthermore, the trial judge had been made aware – during the submissions concerning the possible desertion of the trial – that the appellant’s position was that he accepted that he was guilty of charge 1. Thus the trial judge was aware that the jury would be told, at some stage before they retired to consider their verdict, of the appellant’s acceptance of his guilt in respect of charge 1. In our view (contrary to that of the trial judge) there were significant similarities between the robbery committed in charge 1, and that committed in charge 2. We therefore consider that there is a significant risk that PC Stark’s disclosure of the appellant’s previous prison sentence, when added to the appellant’s admission of guilt in respect of charge 1 and the similarities in modus operandi between charges 1 and 2, may have influenced the jury in favour of a verdict of guilty of charge 2, thus resulting in prejudice to the appellant. When we also take into account the lack of care in the prosecutor’s questioning which elicited the unwanted disclosure, we consider that the scales in this admittedly “intermediate case” (cf Deighan v MacLeod cit sup) tip in favour of the appellant. In our view the trial judge erred in the exercise of his discretion when he refused to desert the diet pro loco et tempore. We are satisfied that this resulted in a miscarriage of justice. We shall accordingly allow the appeal and quash the conviction in respect only of charge 2. The conviction in respect of charge 1 stands.

So, as a result of a single careless question, a conviction was quashed as a miscarriage of justice. I do not mean to suggest that this is simply a loophole or technicality through which Mr Sivero escaped conviction. In fact, as he was always going to plead guilty to charge 1, there might be more credibility attached to his plea of not guilty to charge 2. As the Appeal Court identified, there was enough in the case, and the answer given, to create a substantial risk of prejudice and one incapable of being dealt with by way of the judge’s direction.

Why did the prosecutor make the mistake?

I do not know, but from my own experience of asking questions in court and watching others do so, there is a natural impulse to fill the silence. This is especially so in a jury trial, where there will often by members of the public in the gallery, to go along with the judge, jury, lawyers and court officials present. If you have just had a question answered, and you are thinking about what else you need to enquire of a witness, then there is a tendency to fill the quiet with something – and a question about a further part in the inquiry worked normally be an appropriate “filler”. Usually the answer would be “No”, or at least nothing prejudicial.

As the court accepted, the prosecutor was not engaged in some fiendish plan to reveal the accused’s convictions. I suspect that the prosecutor wanted the earth to open up beneath their feet when the question was answered. Indeed it is possible that the prosecutor, who clearly was about finished with DC Stark, might not have heard the answer, instead getting organised for the defence to cross-examine the officer, or for the Crown to call its next witness!

I once conducted a case where the shorthand notes of evidence were printed up, and where the Shorthand Writer faithfully recorded each and every “um” and “em” which came out of my mouth. It seems that every question I asked started with an unintelligible noise of some variety!

So the lesson is clear. No matter how long the silence is, if you are asking questions in court, make sure you know what you are asking, and why, and do not just drop something in to fill the gap – who knows where that might lead!

Posted by Paul “The Quiet Man” McConville

 

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77 Comments

Filed under Criminal Appeals, Criminal Law

77 responses to “How One Careless Question Led to a Miscarriage of Justice – Sivero v HMA

  1. ccl

    Any cases where there was suspicion that the defence tried to sneakily elicit a similar response?

  2. Could the defendant be re-tried on charge 2 or is that it finished when he wins the appeal ?

  3. Geddy Lee

    Is it not the case that trials would be better served without a jury? Relying on the JUDGE, who at least understands the law, to come to the right decision seems a much more logical move.

    What is the case for Juries in todays day and age? It seems bizarre to me that monumental decisions are being left to JOE PUBLIC, with no guarantee that any member of any jury has understood a single word of any case in which they are involved.

    • Geddy I think you underestimate the worth of your fellow men and women. In most cases the jury are very well aware of the circumstances presented to them and in complex cases the presiding judge and acting counsel will be at pains to ensure that the members of the jury are in full understanding of all the facts. To fail in this point would mean that they are failing in their collective duties on behalf of victim, defendant and court.

      The removal of juries would end all rights in justice as corrupt practices would surely occur where no fair or proper trial could be provided to the defendant. Just look at the countries that adopt this style of justice and tell me that they are fair and you would want to have that system in the UK, or anywhere for that matter.

