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A Kangaroo in the Courtroom

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 (in)justice, Kangaroo Court seems an appropriate description of their proceedings.
Here are some of the contrivances used by the system to hop around the law.

Independent witnesses

To convict a person of a crime or statutory offence requires two independent items of evidence - such as two independent witnesses.
One might think that such a requirement would have carried with it an obligation to carry out checks on witnesses who claim to be independent.
Not so - the authorities appear to be under no such obligation.
In fact, there is no requirement to investigate any aspect of a crime. If the prosecution thinks it has a cut and dried case why would it bother?

So why didn't the Procurator Fiasco ask for checks to be made?
To answer this I have tried to reconstruct here the prosecution solicitor's thought processes when she was assigned the case.


It is a principle of justice that the accused should know something of the evidence against him, so that his solicitor can prepare an adequate defence.
In my case, two of the witnesses failed to provide any statement other than ones made to the police. These were too brief and too inaccurate (getting the location of one of the 'incidents' wrong) to be of much 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 at the site of the "accident" - until the day of the 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 knew nothing 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. When disclosure occurs, it is done as a favour - from one member of the legal brotherhood to another - and grudgingly, at the last possible moment before the trial.
Scottish criminal justice is a much more closed and secretive process than elsewhere.
Stubbornly, it intended to remain so; but a ruling by the Privy Council in London in May 2005 started a process of chage.
The Council said that after a case where the Crown failed to disclose a police statement that was inconsistent with evidence given by a witness, all statements in future will have to be made available to the defence as a matter of course.
After 2010, the Crown in Scotland has been required to carry out an assessment of the evidence and disclose all that is relevant as soon as practicable.
Even so, the Scottish Criminal Bar Association has said recently that, "There is a considerable problem with the implementation of the disclosure process...The difficulty is that Crown disclosure is routinely haphazard [and] sporadic...".
As an example, "umpteen letters are written to the Crown asking for disclosure of evidence (cctv etc) which go completely ignored and it is impossible to find the right person to talk to about a case to progress it or obtain information.

"The most basic thing in the world is providing the defence with the case against them."
Nazir Afzal speaking to BBC News on January 27 2018


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 - Rob Roy - could not identify me.
Pointing to someone in the dock and confirming that he is the accused may be stating the obvious rather than proving anything, but all is not lost: the cross-examination provides a safeguard.
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.

No appeal

The Privy Council's 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 Sheriff Court proceedings.
Under the Scottish system, you can only challenge the Sheriff's application of the law; and because there are no records kept it would come down to your solicitor's word against the Sheriff's recollection.
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 the Appeal Court.
And, if it does get through, there is always the tasty threat of an increased sentence to consider.

*In 2016 a Sheriff Appeal Court was established. The time allowed to lodge an appeal was extended to 28 days.