Kangaroos in Scotland

Just as the improbable kangaroo appears to defy the laws of nature, so Summary Courts defy the laws of natural justice. In the topsy-turvy world of Scottish justice, Kangaroo Court is an appropriate description of their proceedings.

To convict a person of a crime or statutory offence requires two independent items of evidence - two independent witnesses in other words. One might have thought that such a requirement would have carried with it an obligation to check the independence of witnesses. Only the Police have the authority to carry out such checks - by interviewing neighbours and colleagues perhaps, or by looking at phone records. But, as part of the prosecution, the Police are hardly likely to bother with that.
In my case, the need for such a check ought to have been obvious - only one witness came forward to complain; and he alone supplied the details of the other witness to the Police.

When the police arrest someone you are told that if you do not mention something that you later rely upon in court, this may harm your case. In other words, what you say or do not say can be taken down and used as evidence against you. The same principle does not apply to prosecution witnesses. They can say what they like, make statements and even sign them. So, if a witness says or writes something but retracts it in court, you might expect the defence to be able to make something of it. Not a bit of it! Nothing of what they say or write beforehand is admissible in court. What matters is their oral 'evidence' alone; no physical or circumstantial evidence need be provided.

Now, it would seem to be a reasonable principle of justice that the defence should know something of the evidence against an accused person, so that it can prepare an adequate defence. In court, advocates are ill-advised to ask questions of any witness, unless they already know the answers. Doing otherwise can lead to some nasty surprises, as my own solicitor discovered, to my cost.
In my case, two of the witnesses failed to provide any statement other than the one made to the police. This was too brief and too inaccurate (it got the location of the one of the 'incidents' wrong) to be of any use to the defence. Although a more detailed precognition statement was later provided by Rob Roy, she did not mention a crucial piece of evidence - a van, a white one, which was supposedly blocking the carriageway - until the actual trial. How was the defence to know that such vital evidence was to be presented? How could it attempt to find the driver of a van it did not know about?

The principle of allowing the defence access to the evidence held by the prosecution is known as 'disclosure'. However, unlike in England, it is not a statutory requirement. If disclosure is allowed, it is done as a favour - one member of the legal brotherhood helping out another. Scottish criminal law is a much more closed and secretive process than elsewhere. It did intend, stubbornly, to remain so, but a recent ruling by the Privy Council in London has scotched all that.

In a judgement issued in May 2005, it said that the Crown had failed to disclose a police statement that was inconsistent with evidence the witness gave in court. In future, unless there are national security implications, all statements will have to be made available to the defence as a matter of course.

Identification evidence in Summary Trials is usually without controversy. Those cases where the identity of the accused is in doubt are often sent to a higher court and an identification parade may be held. In my case, there was such a wide disparity in the stories narrated by the two sides that accurate identification assumed greater significance than usual. The witnesses were asked if they could see me in the courtroom. Even when presented with the giveaway clue that it was the bloke standing in the dock with two coppers in attendance, one witness couldn't identify me. The point is that pointing out someone in the dock and confirming that he is the accused is stating the obvious rather than proving anything. But all is not lost: the cross-examination is designed to safeguard against this sort of nonsense. The defence solicitor can cut through all the obfuscation and dissimulation with such devastating questions as, "Are you sure the man in the dock is the accused?"

The Privy Council, in the judgement of May 2005, recognised that a dock identification lacked the safeguards of an identification parade and said the risk of wrongful identification was increased by virtue of the accused being in the dock. This was particularly so when the witness had not picked out the accused at an identification parade. The impact of the Privy Council's views is that dock identifications should be rare.

Their judgements were made under Article 6 of the Human Rights Act - the right to a fair trial. But there is no right to appeal enshrined in the Act. This is unfortunate because the Scottish judiciary actively discourages appeals. Unlike in England, you cannot appeal on the evidence and force a retrial. It would be impossible anyway, because there are no written records kept of the proceedings. I wonder how many arms of government there are in the world that keep no records whatsoever. In a Scottish appeal, you can only challenge the Sheriff's application of the law; and because there are no official records it would come down to your solicitor's word against the Sheriff's recollection. And whom do you think the Appeal Court would believe? If you do manage to lodge your application in time (7 days is all you get) it has to jump through a 3 stage system of hoops known as the Sift before it even gets to Court. And, if it does get through, there is always the tasty threat of an increased sentence to consider.