    • dan

      I am no legal expert, but I would like to offer a contrary view to the one you advance about juries being a liability. I was once a jury foreman. The charges against those accused of the crime are irrelevant here. What is relevant is that we, the jury, knew the persons accused of the crime were guilty as sin. Further, we knew, could see with our own eyes, that the man who had been assaulted by the accused persons had clearly been intimidated by them. So much so that he withdrew the allegations made against them, much to the chagrin of the policemen who had taken his original statement. And yet, we were ‘forced’ to return ‘that bastard’ verdict of ‘not proven; and since the accused persons had already spent some time on remand, they walked free from the Sherif Court.

      And why, because we were able to grasp the directions given us on the need for a consistent chain of evidence. A blood sample had been taken from the assaulted man and handed to the police. Unfortunately the police had not noted the name of the doctor who had handed over the blood sample. Consequently, the procurator could not say categorically that the sample, which was an important piece of evidence, was the one taken from the victim on the night of the assault. No coherent chain of evidence—no guilty verdict.

      Granted we were directed by the Sherif, but we were able to grasp the point and see, reluctantly, where our duty lay.

      What I will say in support of your view is that to a man, and woman, we, the jury, thought that by returning a ‘not proven’ verdict, the culprits could be retried at some future date. I now know that is not the case.

      Finally, I will say this, I was appalled by the barely coherent presentation of their cases by both the defence and the prosecution. At one point we were actually told to disregard a full day of testimony (it was never explained why we should). On another occasion we were asked to retire while legal points were argued. I thought the whole thing was a shambles and that the only people to come out of it with any plus marks were we, the jury.

  4. Interesting case Paul, and personally agree with you that the individual rights of a person should be protected at all times. The erosion of our rights is not just being scrapped away but dirty great excavation machines are eating large chunks daily, all in the name of “protecting us from evil”. Personally I think this is bullshit and only allows Govmt from UK and more arrgressively USA to watch and monitor for far more sinister purposes. I do not agree with the mantra that if you are doing nothing wrong then there is nothing to fear. This is blind ignorance of the reality behind snooping by Gvmt agencies.

    Your other point of keeping mum is a well learnt lesson. I was taught in business and personal life very early on that if you have nothing positive to say then shut up…………It may leave “uncomfortable silences” but better 30 secs of this than the shitfest that normally subsequently follows.

    Thanks for the article.

  5. Geddy Lee

    Michael, I certainly would not want anyone, with no legal experience, deciding my fate in a court of Law.

    That effectivley is what Trial by Jury entails.

    Just look at the countless cases , especially in the US, where Juries have sent men and woman to their deaths on the most tardy of evidence.

    I hope that eventually, some time in the future, cases will be solved , and innocence /guilt proven, by the use of fail safe “Truth Drugs”.

    This technology is currently available, but I undestand the opposition .

    In the meantime, I would take my chances with a Judge anytime over a dozen solodiers , sailors and candlestick makers

    • Respect your opinion but would have to disagree. Far more miscarridges of justice and corruption in sole judge decisions.

    • Grab the Grass

      Don’t forget that, exactly like this case, there are many avenues of appeal open to those found guilty where there are no juries and still there are numberous cases going all the way to long jail terms or death and not overturned. In many of the US cases, the lack of properly funded defence lawyers and abuse of process by police officers has a big part to play. Juries are much more likely to understand the issues than many of the judges who still come from a very narrow section of the population.

      My usual take on silence in discussions like this is the old phrase – Better to keep your mouth shut and have people think you’re stupid than open your mouth and confirm it(!)

    • Steven brennan

      Geddy
      The drugs can be administered to affect the result,
      I do agree that 12 random members of the public deciding my fate would be a real worry, but as previous post said they are guided by the judge as to the facts of law.
      When juries are picked there is a process which allows both sides to eliminate the rogue element.
      I also agree with the comment “if you do nothing wrong you have nothing to fear” as this has proved to wrong on many occasions.

    • Pensionerbhoy

      @Geddy Lee

      It is not difficult to see where you are coming from. However, juries are not meant to be legal eagles but good men and true who are meant only to listen to the case from both sides and base their decision on the FACTS put before them. I believe that if there are legal technicalities that they are unable to get their heads round, then they should either admit that to the court and be directed or given clearer explanations until they can fully understand. If that is not enough then ask for a retrial. Maybe I am wrong, but I would hate my fate in any life or death situation to be in the hands of any one person. I would agree, however, that in some trials the legal interpretations are so complex that a jury may not be a wise method of making a judgement. Heavens, there have been cases where the legalities and technicalities have been beyond the intellectual capabilities even the learned judge and the lawyers.

  6. Richboy

    Geddy and Michael, I agree to some extent with both sides. I think that judges alone should deal with the initial phase of a trial where the alleged offense is not of a serious nature (ie possible long stretch in prison if guilty). Any grievances could then be dealt with by an appeals court.

