Scottish Law

[Casehardened]

Rights Fighter has found two useful links pertaining to Scots Law and I have stickied the thread to keep this information and any other similar contributions in view:

http://ukhumanrightsblog.com/2015/06...-to-scots-law/

http://ukhumanrightsblog.com/2015/06...cation-regime/

[Rights Fighter]

I've made subforums on PAFAA too with regards to Scots law. We seem to be getting more members from North of the Border and I thought it was time that we had something for folk who have fallen foul of Scots law.

And of course I can learn from it - when I get some spare time!

Thanks for doing this. I am sure it will benefit new members as well as "older" ones.

[Turtle]

I'm posting a link from the Scottish Government website relating to the appeals process which will hopefully clear up all the confusion regarding it:

http://www.gov.scot/About/Review/Car...ealsProcedures

[Rights Fighter]

Appeal succeeds on judge's directions - Moorov Doctrine

https://innocentorguk.wordpress.com/...ction-of-jury/

[Rights Fighter]

Crown loses appeal against disclosure order

Crown loses appeal against disclosure order after appeal judges rule access to productions is for court to determine

Prosecutors have failed in an appeal against a judge’s decision to order the disclosure of recordings of interviews of two complainers in a sex abuse case after appeal judges ruled that such label productions are subject to the control of the court, not the Crown.

The Criminal Appeal Court held it is for the trial court as “master of its procedure” to determine whether to grant an application by the defence to remove them for the purposes of copying or inspection by an expert.

The Lord Justice Clerk, Lord Carloway (pictured), sitting with Lady Smith and Lady Clark of Calton, heard the Crown appeal against a judge’s decision ordering disclosure to the defence agents by delivering copies of disc recordings of police and social work joint investigative interviews of two young boys.

The respondents “AM” and “JM”, aged 16 and 15, faced two charges of sexual abuse involving the two younger boys, contrary to sections 18, 20 and 21 of the Sexual Offences (Scotland) Act 2009.

Special measures had been granted in relation to both complainers, including the taking of their evidence on commission and the giving of evidence in chief in the form of prior statements.

The discs and the transcriptions, which were in the custody of the Crown, were listed as productions in the lists attached to the indictment.

The respondents wished to have the discs’ content viewed by a forensic psychologist, but the Crown refused to provide copies of the discs to the defence, electing instead to allow “disclosure by access” by enabling the accused to inspect the discs “at a reasonable time and in a reasonable place”.

However, both respondents lodged preliminary and compatibility issue minutes relating to the discs and the PH judge ordered the Crown to provide copies of the discs to the respondents’ agents, subject to certain conditions, after ruling that the Crown had adopted an “illegitimate blanket policy”, whereby discs containing visual recordings of JIIs of children being interviewed would never be given to the defence.

In the circumstances the judge concluded that the Crown’s policy, which left “no element of discretion”, offended the respondent’s right to a fair trial under Article 6 of the European Convention on Human Rights.

On appeal, the principal contention for the Crown was that the judge had erred in holding that the respondents’ article 6 rights were breached by the decision to disclose the content of the JIIs by access, rather than providing copies.

In terms of section 164 of the Criminal Justice and Licensing (Scotland) Act 2010, the Lord Advocate had laid before the Scottish Parliament a Code of Practice, which established “a clear, consistent and readily understood means” which enabled parties to apply a practice meeting the “legitimate and proportionate aims of balancing the rights of an accused person and those of the witnesses”.

It was argued that disclosure by access was a “justified and proportionate response” to the obligations placed upon the appellant and “did not unnecessarily impede preparation of the defence”.

In a decision dated September 2015 for which written reasons have now been published, Lord Carloway, said it was important to distinguish the disclosure regime, the object of which was “to ensure that the defence have knowledge of what evidence would form the case against the accused and what material there is available to refute it”, and the regime covering label productions.

Delivering the opinion of the court, the Lord Justice General said: “This case is concerned with recordings of the Joint Investigative Interviews. Whilst they may provide powerful information they are also label productions in the case.

“As such a different regime covers their inspection by the defence. No issue of disclosure per se arises in such circumstances. The defence have had formal notice, by way of the lists attached to the indictment, of both the discs and the transcriptions.

