Improbability Driving the narrative
Looking for White Van Man
How Did They Do That?
A Kangaroo in the Court Room
How to Procure Injustice
The Cost of Injustice
"A proportion of those who have been convicted will continue to protest their innocence, but verdicts have
historically been treated as final, and despite the establishment of appeal courts and ..... independent criminal case review
commissions, it remains very difficult for those who have been found guilty to have their convictions quashed."
Prof P Ferguson, Chair of Scots Law at Dundee University
1 - 1st Extension of Time application
2 - Scottish Criminal Cases Review Commission
3 - The European Court of Human Rights
4 - 2nd Extension of Time application
1 - 1st Extension of Time application
A couple of days after the trial, my partner and I went to see Crookwank to discuss my appeal.
"Now what are your grounds for appeal?" he enquired.
I said I thought that was his job. He said I had no grounds for appeal:
"You are guilty of Careless Driving on your own admission. I'm an Advanced Driver. I used to race cars although I don't hurry now.
I've been a PF. If I'd been on the Bench I'd have found you guilty."
In Scotland you can only appeal on a point of law by saying, in effect, that the Sheriff has got it badly wrong.
Few solicitors are willing to stand up and say that, particularly when there is no transcript of the trial to refer to.
However, this did not stop Crookwank from phoning the Legal Aid Board and getting an extension to my legal aid to cover the interview.
The usual string of anecdotes followed, before we got down to discussing an appeal against the sentence alone.
He said he did not advise it, because the appeal judge could increase the sentence or even reinstate the original charge.
This sounded like blackmail.
"It would be very foolish. I do not advise it."
Instead of 'marking' an appeal, he sought Counsel's opinion. Counsel is an advocate
who inhabits the appeal courts in Edinburgh and knows how the judges think.
Advocate Moira C. MacKenzie's opinion matched Crookwank's exactly.
This was not altogether surprising, since she had only received his version of events at Court.
So I sent her a polite letter that asked if she had had access to the Sheriff's Notes
before drafting her Opinion. I wanted to know if she had relied solely upon what Crookwank had told her.
I was, in effect, questioning and criticising her Opinion.
Back came a snotty letter from her chambers rebuking me, a mere member of the public, for contacting an Advocate
in this way.
The slogan of her chambers goes like this:
REMEMBER WE ARE HERE TO HELP YOU.
I learned later that the smart way to proceed is to put in an appeal, no matter how groundless.
The Sheriff then has to give the reasons for his decision, upon which a more informed judgement can be made as to whether to
continue or abandon the appeal.
65% of appeals are abandoned, either by appellants or as a result of a three-phase filtering process called the SIFT. Of those that
do get through only 7% are successful. In only a tiny proportion is the sentence increased.
Since Crookwank was effectively refusing to take further instructions, I attempted to get a second opinion.
My prospective solicitor, Ian Woodward-Nutt, asked who had been acting for me. When I mentioned
Crookwank's name he said, "I'm sorry I can't help you" and abruptly put the phone down.
So I filled in a form, obtained from the Court, and made the appeal myself, sending it to the original
Court in Dundee. The reply said I was out of time - you only get 7 days to mark an appeal.
Months later, having worked hard to build up a case, I submitted an application for an Extension of Time in which to appeal.
Back came the reply, delivered by a Lord Nimmo Smith, on a single page entitled Interlocutor Sheet in
Extension of Time. The irrelevant parts of the form had been hastily scratched out and the noble Lord's
reason for refusing my application scribbled at the bottom.
It was so badly written that in a letter to my MSP, the Solicitor General herself stated that I had
actually been granted leave to appeal.
When I wrote to Elish Angiolini to correct her faulty impression, I remarked
that the Interlocutor Sheet had "evidently been written by a man for whom a fine lunch beckoned".
Had I known that Nimmo Smith was a Munroist (Number 641) on his 2nd Round, I might have added that he was probably far too busy
working out his average time per mountain to be bothered with a trivial case like mine.
Angiolini apologised, saying Nimmo Smith's Interlocutor Sheet had not been completed correctly and its content was initially misunderstood.
2 - Scottish Criminal Cases Review Commission
The SCCRC looked at the evidence of the white van that was in the wrong place at the wrong time and dismissed it, giving a variety of muddled
reasons for doing so. In particular, it concluded that even though the prosecution's 3 witnesses might have made identical errors
when giving the location and timing of a crucial item of evidence - the broken-down van - their credibility was not undermined and
there was no suggestion that they were lying.
I felt the Commission might have added a disclaimer: No flying pigs were harmed in the making of this conclusion.
[Text from the SCCRC's report is in italics, with my emphasis in bold text.]
I had always heard of this body, and its English equivalent, in the context of serious cases like murder.
