Ampersand’s Susanne Tanner QC and Una Doherty QC appointed as SSSC Legally Qualified Chairs

Ampersand congratulates two of its silks, Stable Director Susanne Tanner QC and Una Doherty QC on their appointments as Legally Qualified Chairs by the Scottish Social Services Council (SSSC).

In their new roles, they will chair panels with social service and lay members to decide whether workers’ fitness to practise is impaired.

Their appointments have increased the extensive work that Ampersand members undertake in the regulatory field.

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High Court full bench finds nobile officium petition by rape complainer competent

The High Court of Justiciary has determined that a nobile officium petition made by a complainer in a rape case after she was not notified of an application by the accused to lead evidence of their sexual history is competent under the doctrine.

The petitioner, RR, is the complainer in criminal proceedings in which the second respondent is charged with, inter alia, raping her. The second respondent made an application under section 275
of the Criminal Procedure (Scotland) Act 1995. It was heard during the course of a preliminary hearing at the High Court in Glasgow on 2 October 2019. The petitioner was not advised that the application had been made. She was only told of it some four months later, after it had been granted in part, when the Crown sought to precognose her. An intervention in the case was made by Rape Crisis Scotland.

The petitioner applied to the nobile officium of the court for orders: (i) declaring the decision to grant the section 275 application to have been “wrong, unjust and contrary to law”; (ii) quashing the decision; and (iii) refusing the application. Much of the petition involves a challenge to the merits of the decision at first instance. It addresses its competency under reference to Article 8 of the European Convention. It then avers that, in terms of section 1(3)(d) of the Victims and Witnesses (Scotland) Act 2014, the petitioner had, and has, a right to participate effectively in the proceedings. That right required that she be advised of the application in advance in order to enable her to discuss her position with the Crown and to challenge the application. The latter would, at least in certain circumstances, include a right to appear at the hearing of the application. The petition raises an important issue of principle in relation to a complainer’s right to participate in criminal proceedings. The court convened a Full Bench to consider it

The court concluded that there is no doubt that a complainer’s Article 8 rights are likely to be engaged when a section 275 application is allowed and relates to, for example, conduct remote from the
events forming part of the libel. Whether what is allowed amounts to a breach of these rights will depend upon the circumstances. The right is to have a person’s privacy respected. It is not one which prohibits questioning, or the leading of evidence, about private aspects of a complainer’s life, where that is in accordance with the law and necessary in order to protect the rights and freedoms of others. An accused’s right to a fair trial, including the Article 6(1)(d) right to examine witnesses, may be an important factor in determining an application. At this preliminary stage it is not possible to assert that the petitioner’s Article 8 rights will be, or are even likely to be, breached.

Given the protections which are built into criminal procedure, both at common law and by sections 274 and 275 of the 1995 Act, a court ought, if it correctly applies the law, to be able to ensure that a complainer’s Article 8 rights are duly respected whilst securing a fair trial for the accused at the same time. Evidence of matters which are irrelevant or collateral to the offence libelled is inadmissible. Evidence of bad character is normally excluded as collateral. In terms of sections 274 and 275, questioning or evidence, which is designed to show that a complainer is not of good character, has engaged in sexual behaviour not forming part of the events libelled or has, at a point remote from these events, behaved in a manner from which an inference of consent or lack of credibility/reliability, is not generally admissible.

The upshot of this is that, quite apart from section 1(3)(d) of the 2014 Act, in order to respect a complainer’s Article 8 rights, the court must be given information on the complainer’s position on the facts in, and her attitude to, any section 275 application. Neither the statutory provisions nor Article 8 carry with them a right for a complainer to be convened as a party. In the absence of statutory intervention, the system of criminal prosecution remains an adversarial one between the Crown and the accused. The complainer’s status is still that of a witness to the facts libelled.

For the reasons given, it is the duty of the Crown to ascertain a complainer’s position in relation to a section 275 application and to present that position to the court, irrespective of the Crown’s attitude to it and/or the application. This will almost always mean that the complainer must: be told of the content of the application; invited to comment on the accuracy of any allegations within it; and be asked to state any objections which she might have to the granting of the application. The court may require to adjust its preliminary hearing procedure, and the relative form (Forms 9.3A and 9A.4) accordingly. It is only by doing this that the principle that the complainer should be able to obtain information about the case and to participate effectively in the proceedings, along with her Article 8 right of respect for her privacy, can be upheld.

Ampersand’s Dorothy Bain QC, with ArnotManderson’s Paul Harvey, instructed by Livingstone Brown represented the Petitioner.

The full Opinion of the court can be viewed here.

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Appeal of Abdelbaset Al-Megrahi refused

A bench of five judges has refused a posthumous appeal against the conviction of Abdelbaset Al-Megrahi. Ampersand’s Ronnie Clancy QC and Douglas Ross QC were 2 of the 3 counsel team for the Crown.

