1 May 2010

Tales from Parliament House Vol. 3

Phallic totems have been erected. The Morris dancers are out in force. A cool, verdant springliness hangs in the air. It is May Day! But if the flailing neopagan antics of beefy kerchief-waving English blacksmiths isn't to your taste, old grouch that you are, you might be interested in this third volume of an irregular series - highlighting interesting or unusual stories emanating from the Court of Session and the High Court of Justiciary. Obviously, the biggest judicial headline in Scotland this week was Lady Smith's opinion in the Petition of Scottish Nationalist Party & Ors for Judicial Review [2010] CSOH 56. It seems superfluous to note now that the SNP didn't persuade her to grant an interim interdict, and in her Ladyship's words -

"Delay is particularly significant in this case because whether one compares the debates to three rounds of a boxing competition, a three course meal, a play in three acts or any similar convenient analogy, the planned event that is the series leadership election debates is now two thirds of the way through and has, thus far, taken place according to plan. The order that the petitioners seek would, whatever happens, result in wholesale disruption of that plan. It would deprive the public, possibly the whole of the UK public, who are anticipating being able to complete their viewing and consideration of the whole series of debates tomorrow, of the opportunity to do so. It would, on the face of matters, leave them with an incomplete picture. That would hardly accord with proper, well ordered administration."

A tiger's previous bad acts...

The Court's work however, is never done. Always in some corner of the land, a sheriff misdirects herself about the law, in the quaint legal phrase, an expert witness tells a fib about the exact dimensions of his expertise, juries reach perverse conclusions, human suffering transforms itself into litigation, golf clubs cut procedural corners to expel a particular unloved fellow putter. Just a couple of examples that caught my eye recently. Firstly, the successful appeal against conviction in the case of Sher Khan v. Her Majesty's Advocate. Anyone familiar with the work of the Court of Criminal Appeal can see in their cases the charges of so many forlorn hopes. Arguable legal points are raised perhaps - a few identifiable procedural muddles in the appellant's trial, for example, which hardly make it a compelling example of a model process to be commended. This workmanlike judicial body, however, doesn't indulge in the sort of formalism the optimistic convict might hope, having identified an issue with his case, hanging his hopes on a comma. He may well find that the initial raptures he feels hearing the Court concede the goodness of his central legal argument  - he just knew that trial was iffy - Oh frabjous day! Calloo, calley!  - are replaced with settling gloom as the Court goes on to inform him that his argument still isn't sufficiently weighty to dispose of his conviction. Back to prison with you, my lad.

Sher Khan got a bit luckier than many of his fellows. If your childhood memory is peopled by characters from Rudyard Kipling's The Jungle Book, you may wonder why it took so long for this particular man-hungry tiger to be dragged before the law to account for his crimes against the innocent. This particular Sher Khan isn't a fictional tiger, but a man who was convicted of crimes of violence in the High Court in 2008. Luckily for him, the Advocate Depute rather screwed up. You will be familiar with the broad idea that your prior convictions should not be introduced in evidence against you in Court, despite recent political agitation to attenuate this principle. There is an exception, however, under the Criminal Procedure (Scotland) Act 1995, (s 266) if the accused gives himself out as being of good character. In those circumstances, the prosecutor can apply to the Court to introduce evidence of the accused's prior convictions. Khan's case turned on the nice point, whether a particular statement Khan made under cross-examination amounting to giving himself out as a good character, justifying what followed when the prosecution were given leave to introduce his previous summary convictions, bearing against his credibility. From the transcript, the prosecutor seems to have  clearly been itching to induce him to make some sort of admission of just this sort.

Said the Court of Criminal Appeal:

"We have to say that we are surprised that, at that stage, the trial judge did not consider it appropriate to invite the jury to withdraw, in order to furnish an opportunity for a discussion as to the direction in which the cross-examination was proceeding. Equally, it is surprising that, if the Advocate depute intended to proceed to question the appellant concerning his previous convections, presumably upon the basis of his view that the appellant had given evidence of his own good character, he did not then make an application for permission to follow that course in terms of section 266 (5)."

In the mannered politesse of Parliament House, those repeated invocation of surprise are doing a lot of understated spanking. That said, it seems to me desirable for the Court to insist on a narrow definition of good character. Anything less, and introducing past conviction evidence readily becomes the rule, not the exception

Daggers out in the Wee Wee Frees

Finally, the Court of Session is currently playing host to a religious schism in the Free Presbyterian Church of Scotland. Not to be confused with the Free Church of Scotland (the "Wee Frees"), the amazingly confusing factual background of the case pays testament to fruitcakey horrors of Scotch Protestantism.  These are sometimes called the Wee Wee Frees - and the distinct impression emerges of the pettiest of petty conflicts at work here and caballing personalities warring under Christ's hem. Lord Glennie sums it up thus, I think with a slight tinge of irony spicing his straightforward assessment...

"Underlying the complaints there is a suggestion, not put in so many words but inescapably there, that he has been the victim of a personally motivated campaign against him by two individuals, the Reverend Somerset and the Reverend John MacLeod, who have acted at various times as prosecutor, judge and jury; and that he has at various stages, in particular at the hearings of March and May 2009, been denied a proper opportunity of putting his case. At this stage no evidence has been led and the court cannot form a view as to whether the complaints made in the petition will be made out. All that can be said at this stage is that the allegations of irregularity and unfairness are of a kind which, if proved, are unlikely to be capable of being dismissed as technical or trivial but may well be assessed as having given rise to a real risk of substantial injustice. They concern the petitioner's livelihood and his calling."

Best I can discern, the "Reverend" Allan John MacDonald has taken the Church to the Court of Session, seeking judicial review of the latter's:

"resolution of the Synod passed on 21 May 2008 finding him guilty of contumacy; and, in consequence, inter alia suspending him sine die from the exercise of his ministerial functions and from the sealing ordinances of the Church, loosing the pastoral tie between him and his congregation from that date, requiring him to vacate the church manse, stopping his salary from 30 November 2008, and bringing to an end as from that date his membership of the Free Presbyterian Ministers Pension Scheme."

There is something joyously absurd about this. My favourite part is the inclusion of the materiality of his pension scheme, after all the gusty pieties preceding it. "Resort to civil magistrate" clearly isn't on either, furnishing the the Church with another basis to boot MacDonald out. This too he is challenging before the Court of Session. Looking in, attempting to follow the fuddlemuddle of procedures which the litigating "Reverend" was subjected to really bamboozles. My sympathies are with whichever Lord or Lady of Council and Session finds this monstrosity on their desk. Godly acrimony, and the case, continues...

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