    This would speed up the process and clear any backlogs in the courts. It would also be cost effective. I know the purists will not agree with bringing costs into the justice system but, in these harsh times, it is inevitable.

    Serious cases must be dealt with by a jury. This removes the possibility of corruption in the judicial system and, if all jurors are good and true, provides the appellant with the fairest of chances. Again, as in the case above, Judges and jurors errors can be dealt with by an appeals court.

    At the end of the day we must be pragmatic. The justice system must serve all of our needs but must not become so costly and cumbersome that it descends into an ineffective and lengthy process for all concerned.

  7. Trial by jury and innocent until proven guilty ! No to the lynch mob mentality !

  8. Steven brennan

    Should have said i disagreewith the comment

  9. Steven brennan

    11 comments in 7 hours from 6 participants
    Apparently the majority dont want random thoughts re scots law.
    Perhaps Paul is going out tonight and didnt have time to monitor the site so launched a wee sidewinder.

    • Steven brennan

      Geddy
      How s Alex and Neil and are you still touring?

    • Den

      I personally want thoughts re Scots law.

      I particularly liked this one and hope that there are many more thought provoking posts.

      I don’t feel the need to comment, if I do I will. The number of comments posted is in no way an indication of the quality of the post as most of them seem to come from the same participants banging on about the same topics.

    • Pensionerbhoy

      Steven

      That is why I limited mine. I did not want hog the forum. 🙂

      • Steven brennan

        PB
        If you can keep some of the total eejits off the forum charge on.
        I have never seen anyone make a bad comment or disrespect your posts, They are always well scripted and thought out,contrary to the majority .
        Mon the pensioners!!

  10. Clarkeng

    FFS lads innocent until proven guilty!!!
    Are we no gettin a wee bit kerried away.
    That sounds far too much like justice being done.
    Good effort to change the subject Paul but lets cut to the chase.
    Was the accused a bluenose or a tim?
    Did he pay any tax or NIC on his ill gotten gains?
    Or most importantly was the judge who allowed the appeal completely wrong because the evidence really showed he dun it??!!
    Pensionerbhoy where are you when I need you?
    Say something nice and bring some fun into this.

    • Den

      Clarkeng,

      It is revealing that you are teaming up with Carson to deflect this blog.

      True trolling behaviour and evidence that your intention is to disrupt this blog whatever the subject at hand.

      • Clarkeng

        @Den
        Not trying to deflect just interjecting a bit of humour before my diatribe on the merits of withholding the records of scumbags from a judge or jury.
        Sorry if you dont find it funny but in the light of recent posts on the last few subjects I thought it was.
        Will have my considered opinion ready for the final sumation to the jury.
        And it wont be funny.

    • Pensionerbhoy

      @Clarkeng

      I posted my own bit before reading others. Please find me a jury. I fear de judge might be a bigot.

      As for the issues tonight, I wanted everything to be nice and pink at Mari’s court case but I see someone has let a garter slip somewhere. I have engaged my sniffer dogs (I am fast running out of tissues cleaning up behind them) to find the culprits and bring them to justice. A judge or a jury trial will depend on the colours they are wearing, of course. I must check that Paul fellow. There is something fishy there. He wears red when at home but blue when he is away from the house and yet I get the feeling he is green with envy- mmm!

      • Clarkeng

        @Pensionerbhoy
        I foreseen trouble ahead with my poor attempt at humour in my earlier post and it came.
        Thank you for responding to my call for rescue.
        I think Paul after suitable interrogation might crumble and reveal a penchance for a wee rose pink or similar to encourage his feminine side as well.
        Sounds like a punter who backs all the horses in a race.
        Anyway back to the subject in hand before we get checked.
        In our day I seem to remember at sentencing that the scumbags could ask for numerous unlimited previous offences to be taken into account.
        I have always been under the impression that this was to deal with everything in one fell swoop and in the hope of lightening the sentence based on their admission of such guilt.
        Have I been wrong all these years?
        Sometimes the law is an ass of that there is no doubt and I personally dont see the apparent risk to a jury or judges findings or level of sentencing based on knowledge of previous convictions.
        Before the liberal masses erupt let me say that is only my opinion and it maybe changed provided the appropriate arguments are put forward.
        Notwithstanding my opinion the law is the law and needs to be adhered to.
        Scumbags 1 Society 0.

  11. Right ! Time for a handgreande , have septic announced the crowd figures for the Dundee hibs game ? If not why not ? Mick are you there ?

