Note recording Lord Bracadale’s reasons for repelling Thomas and Gail Sheridan’s pleas in bar of trial at their trial for perjury.  The Sheridans had argued that the trial would breach their right to a fair trial in terms of Article 6 of the European Convention of Human Rights contending that the pre-trial publicity meant that the trial could not be before an impartial tribunal. In particular they argued that:

1. prejudicial material remained accessible at the time of the trial;
2. some of the material purported to emanate from police sources; and
3. the Crown had failed to take adequate steps to render the prejudicial material inaccessible.

Lord Bracadale applied the test[1] for prejudicial pre-trail publicity set out in Stuurman v HMA (1980) and had regard to observations made in Montgomery v HMA (2001) to the effect that the Stuurman test took account of:

a)     the length of time since publication;
b)    the focusing effect of listening to evidence over a prolonged period; and
c)     the likely effect of the directions by the trial judge.

Was there pre-trial publicity?
The first question was whether there had in fact been pre-trail publicity.  Having been presented with 13 lever arch files of material and a report of material available on the internet, Lord Bracadale unsurprisingly accepted that there had been pre-trial publicity.  Although it was highly improbable that any potential juror would have read all of it, and there was therefore a danger of overestimating the impact of the material on any particular juror, it was likely that some of the jurors would have encountered some of the prejudicial material.

Could the effect of the pre-trial publicity be removed?
The passage of time
Lord Bracadale noted that there had been significant time between publication of most of the prejudicial material (in 2006 following the defamation verdict) and the perjury trial due to take place in 2010. However, there had been publications in the intervening period which harked back to and rehearsed the earlier prejudicial material.  Additional allegations had also been made in the intervening period in relation to interfering with witnesses and evidence. Moreover, much of the material was still available on the internet. All of which meant Lord Bracadale found that the argument that the passage of time was a safeguard to a fair trial was a weak one.

Focusing effects of the hearing of the evidence
In contrast Lord Bracadale considered that the focusing effects of listening to the evidence over a pro-longed period was a powerful safeguard. It was not just a polite fiction:

“It is within the daily experience of judges and counsel that juries do become engrossed in the evidence and return verdicts which reflect the evidence. It seems to me that listening to the evidence and hearing it being tested in cross examination in the immediacy of the court environment will be likely to focus the minds of jurors on what they are hearing in court. That is more likely, in my view, to dispel notions that they may have picked up from reading prejudicial material, rather than to reinforce preconceived views. In addition, the jury will have regard to the evidence as a whole, which is a significant consideration.”

Directions of the trial judge
With regard to the directions of the trial judge, the court must assume that jurors will follow the directions given to them by the trial judge. This was a case in which special directions were necessary and would require to cover, for example, internet research and to putting knowledge of the case gleaned from the media from their minds.

Decision
Lord Bracadale had been satisfied that, when taken together, the safeguards removed the risk of prejudice and a fair trial had been available to the Sheridans.

The note repeats the directions Lord Bracadale gave to the jury in his introductory remarks, the reminders he gave during the trial and also the directions given in his charge to the jury.

The full text of the note is available from Scottish Courts here.

All we need is “ze fallen Madonna with ze big boobies” and it could be an episode of Allo, Allo. Instead, this is a case concerning an appeal by the Procurator Fiscal of Aberdeen against a sheriff’s decision on the grounds of bias.

The case involved Chief Inspector Thomas Forrester who was charged with dangerous driving[1] after allegedly instructing a constable driving a police car, in which he was travelling to catch a plane, to put the sirens on and move to the wrong side of the road. When the constable did so, a collision occurred between two cars travelling in the opposite direction.

During a delay in proceedings, the sheriff called the procurator fiscal’s depute and the defence counsel into chambers to inquire as to progress and was told by the procurator fiscal’s depute that, amongst other witnesses waiting to be called, were the police officers who interviewed Chief Inspector Forrester. The sheriff then remarked “Oh that will be the Gestapo!”

The sheriff ultimately found that the interview of Chief Inspector Forrester by the investigating officers was unfair and excluded it as evidence. The Procurator Fiscal appealed to the High Court on the basis that the sheriff’s remarks inferred bias and, his decision to exclude the interview as evidence, disclosed actual bias.

The High Court refused the Appeal.  In coming to its conclusion, the High Court referred to Wallace v Thomson (2009):

 “[18] Humour is not without its place in the criminal courts. No doubt, when used by a judge or sheriff, it requires to be used sparingly, with caution and not inappropriately. However, a Sheriff may consider that an element of levity might be temporarily introduced for a particular purpose; perhaps to put a nervous witness at his ease or to defuse a moment of unnecessary tension between procurators. No doubt, if the Court turned a trial into something akin to a comedy, an accused would have grounds of complaint were he to be convicted. Nothing of that kind has occurred in this case. The Sheriff appears to have made one flippant remark intended to be humorous. Perhaps it was; although it seems to have lost something in its translation to the printed page. The suggestion that an informed and reasonable observer would consider that this was an element demonstrating partiality is without foundation”.

Similar considerations, held the High Court, applied with regard to the sheriff’s comments in this case.  It was “bordering on the ludicrous” to suggest that the sheriff was actually comparing the behaviour of the police officers with that of the Gestapo during the Second World War. On hearing the words used in context, there was no prospect of a fair minded individual concluding that the sheriff was biased against the procurator fiscal and, having regard to the way the sheriff approached the objection to the admissibility of the interview and the reasoning he employed, there was also no prospect that a fair minded individual would form the view that the sheriff was biased when deciding the issue.

It was noted (the court’s opinion being delivered by Lord Carloway):

“An allegation that a judicial office holder is biased against the Crown, in the form of the local procurator fiscal, and investigating police officers is an extremely serious one. It should only be made where there is evidence to support it.  Such evidence is not present in this case..”

With regard to the interview, the issue was whether the sheriff had erred in determining that the Crown had failed to demonstrate that the interview had been fair and that admissions made had been spontaneous and voluntary. The sheriff had rejected evidence of the detective chief superintendent who conducted the interview to the effect that the interviews purpose had been to allow the chief inspector to tell his side of the story. Instead the sheriff concluded, from the manner of the interview and the surrounding circumstances[2], that the true intention had been to prompt the chief inspector into making an admission. On reaching that conclusion the sheriff was bound to sustain the objection to the interview as evidence. Authority for that finding came from Chalmers v HMA (1954) and the words of Lord Justice General (Cooper):

 “It is not the function of the police… to direct their endeavours to obtaining a confession from the suspect to be used as evidence against him at the trial”

 Herr Flick would not have approved.

A full report of the decision is available from Scottish Courts here.