Mr Megrahi was convicted in January, 2001 of the murders of 270 people after a bomb was planted on a passenger plane which flew from London to New York. The plane disintegrated over the town of Lockerbie on 22 December 1988.

Mr Megrahi was convicted at a specially arranged trial which took place in the Netherlands before a bench of three Scottish judges sitting without a jury.

The case was unsuccessfully appealed in March 2002. Five years later, the Scottish Criminal Cases Review Commission (SCCRC) referred it back to the Appeal Court on grounds that there may have been a miscarriage of justice. This appeal was abandoned by Mr Megrahi in 2009.

In March 2020, the SCCRC referred the case back to the Appeal Court for a second time. This appeal is concerned essentially with two issues: whether the verdict was unreasonable having regard to the quality of the testimony of the witness Toni Gauci; and whether the disclosure of certain material would have created a real possibility of a different verdict i.e. acquittal.

The first ground of the referral was that the verdict of the trial court was one which no reasonable jury could have returned. It focused on whether the trial court had been entitled to find that it was Mr Megrahi who had bought clothes which were packed into a suitcase containing the bomb planted on the plane. The SCCRC were critical of the identification evidence given by Maltese shopkeeper Toni Gauci, who had sold the clothes on 7 December, 1988.

The second ground contended that the prosecution had failed to disclose certain documents to the defence. These mostly related to the reliability of Mr Gauci’s identification of Mr Megrahi as the person who bought the clothes, and included various police statements and reports, as well as the content of CIA cables.

The judgment, delivered by the Lord Justice General, Lord Carloway, makes clear that the appeal was not directly concerned with other persons or organisations being involved in the murder, except in so far as that involvement might exclude Mr Megrahi as a participant in placing the bomb onto the Air Malta flight to Frankfurt – from where it was transferred to London. The appeal judges stated that their role was not to retry the case but to determine whether the conclusion of the original trial was unreasonable or not.

The lawyers representing Mr Megrahi’s family argued that Mr Gauci’s evidence around identification had contradicted his police statements in relation to age and height and was so inconsistent that no reasonable jury could have regarded it as reliable or credible.

However the appeal judges rejected this argument. Mr Gauci’s credibility had not been challenged during the trial and it was reasonable to accept that his testimony was reliable. Evidence under oath mattered rather than police statements. Despite other inconsistencies, the witness had consistently described the man who bought the clothes in his shop as a Libyan. The evidence in relation to Mr Megrahi resembling the shopper was but one element of the overall picture. Other evidence included the purchase of the bomb detonating timers by the Libyan Jamahiriya (People’s Republic) Security Organisation – where Mr Megrhai was head of airline security; and information that Mr Megrahi was in Malta, and at the airport, using a false passport at the time the bomb was planted on the plane which travelled from Malta to London via Frankfurt. He had given no explanation as to why he was there.

The SCCRC referred the case to the Court on a second ground which related to documents not disclosed to the defence. The first document was a police report which stated that Mr Gauci had seen images of Mr Megrahi in a magazine in advance of an identification parade. The second revealed that, prior to the parade, Mr Gauci had seen a newspaper article in It Torca which had a photograph of the accused and discussed a potential threat to Mr Gauci who feared his shop may be bombed. The final documents related to the potential for the payment of a reward to Mr Gauci.

The counsel for Mr Megrahi’s family argued that these documents might have changed the way the defence handled the case and the failure to disclose them had denied Mr Megrahi a fair trial.

The Crown said that, at the trial, the defence had been working on an assumption that Mr Gauci had seen photographs of Mr Megrahi in the media many times and had been well aware of the offer of a reward. The documents would not have provided a valid ground to challenge the admissibility of the identification evidence.

Even if the Court had come to the view that the parade and dock identifications were unreliable, it would have been able to treat the earlier identification from police photographs as reliable. That identification, taken in conjunction with the other evidence which incriminated Mr Megrahi fitted together to form the same “real and convincing pattern” which the Court found established. It took account of the nature of what was a resemblance identification, the passage of time, and the care with which the witness expressed himself.

The appeal judges ruled that the content of the documents would have made no difference to the defence’s preparation or presentation of their case; or to the verdict reached by the Court.

The fact that Mr Gauci had been prepared to proceed with an identity parade and to identify Mr Megrahi at the trial in the face of perceived dangers to his life would have been seen only to strengthen that identification.

In relation to the reward documents, they had not indicated that Mr Gauci was motivated to testify, or to identify Mr Megrahi, because of the prospect of a reward, but rather the reports had described him as a person with a strong sense of honesty and decency.

The full judgment can be read here.

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