  12. Brian J

    Personally I am four square behind Lord Carloway when he suggests in his report on Criminal Justice Reforms that we ought to adopt the Doctrine Of Similar Fact Evidence. Had it not been applied, in England and Ireland, in cases there against Robert Black one of the most vile serial killers and abusers of children ever brought before the Scottish courts then he would most probably be released on life licence by now and be an ongoing threat to Scottish children.
    If an indivisdual has a propensity for a particular type of crime or modus operandi and the circumstances of an instant charge are so similar, that for my money is something of value to a jury. It is absolutely not a matter which speaks to the facts of the instant charge and should never on its own be sufficient to prove a charge. It is however still a fact, that the accused has a history of behaving in the particular manner described and that fact is relevant to the jury’s overall consideration of the case.

    • ecojon

      @Brian J

      I have observed the application of the Murov Doctrine in a few trials and was therefore interested in the Doctrine Of Similar Fact Evidence which I haven’t come across before.

      Obviously Murov does, to a non lawyer like myself, appear to assist the possibility of a conviction which otherwise couldn’t be corroborated.

      So I wonder if the legal stumbling block to Similar Fact Evidence is the lack of corroboration it provides in an absolute sense. And is revealing Similar Fact Evidence in real terms better or worse for an accused than just listings PCs (prior to conviction) as I could see it working both ways.

      Is there any chance of Similar Fact Evidence ever being allowed btw?

      • Brian J

        The irony of the Moorov Doctrine is that it cannot be used if the accused has been convicted of the offences involved. That is to say, Moorov involves the libelling of charges against an individual where each constituent charge has no specific corroboration on its own but where the nature of what is alleged in each charge is so similar in circumstance and time as to provide corroboration for the other charges. So for example Mr A is charged with sex offences against his daughters B C and D each of which was allegedly conducted in private (there being no corroboration). If however what each of the children alledges is so similar in nature eg the specific manner of abuse or location etc then each allegation can serve as corroboration of the other. If however Mr A had already been convicted of abusing daughters B and C then the Moorov doctrine could not be employed because to do so would necessrily disclose previous convictions. This brings about the farcical situation whereby the simple allegations, not yet proven, by his daughters can be used against Mr A but if he has actually been convicted and the facts against him are already proven then they cannot be used against him. The Doctrine of Similar Evidence Facts would cure that anomoly.

    • Hi Brian, whereas Paul’s main point focuses upon the need to exercise a clear and pertinent line of questioning when operating within a court setting; it may, given your expansion on the subject, be of interest you to know that the application of the rules of evidence in Scotland, in so far as they relate to the disclosure of an accused persons previous convictions, are by no means absolute and totally straight forward. Indeed, in certain circumstances, evidence of previous convictions may be brought to the attention of the court and jury, e.g. when an accused person directly or through his legal representative attempts to mislead or suggest to the court that he/she is of good or unblemished character when in fact he/she has a history.[of previous conviction(s)] In fact The Prevention of Crimes Act, 1871, makes it absolutely essential in order for the prosecution to successfully try a case under this statute, to provide evidence of a previous conviction, which has to have been on Indictment against the accused within the previous seven years. Moreover, proof of that conviction has to be presented in the form of a Production (usually an extract signed by the Clerk of the Court where the relevant previous conviction was recorded.) So it would seem then that our cherished Scots Law, through its progressive legislators, over the years, has sought to maintain a balance, recognising that there are some occasions when the greater good is best served by not adhering to the general rule.

      • Steven brennan

        Dear sherrif
        If a lady of the night with umpteen convictions for prostitution was in your court as the defendant in a rape case and the prosecution tell all and sundry about her past. Her accused is likely to be found innocent.
        It appears a little double standard.
        “Likewise when a girl is wearing a short skirt she is asking for it” peoples lifesyles are used in court all the time and jury’s will form thier opinions rightly or wrongly.

        • Brian J

          My understanding of the rules is that if the accused, or his lawyer, attacks the character of a prosecution witness then his own character becomes fair game

      • Clarkeng

        @Sherriffhook
        Excellent. Thank you fro this clarification.
        One question would the previous convictions need to be of a similar nature or would any convictions be relevant.

      • Brian J

        Yes, I am aware of what you say. There are also some charges where it is obvious that an accused has previous convictions by the very nature of the charge. Disqualified driving for example or Section 58 of the Civic Govt Act (known thief going equipped). I am also aware of complaints and indictments having to be served separately where an accused is facing a charge of careless driving and one of disqualified driving to avoid disclosing the previous conviction, all with added expense to the system and inconvenience to witnesses that could be avoided with proper direction from the judge, who remember can in law dismiss any charge if there is insufficient evidence in law to prove it.