I looked it up on the web and they sounded fairly user-friendly. There was an application form, so I filled it in, taking care to
present my arguments in detail and with as much clarity as I could manage. I was pleased that the Commission took on my application,
despite the absence of any court records. They wrote to my former solicitor, to the Sheriff, to the Procurator Fiscal and to the Court
for information, much of which was disclosed to me when they gave their opinion 9 months later.
Without them, I would never have known what the Sheriff thought, or that before the trial, some of the charges had been
dropped and others amended.
The Commission examined my case in considerable detail, so much so that I think it failed to see the wood
for the legal trees - it was so concerned with legal technicalities that it failed to detect that the Crown's evidence had an improbable flavour to it.
Of course, I had little in the way of hard evidence to present to the Commission, and it responded predictably enough. Here is an example:
The Commission considers… that there is no way of knowing whether the Crown witnesses conspired to falsify the
allegations made against him. The Commission considers these submissions to be entirely without foundation. The police were not under a
duty to investigate the independence of the witnesses in the applicant's case, where there was no reason to doubt same.
The adversarial nature of the criminal justice system in Scotland means that it was open to the applicant to instruct his solicitors
to carry out investigations in this regard, and to present this as a line of defence at trial. However, the applicant has presented
no evidence upon which to base his claims in relation to this matter and there is no reason to believe that this would have been a
persuasive argument if presented in his defence.
My main argument was founded on the suspect dock identification process and on the Crown's failure to disclose the evidence of the white van.
This is what the Commission had to say on the latter:
The Commission notes that the applicant is correct in his assertion that the statements of Crown witnesses
were not made available to his solicitors prior to his trial. It has also taken into account the decisions of the Judicial Committee of the
Privy Council in the cases of Holland v HMA 2005 SCCR 417 and Sinclair v HMA 2005 SCCR 446, in which it held that the Crown have a duty to
disclose to the defence evidence in their possession which would tend to exculpate the accused, or would be likely to be of material assistance
in the preparation or presentation of his defence, and that a failure to do so would be an infringement of an accused's right to a fair trial
in terms of article 6(1) of the European Convention of Human Rights and could result in a conviction being overturned.
Nevertheless, the Commission notes that it has subsequently been established that not all failures to disclose relevant information
will result in a miscarriage of justice. In the case of Kelly v HMA 2006 SCCR 9, the High Court held that, in determining whether such a
failure was incompatible with an accused's right to a fair trial in terms of article 6(1), the critical issues included the materiality of
the statement and the nature and extent of any prejudice suffered, the obligation being to disclose anything that would be likely to be of
material assistance to the proper preparation or presentation of the accused's defence. In that case it was held that a failure to disclose
previous statements of a witness did not violate the appellant's article 6 right to a fair trial, where the purported discrepancy identified
in a statement was limited and would not have undermined the witness's credibility or reliability to any degree.
Late in the day, I sent the Commission the
Police Incident Log
that gave the location of the van that the witnesses had mentioned in their evidence.
I submitted that since the van had been logged at a point 1.5 kilometres from the alleged incident, the witnesses must have been lying.
The Commission did not see it this way, however.
Its report devotes a large number of words to this item of evidence, yet their reasons for rejecting it are still something of a mystery.
I append the relevant section below:
12. The Commission has considered the submissions put forward by the applicant in relation to this matter.
It has also taken into account the police incident log in which a report of a broken down van is made, which the applicant submitted with
a letter dated 15 November 2006. In particular, it has taken into account the applicant's claims that the log describes the van being
present around 40 minutes after the incident described by the Crown witnesses, and that the grid co-ordinates which it contains suggest
that the van had broken down on the westbound carriageway of the carriageway around 1.5 kilometres south-west of the eastbound carriageway
spoken to by the witnesses for the Crown. The exact location of the van is not confirmed in the log, but the Commission has proceeded on the
basis of the applicant's interpretation of the grid co-ordinates, in order to consider his submissions at their highest.
13. In assessing these submissions, the Commission has again considered the cases of Holland v HMA 2005 SCCR 417 and
Sinclair v HMA 2005 SCCR 446, referred to in paragraph 19 of the interim statement of reasons, as well as the case of
Kelly v HMA 2006 SCCR 9 referred to in paragraph 20 of the interim statement of reasons.
It has reviewed its conclusions in relation to this matter in light of the additional information now put forward by the applicant.
The applicant's submissions suggest that the Commission was wrong to conclude that, in terms of the test put forward in the case of Kelly,
the information in the Crown witness statements would not have been of material assistance to the proper preparation or presentation of the
his defence. He suggests that, had he known about the van, enquiries could have been carried out to obtain additional evidence in this regard.
