Complicating culpable homicide

Were we better off without the Scotland Act? Have Devolution Issues prevented any miscarriages of justice?  These issues will have to be addressed somewhere soon, but not here, I am afraid. Let’s start with some road traffic law.The question of what is a public place came up again in McPhee v Maguire 2001 GWD 24-912, where the area in question, though not one into which the public was invited, was one where there was no physical restriction on access. The case of Young v Carmichael 1993 SLT 167 was distinguished. The rationale of imprisonment for drink driving offences came under scrutiny in the case of MacGillivray v Napier 2001 GWD 12-449 in which the appellant has been sentenced to two months’ detention for a second offence involving a high reading within two months. Two years probation with 240 hours of community service was substituted, it being considered that the appellant, who was in employment and had been affected by the short time spent in custody, would be better able to address his drink problem in the community. So it looks as though it may be still a case of three strikes before you are out, or rather , in.  A successful exceptional hardship case involving the totting up procedure is to be found in Mirfin v Dickson 2001 GWD 11-397, in which the resulting disqualification would have meant the loss of a job and this in turn, given that the appellant was 61, would effectively bring his working life to an end. It is difficult to distinguish principles in such cases: it may be that the word “exceptional” is the one causing difficulty, since it can scarcely be denied that a person who loses his job along with his licence manifestly suffers more than some one who just had to take the bus for a few months.310 As regards the practicalities of proof, McEwan v Higson 2001 GWD 25-982 is of interest. The charge was one of driving while unfit through drink or drugs. When examined medically an hour and a quarter after the incident the appellant was found to be not then impaired although it was accepted that he might have been so impaired an hour earlier. It was held on appeal however that the Crown was entitled to rely on the evidence of two traffic policemen as to the manner of the appellant’s driving and their observation of his condition at the time of first seeing him.

Plagium

Sometimes it happens that a single issue of GWD produces a particularly rich crop.   Take 2001-16 for example. 592, Kinnaird v Higson considers whether it’s a breach of the peace to say to police officers “f*** off” with no suggestion that it was anything other than a conversation involving impolite words. 593, Dyer v O’Neill deals with the question of the competency, given the Convention 's respect for family life enshrined in art 8, of charging an unmarried father with the crime of plagium or perhaps for safety’s sake in case the accused has not had a classical education and does not know with what he is charged, child-stealing. (See, with reference to the expression “omnia rite et solemnitur acta praesumuntur”, the case of Robbie the Pict v MacDonald 2001 GWD 20- 764 which involved the appellant’s assertion that his right to have proceedings conducted in a language which he understood). A more elaborate argument that the maxim interfered with the presumption of innocence was disposed of by it being pointed out that the tag involved nothing more than a rebuttable presumption. Proportionality saved the day for the Crown.   595, Dickson v HMA is a five-judge case about the time limits for raising devolution issues. It was also argued that the High Court was precluded from considering the question of a challenge to an Act of Adjounal, that being an act of the court itself.  This is one for the devolution specialist.  599, Cane v HMA is another delay case and is interesting as emphasising that where there are various periods of delay for which differing explanations can be given, one should not approach the matter in a piecemeal way but still address the question as to whether or not the overall delay is explicable.   603, Simpson v HMA is an odd and perhaps rather far-fetched attempt at raising a question mark over the impartiality of a jury in a case where a letter was found in the court which might have emanated from a juror. The presiding judge’s actions in enquiring as to whether any juror knew about it were deemed sufficient to deal with any suspicions in such a way as to preserve the integrity of the trial.  On the sentencing front, 612, Louden v McFadyen saw a custodial sentence confirmed for someone who assaulted a police officer by holding a dog in a position that it could bite him, in 624, Walker v HMA, a sentence of six years’ imprisonment was confirmed for being concerned in the supply of diamorphine even for someone dealing with a limited number of customers in order to support his own habit and in 615, Heafey v Craigen courts were urged to proceed with caution when it came to making compensation orders without the accused being present or represented, as questions of value and appropriateness might be contentious.713

Procedural matters

Turning now from the richness of one issue to a more thematic approach, pausing only to wonder that there still seem to be so many things still to decide, let us consider some procedural cases.  Hastiev HMA 2001 GWD 17-672 is somewhat unusual in its facts and turns to some extent on what is to be understood by someone being charged. Part 19 however involves three delay cases of perhaps more general application.  721, HMA v Wright involved a successful crown appeal, in which certain observations were made by the court about prioritisation.  First, it was explained that the important matter was not whether this should have taken place but whether the course actually adopted resulted in the trial not taking place within a reasonable time; next it was observed that the court should be careful not to assume that a prioritisation, though desirable in itself, would be appropriate in the greater scheme of things.722 and723 Burns v HMA and Forester v HMA are both unsuccessful appeals against extensions beyond the 12 month period.   O’Brien v HMA 2001 GWD 20-761, in which the court held that the delay, though unsatisfactory, did not breach art.6(1) does contain the observation that if similar delays were identified as occurring regularly as consequence of limited budgets or manpower available to the fiscal, the police or the forensic laboratory, this might amount to systematic underfunding, which would be unreasonable under art. 6(1).1030   Valentine v HMA 2001 GWD 25- 925, another delay case, is also worth a look, involving as it does a consideration of some of the elements of delay and their importance and significance over the whole picture of the progress of a case. In particular, Valentine would seem to signal an unwillingness of the Court of Appeal to speculate about the circumstances surrounding the appropriate investigation required in respect of a particular case.

Complications of culpable homicide

Someone could write a book about the way in which the stark facts of the charge of murder have led to the development of a highly complex doctrine of diminished responsibility justifying a verdict of culpable homicide. Much of the complications would be swept away if we made the charge in all such circumstances simply one of unlawful killing. There does not, admittedly, seem to be much in the way of a groundswell of popular support for such an idea, and so we continue to see developments of the sort to be found in the case of Galbraith v HMA(No2)  2001 GWD 25-924. Here a bench of five judges considered that the tests for diminished responsibility as set out in the case of  Savage (1923) had been misinterpreted in  Connelly(1991) and concluded that the law as presently understood was unduly narrow as regards the scope of the defence. The case is now clearly the leading one on this branch of the law and as such required reading; essentially it holds that the defence may be established without the requirement of proving some form of mental disease.

Attempting the impossible

Finally, and going back in a sense to where we started, although road traffic is possibly not quite the expression we are looking for, we have the case of Spence v McFadyen 2001 GWD 23- 878, which involves a successful appeal against a conviction for attempting to take and drive away a JCB tractor and failure to provide a breath specimen.   The facts disclosed that the appellant  was found in the driver’s seat of the vehicle with his hands near the controls with all the lights on and the nearside window smashed. He was unsteady on his feet and smelling strongly of alcohol. It was held on appeal that while it must be accepted that the appellant had overcome the security of the vehicle there was nothing to indicate that he had a realistic prospect of moving it or that he was making a serious attempt to do so. Well, to us old jurisprudes the concept of trying to do the impossible (stealing from an empty pocket, trying to procure an abortion in a woman who is not pregnant) had always been an interesting one and the idea that you might not be attempting to do something because you did not have a realistic prospect of success is one that we will have to chew over at leisure, always assuming that we have not misunderstood the decision. The case does seem to be authority for the general proposition that it is not a correct approach in cases of this sort to say to oneself, if he was not doing what he was charged with, what on earth was he doing?