  13. the great american civil rights leader DR MARTIN LUTHER KING once said, INJUSTICE ANYWHERE IS A THREAT TO JUSTICE EVERYWHERE,& THERE COMES A TIME WHEN MAN CAN NO LONGER REMAIN UNDER THE IRON FEET OF OPPRESSION, NUFF SAID

  14. You have to laugh , people debating about justice when the biggest and best supported football club in this bigoted wee country is found guilty before the trial ! Now for your next joke ?

  15. Stevie b , is that not 20k empty seats ?

    • Steven brennan

      Yes indeed 20000 empty, less than the 50000 empty ay ibrox.
      In case you mised last nights post by some genius( vant remeber who )
      Ibrox means badgers field
      The bad gers simple, but so am I.
      Justice will be seen to be done, and if LNS finds in sevco favour I will still think they are a new club

  16. cam

    Well as the blog seems to be struggling to catch the imagination,here’s my tuppence worth.
    Just plough through the mind blowing, turgid legalese spouted by both prosecution and defence,read and absorb the very learned and impressive points of law.Calculate how much cash is being earned by the lawyers who can’t say “yes” for less than £30.
    The accused plead guilty,he was guilty and he may have previous,for similar offences,but a lawyer can get him off on technicalities by some smart manouvering.
    Justice and the practise of law in this country are travelling two diverging paths aided by a legal aid system,the Human rights Act and a complete lack of common sense.

    • Pensionerbhoy

      cam

      I am at a loss. I find myself in harmony with your higher moral stance. Should I be afraid?

      You are right on the button, though, with the money side, that is certain.

    • JohnBhoy

      @Cam

      The Human Rights Act 1998 is fundamental to our basic freedoms. Governments may change but these rights remain. The Act protects our right to a fair trial and no punishment without law, the right not to be tortured, the right to privacy, the right to life, liberty and freedom, the right of free speech and peaceful protest, the right to equal treatment, the right to an education, the right to free elections, protection from slavery, the right to free and fair elections. MIND – the society that supports those with mental health problems – belief that the Act is a “vital tool to safeguard these basic rights, particularly in relation to preventing abuse, guaranteeing equal access to justice, and ensuring healthcare is appropriate and proportionate” for people suffering mental distress. The Act should be celebrated, not condemned. Unfortunately there is a tendency in the media to perpetuate myths by highlighting isolated and extreme atypical uses of the Act and representing them as typical.

      The right to a fair trial is embedded Article 6 of the Human Rights Act and legal aid ensures that access to justice is open to all. Without legal aid, this freedom would be determined by income levels and deny many poor citizens in our society a basic human right. Already, the government intends to remove the right to legal aid for cases involving immigrants, domestic violence claims, initial welfare benefit cases, most educational issues, some employment claims, and many homeless cases i.e. issues involving the vulnerable in society.

      Removal of the Human Rights Act – if it was possible – and any dismantling of our legal aid system would irretrievably divide society further, undermine our claim to a free and democratic society and shame this nation.

      • cam

        I should have stated the abuse of the act JB.Unfortunately many unscrupulous lawyers have stuck their snouts into the legal aid system also.

      • Steven brennan

        Johnbhoy
        I read your posts on a semi regular basis, I am led to believe from them that you are a tradesman of sorts and may even work on the same sites as me.
        You must be popular in the bothy, I dont have half your wherewithall and they hate me.
        The lady with tea urn tells me to take mine “oot tae yir van ya mixin git”
        “Shoulda went to further education”
        Hohoho

        • JohnBhoy

          Hi Steven

          A journeyman’s life counterbalancing middle class intelligentsia was my cross… Bothies, of course, offer temporary safe harbour from inclement weather but the reality can be a sharp reminder to the senses of the importance of central heating. Spent a cold and wet night in one during an over-ambitious trek on the West Highland Way but I could see the stars and I could hear an owl in the distance! The other guests seeking refuge were midges and they were only too happy to have me as company.

          P.S. “MIND…belief that the Act” should have read “”MIND… believe that the Act”. So much for educatshun.