The report which he has submitted is cited as being such additional independent evidence which would have had a bearing on his case
14. In considering this aspect of the applicant's case, the Commission has found it helpful refer to the previous authorities of the
High Court which discussed the test which should be employed in assessing additional evidence. In the case of Kidd v HMA 2000 SCCR 513 ,
the High Court referred to the previous cases of Church v HAM 1996 SCCR 29 and Cameron v HMA 1987 SCCR 608, and outlined the approach to
be taken in any appeal based on fresh evidence. It held that the governing question in any such appeal is whether the fact that the
evidence was not heard at the original trial represents a miscarriage of justice, and that it is not a question of whether the evidence
is significant, but whether it is of such significance as to lead to the conclusion that a verdict returned in ignorance of it must be
regarded as a miscarriage of justice. In doing so, it made clear that the significance of evidence includes considerations as to its
relevance, materiality and importance, and its quality in point of credibility and reliability, the overall impression which is
created being the important consideration. While it is sufficient that the evidence is capable of being regarded by a reasonable jury
(or trial judge) as both credible and reliable, its cogency is of critical importance. In the case of Al Megrahi v HMA 2002 SCCR 509
the test was further outlined by the High Court, when it stated inter alia:
"(2) In an appeal based on the existence and significance of additional evidence not heard at the trial,
the court will quash the conviction if it is satisfied that the original jury, if it had heard the new evidence, would have been bound
(3) Where the court cannot be satisfied that the jury would have been bound to acquit, it may nevertheless be satisfied that a miscarriage
of justice has occurred.
(4) Since setting aside the verdict of a jury is no light matter, before the court can hold that there has been a miscarriage of justice it
will require to be satisfied that the additional evidence is not merely relevant but also of such significance that it will be reasonable to
conclude that the verdict of the jury, reached in ignorance of its existence, must be regarded as a miscarriage of justice.
(5) The decision on the issue of the significance of the additional evidence is for the appeal court, which will require to be satisfied
that it is important and of such a kind and quality that it was likely that a reasonable jury properly directed would have found it of
material assistance in its consideration of a critical issue at the trial.
(6) The appeal court will therefore require to be persuaded that the additional evidence is (a) capable of being regarded as credible
and reliable by a reasonable jury, and (b) likely to have had a material bearing on, or a material part to play in, the determination
by such a jury of a critical issue at the trial. "
15. Having regard to these decisions, and to the grounds on which the Commission may refer a case to the High Court in terms of section
194C of the 1995 Act, the Commission has considered whether the evidence which the applicant has now uncovered would have been likely to
have had a material bearing on, or a material part to play in, the determination by the sheriff of a critical issue at the applicant's trial.
It has come to the conclusion that it would not. The information provided by the applicant suggests that there was a van broken down
40 minutes after, and some distance from, the incident which was described by the witnesses for the Crown. It is not clear to the
Commission why this would suggest that the witnesses were lying in describing the incident which they spoke to in evidence. The
information does not clearly undermine the witnesses' reliability, as it does not provide proof that they lied about what they saw earlier
in the day. Nor would it have been likely to have had a material bearing on their reliability, as it was not in dispute that the witnesses
were travelling eastbound, and it is therefore unlikely that any suggestion that they may have made a mistake about what they saw on the
basis of this report would have been successful. There is no way of confirming if the van referred to in the log was the same vehicle to
which the witness's referred in their evidence. Moreover, the Commission does not consider that this information would have had a material
bearing on the sheriff's consideration of the standard of the applicant's driving, as spoken to by the witnesses in their evidence.
So, after the failure of logic and common sense highlighted in the paragraph above, the Commission said it was "not minded" to refer the
case to the High Court.
3 - The European Court of Human Rights
In March 2007 I grappled with the bilingual form used by the European Court of Human Rights for appeals.
I saw that the rules state that applications have to be within 6 months of the final decision by a domestic court.
The High Court's peremptory rejection of my appeal had taken place some 13 months earlier, with the intervening time
taken up by the SCCRC's deliberations. I hoped that the Europeans would consider the SCCRC to be part of the domestic
It took them 2 years to get to the point of considering my appeal.
At that point, some frog-faced functionary dismissed it using the injustice system's favourite get-out clause: "Out of Time".
It had all been a complete waste of time.
4 - 2nd Extension of Time application
In November 2009 I re-submitted my application to the High Court in Edinburgh for an Extension of Time.
To my surprise, the new application was accepted for consideration, though the judge,
Lady Paton, "refused the prayer".
She did hint that she might be prepared to reconsider if she had a sight of various documents, including the Police Incident Log
and the SCCRC decision.
So, ever anxious to keep my Lords and Ladies busy, I sent off a wad of paperwork.
This time the rejection took over two weeks to arrive, suggesting that Lady Paton, unlike Nimmo Smith, had at least read
through all the documentation.
Click to see the Interlocutor Sheet
page 1 and
This was effectively an appeal, though one that was put before a judge sitting alone without any verbal submissions.
And it was rejected.