“Intimation of such lists has the effect of bringing the productions specified under the control of the court whether or not they have been lodged and it is for the court to determine, as master of its procedure, what may or may not happen to them.

“No issue of substantive law arises. At this stage in the case the accused is entitled to see the labels, not as a result of the disclosure regime but in terms of the statute relative to the lists of production.

“Whilst, in modern practice the Crown may retain them until the diet of trial…it does so subject to any order of the court. If an accused wishes to remove any production from the custody of the court or Crown for the purposes of copying or inspection by an expert, he is entitled to apply to the trial court to do so.

“There is no need to invoke the disclosure regime, Article 6 of the Convention or European Court jurisprudence. There is no need to lodge a preliminary or compatibility issue minute.

“All that is required in respect of items referred to in the lists attached to the indictment is a request to the trial court to borrow them for a specified purpose (including copying). The court will thereafter decide, as a matter for its discretion but no doubt having regard to the principles of fairness, including equality of arms, whether it is in the interests of justice to grant the application.”


He added:

“Given that the labels are to be used as evidence in chief, it is difficult to conceive of a situation in which the court would refuse such an application, albeit perhaps subject to conditions. The court has effectively granted that application. The appeals will simply be refused on that basis.”

[Franticwithworry]

I'm not sure where best to put this, so Casehardened, please move it if necessary.

We are dealing with both the Scottish and English systems, even though we live in England, and have found it next to impossible to find out how the Scots system works by looking online. We met with a solicitor in Edinburgh recently who explained the system wonderfully so I'm sharing information here in case anyone needs it:

My husband hasn't been questioned by the police in relation to the complaint - apparently that's not unusual. We were worried that he might be arrested but that won't happen now. Basically, a complaint was made a year ago, it's taken them this long to send him a court date and my husband has entered a plea of 'not guilty' without having to attend court. There were postal and 'solicitor will attend for you' options. He will be sent 2 dates, one for a preliminary hearing the other for a trial. This could take weeks running into months; nothing was settled on the day.

He should get disclosure of the statements within 28 days but it often takes longer than that. He got a written 'summary of evidence', which is something that the police write up, along with the initial summons, but not everyone gets that. The actual statements to the police are much more important.

The Scottish court system has 4 levels. The bottom level (1) concerns cases heard by a Justice of the Peace, a lay judge, and usually concerns traffic offences and minor stuff like that.

The next level up (2), which is where we are, concerns 'minor' criminal offences. The case is heard by a Sheriff, one person, no jury, and the maximum penalty is one year in jail, (of which 6 months would be served), a fine and being on the sexual offenders register for up to 7 years. That's the worst case scenario for this court. There are other options, like community service or probation.

The next level up (3), deals with more serious sexual assaults, and involves a jury, as does the highest level (4), which deals with the most serious crimes like rape and murder. The solicitor didn't go into detail of the penalties in the 2 higher courts, he spent his time stressing to my husband that there is no risk of him getting sent down for years and years.

Levels (1) and (2) are heard in the smaller town courts, roughly equivalent to the Magistrates Court and the higher courts are more equivalent to the Crown Court. (I think they are called The Court of Session and The High Court, but I can check if anyone needs to know.)

He also explained that, unlike the English courts, the prosecution cannot call a witness and then drop them so that they are unavailable to the defence. He also said that, in Scotland, anyone called as a prosecution witness unwillingly need not worry because it's the truth that matters and prosecution witnesses can turn out to be more useful to the defence, though there's nothing stopping someone being called by both sides. No one gets 'dropped' or 'lost' in the way they do in England, he said.

He also said that its been policy for a while for, no how minor, frivolous or 'whatever' a sexual complaint, for it to be sent to court for the Sheriff or a jury to decide. What a waste of time and resources!!

I hope that all helps someone. It's more than we knew 10 days ago anyway. The solicitor was very calming, informative and helpful. I got his details from the specialist solicitors thread here and I'll be adding my own recommendation too as things go on. Preparation and trial are still to come, but in terms of reassurance and information and instilling confidence he was terrific.