      • Clarkeng

        @Johnbhoy
        Strong words indeed and I applaud your conviction.
        Sorry I will rephrase – your belief (in case you reveal any previous which might let you walk on the one charge I am about to level against you).
        Before we became incorporated into the HRA in 1998 we had the same freedoms and rights we have now.
        From memory we were accorded these rights about the time of the Treaty of Rome which was partially drafted by the UK.
        The HRA does not protect the general public against the willful act or acts of an individual but by its nature protects the individual against the same by society or the legal system as a whole.
        The provision of legal aid and such rights to facilitate defence have long been in place in this country and you are correct to point out that removal of this will probably harm the most vulnerable in society.
        However we in this country have also allowed the application of the wording of the HRA to be twisted to subvert the rights of the public at large in favour the rights of individuals who plainly are here only to benefit financially and create civil unrest.
        The HRA as it stands needs to be re-dafted to remove the anomolies which allow terrorists et al to benefit and profit from our generosity as a society and really as it is paid for by the British Taxpayer needs to better represent their collective interests.
        The charge arises from your last statement and is this :-
        “Failing to appreciate that the HRA should represent society and the rights of the individual ( neither exclusively ) and that removal or replacement of the HRA is and remains the prerogative of the British people in that they by choice should be the sole arbiters of whether it remains in force in it’s current form.”
        My case is that for the last twenty years we have allowed politicians to promote laws which clearly have been against public opinion and have not been the subject of manifesto commitment.
        As is now clear the vested interests of political parties do not always coincide with the wishes of the electorate and they are not worthy of our trust in a matter of this importance.
        Given our experience of the HRA in action surely that also indicates it is time to re-assess how it ensures the aim of justice for all and protects the rights we treasure.
        That would not undermine our claim to be a free and democratic society or bring any shame on the nation.
        Rather it would reinforce the stated purpose of the Act and improve the benefits to us all.

        • JohnBhoy

          @Clarkeng

          Thanks for your response Clerkeng.

          It depends who does the cherry picking and for what purpose. The rights that we as citizens have today are not the result of benevolent governments; instead they have been hard won by trade unionists over recent centuries against vehement opposition from vested interest groups. On occasions that there is a “review” of our rights, they are, more often than not, reduced.

          It is incorrect to claim that prior to the Human Rights Act we had the “same rights and freedoms as we have now”. The 1950 European Convention on Human Rights, although mainly drafted by the UK, was not enforceable in our courts. A right is not a right if is unenforceable. The passing of the Act was momentous: it compelled our courts and all public authorities to respect those rights that you may have thought were inalienable and indivisible. As Lord Woolfe said: “It would restore our country to its former place as an international standard-bearer of liberty and justice.” If the Act had no import then the Tories’ criticisms, and yours for that matter, would be irrelevant.

          Your main concern appears to relate to the HRA being used to protect “individuals who plainly are here only to benefit financially and create civil unrest.” If there is a terrorist in our midst then the police should do their job, gather the evidence, secure an arrest and let the justice system prevail. The Act does not allow for detention without trial and does not allocate that right according to nationality. To do so would undermine an important facet of our justice system: the right to a fair trial. Otherwise, we would have many innocent non-UK residents serving detention without trial. There are also many examples of UK citizens engaged in “civil unrest”. Should we detain them without trial? Advancements in our rights have often been achieved through civil unrest. It is civil unrest that brought the Arab Spring.

          “Given our experience of the HRA in action”. Whose experience? Liberty, MIND, The Scottish Human Rights Commission, The Centre on Human Rights for People with Disabilities, and even The Society of Conservative Lawyers (!) agree on the importance of the Act in protecting our human rights. Decoupling or diminishing the Act would damn the most vulnerable in society to lesser freedoms and that in turn would represent a less democratic, less free society. To remove rights because a terrorist used the Act in his defense is not a valid argument. Home grown murderers get off scot free every year – should we remove the right to trial for those accused of murder?

          I abhor the idea that a terrorist might be exploiting the HRA to escape justice but to submit to selective equity would erode the very principle of inalienable and indivisible rights. And that is too high a price to pay.

          • Clarkeng

            @John Bhoy

            You make good points however I think you are mistaken in at least one of the responses.
            I have not advocated detention without trial.
            My assertion that the HRA needs to be withdarwn or modified to be better fit for purpose does not infer that.
            As you say it is for the police or whoever to do their job properly and let the justice system prevail however I would comment that the success of this can be subverted and has been by the accused claiming his human rights have been breached for whatever reason.
            I did not refer to civil unrest either and consider that as you say some of the momentous changes which have taken place in our society have come about because of that very act.
            However civil unrest need not be criminal hence not requiring any action under the law.
            You are correct to say murderers get off scot free every year and I note your opinion that selective eniquity is too high a price to pay.
            if you were to ask many who had been on the receiving end of a terrorist act I doubt they would share that opinion.
            There will be some who will.
            Of that there is no doubt.
            However I say again the current act falls down in certain areas and allows the terrorist/criminal ( call him what you will ) to subvert the course of natural justice.
            In my opinion it is the will of the majority of the people of this country that the act is brought into line with the standards this society expects.
            It is surely not beyond the powers or the legal talent of this country to be able to achieve this by ammending or replacing the existing act with something which more befits our wishes.

            • Clarkeng

              @John Bhoy

              BTW typing too quickly missed out after civil unrest ” by trade unionists or other bodies which represent each are of our society”.
              Apologies as it makes a difference to waht I have said.

  17. JohnBhoy

    JUDGE AND JURY

    There are powerful arguments for retaining the jury system. First, and foremost, a free and democratic society necessitates contribution from lay members who form that community. To do otherwise would distance justice from society and signal a move towards an autocratic state. Secondly, juries reflect the ‘conscience of the community’. A jury comes from all walks of life and better represents society than the elitist narrow experience of a judge. Thirdly, judges are part of the establishment and paid by the state: with the sole power to act as judge and jury they may be more inclined, or come under greater pressure, to reflect the demands of tyrannical governments. Lastly, judges are not immune from bias; nor are juries but with a jury there is a statistical greater chance that these prejudices may even themselves out.

    Besides, it is a short hop from arguing for a sole legal arbitrator to then advocating the use of an ‘expert’ knowledge software system. I’d rather have my case decided by 15 good men and women than by one person, however learned.

  18. Pensionerbhoy

    Paul

    May I begin by mangling a beautiful wedding ditty to describe your blog.

    Nothing old,
    Something new,
    Something borrowed,
    Nothing blue,
    Something no a fitba issue.

    This, your latest offering, is like the oxygen fix I used to receive when they were trying to make my stony heart flesh and blood again. It conjured up loving images of the old advert “Ah! Bisto! And so I devoured every word like any good meaty meal should be – and then licked the plate.

    May I say at the outset that I have no wish to resurrect the heated debate on prisons and prisoners which flared somewhat a few weeks ago. So, to those who read my comment, please do not give me indigestion after such a delicious meal – succulent some may describe it :).

    “That of course means that some guilty men (and it is usually men) are acquitted. I am firmly in the camp that it is better for a guilty person to be acquitted than for an innocent one to be convicted.”

    I have to agree with Paul and I believe we owe it to the innocent to be safe from false imprisonment even at the cost of the guilty being sometimes set free. It is simply one of those lesser of two evils for a higher moral purpose. I have met innocent people in prison and it is usually soul destroying for them and their families. For that matter, it is rarely the best outcome for victims either.

    On the other hand I did meet offenders who cried foul because they were inside for something they had not done while admitting there were several offences they had gotten away with. One could not help but have a wry chuckle at their sense of injustice. However, in many cases they were probably right and I do agree with Paul’s contention that it is very possible they WERE innocent of the particular offence for which they were in prison. May I also add in their defence that they willingly accepted they should be inside for their other criminal behaviour. It was simply their naive theoretical interpretation of justice v injustice.

    I had not meant to write quite as much as I have on issues that are so far above my intellect I could not reach them on the ladder to heaven , if I should ever be allowed on it. However, it is such a fresh topic for discussion that I could not stop myself from putting in my penny’s worth. My apologies to those who see it as merely hot air from my overused oxygen mask. I hope it is on the fresh side at least.

    • cam

      PB,fear not, for it is i,Cam who steadies your ladder.My vindaloo of a few weeks back is now just a korma in a teacup.
      The blog was corned beef hash to my uncultured, right wing, Judge Dredd psychosis, but you shall have no need of a Rennie for i’m off to spend a penny.

      • Pensionerbhoy

        Good evening Cam. I can rest easy now but with that one eye still open – just in case.

        • cam

          Don’t worry about that strange noise,i’m just trying out my new saw i got for Christmas.Im afraid the rungs on your ladder are a bit dodgy now and you will have to travel in an upwards direction!But go slowly for i like the sound of voice.

          • Pensionerbhoy

            Cam

            Don’t you kid me. You will be there to catch me, I know. By the way , this is a serious legal matter and you are sawing rungs. Is that a fly wee solicitors trap?

            • Pensionerbhoy

              Cam

              I am off to bed before the hot water bottle bursts. I think the temperature is building rapidly in some parts. If the ladder holds I may be back in the morning.

            • cam

              When you find yourself on the bottom rung through your own lack of ambition and propensity for stupidity, then footering with the rungs above you does tend to have a sad twisted sort of appeal.
              Not being young or upwardly mobile me and Mr De Walt are gonna have some big fun!
              Timber!!!

            • Steven brennan

              PB
              Give me a call, Paul should have passed my details, lunch on me

  19. RayCharles

    The Ponting case in the 1980s is one of the reasons I will always back the jury system.

    If you remember Clive Ponting leaked information showing the General Belgrano had been sighted a day earlier than officially reported and was steaming away from the Royal Navy taskforce when it was attacked.

    Ponting claimed leaking documents was in the public interest. He was acquitted by the jury despite the judge’s direction that “the public interest is what the government of the day says it is”.

    The judge, left to his own devices, would have convicted Ponting but the jury did not. What persuaded the jury to acquit, I believe, is that Ponting gave the documents to Tam Dalyell. The fact the MP could then try to uphold the right of Parliament not to be lied to by the government of the day was perceived by the jury to be in the public interest.

    As others have said, Judges are too closely tied to the State to be left as the sole arbiters of justice.

  20. JimBhoy

    How about this thought lets jail the guilty and not those innocent…? Find a suitable 21st century way to do that follow it through and guys like that taxi driver rapist/killer is sentenced for two at least and not one because of a legal blunder. if that system lets people off because of a loophole, an admin prob then surely our judges should step in with some advice…

    Dont fuk the legal/court system up with the smallest motoring offences..! I have been a victim of that, poor policing…

    Getting off with a technicality is like gross tax avoidance, it is wrong and illegal but cannot be proven so… I do not mean the rangers I mean a lot of senior Uk figures who do not wish the system to change.. Turkeys voting for xmas..

    Like the commies concluded years ago the whole set up is corrupt for the 95% to look after the 5%. i like business initiative and there are incentives but the incentive is not avoiding whats due, tax breaks to help but exploitation of the rules bad..

    Cameron will never make them pay because he is one of them…

    Just my usual contentious nonsense..

  21. arb urns

    Jury for the UTTT any one- sorry- goodnight- cam u can b henry fonda if u want.

  22. JimBhoy

    @Cam responses tickle me as always, for a rangers man i think he adds depth to the conversations for the more rational or disconcerting supporter 😉 kidding dude… That dyke is always there fella i actually put a wee step ladder both sides to help ya… Baaaa!

    Anybody think the fukin internet era ( xbox ps, psvita, ds, pc, laptop, phone) is gonna really have a bad situ on Scottish football talent?

    When i was a boy we had asteroids and pacman but my fresh air release was banging a ball about if my pals weren’t around, often against a school wall.. corners or practising wi my standing foot

    Ton of teams around these days better leagues may actually spoil things, boys way too many options and can easily move…

    Dedication from coach, boy and family is soooooo key.. Past few weeks i have got to the car and can hardly curl my fingers around the wheel, so fekin cold….

    It takes a lot…

  23. cam

    Off topic ,but Commander Leggo,the blogger with the fastest finger in the west,has clearly debunked Pauls and others theories regards the LNS Commission.
    The guy, in the time it takes to cook two square sausages, has presented a fait accompli,a total masterclass in incisive journalism and i see no further need for the Tic fans moonlighting as lawyers,presenting their, “green round the gills”, “evidence”,,,case closed!

  24. cam

    Here we go;
    http://davidleggat-leggoland.blogspot.co.uk/2013/01/

    now for the really important sport,,,,c’mon Andy Murray!!!!

    • arb urns

      oh dear cam this doesnt look good. The plastic brick says the payments were non contractual thats against the spl rule if you want to look it up and the loan bit is shaky too as the rule includes all things financial. in theory it should impossible for u to get to two and zero in the ‘pyrhiccs’ but such is the bending over for your disgraced self appointed royal X1 so far that one more touch your toes all ye non blues should be just about achievable.suggest u tip the old buffer off before ” the controversial LNS” gets his specs on and checks the blogs

      and finally…… i wont b in the wee rangers club on saturday before the montrose game……

      ps how do u nod off at night knowing her maj is so much out of pocket from your wonga type payroll. 10 years of it too. these belisha daiquirris must b good stuff.

  25. Old Cartha Bhoy

    As others have offered the view, the issue can be best addressed by previous convictons being shared with the jury. How many times have lawyers from Morningside and Newton Mearns painted their client as paragons of virtue, only for the public to later discover their client had dozens if not hundreds of previous convictions? I am sure there is a book of fiction to be written about a vigilante who turns upon a defence solicitor and his family who gets his bad ass client off, only to suffer similar consequences upon himself and his family..Charles Bronson (RIP) would have played the part well in the film!

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