Category Archives: Evidence

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Double Jeopardy and Ian Duguid QC

Ian Duguid QC

Double Jeopardy and Ian Duguid QC

The first “Double Jeopardy” trial to ever take place in Scotland was the trial of Angus Sinclair, defended by Ian Duguid QC it was the first to be held in Scotland following the ending of the centuries-old double jeopardy rule that meant people could not be tried more than once for any offence..

A number of countries already allow exceptions to the rule that a person should not be tried twice in relation to the same offence.

Double jeopardy is a widely-held legal principal, and forms part of the European Convention on Human Rights (ECHR).

But a number of countries allow some exceptions to this general rule.

Scotland joined this group in 2011 when MSPs passed the Double Jeopardy (Scotland) Act – legislation which was first used in the World’s End murder case.

It was reported in the Times and the Telegraph today that Antonio Boparan, could face charges of causing death by dangerous driving following the death of a little girl he left brain damaged and paralysed in a horrific car accident nine years ago.

Patrick Sawyer in the Telegraph reported that Boparan – the heir to a £130 million food manufacturing fortune – was found guilty of dangerous driving in April 2008, but was released just six months into his 21 month sentence.

Boparan could have faced 14 years in prison had Cerys had died immediately following the crash, but instead he served just six months as a result of being found guilty of the lesser charge of dangerous driving.

More than 13,000 people signed a petition calling for tougher sentences which was delivered to Westminster by Cerys’s parents in July 2009.

Due to a massive campaign for change the law was changed meaning that  anyone convicted of causing serious injury by dangerous driving now faces up to five years in prison, instead of the previous maximum of two.

This is  what came to be known as ‘Cerys’s Law’.

Now Cerys’ family have called for police to bring new charges against Boparan of causing death by dangerous driving.

A spokesman for Boparan said in a statement: “Antonio remains deeply remorseful of his actions as a teenager nine years ago and their tragic consequences.

“No words can appropriately convey the extent of his sorrow and regret at hearing this terrible news today. He sends his heartfelt condolences to Cerys’ family at this extremely difficult time.”

Do the changes to the law strike a balance in rights?

Sinclair had been tried and acquitted in 2007 for the rape and murder of two women and subsequently acquitted when a judge ruled there was no case to answer. The case ws widely reported as the “World’e End Murder” due to the link with the women and their visit to a public house of that name in Edinburgh.

The prosecutor at the High Court in Edinburgh had failed to provide forensic evidence vital to the case before the jury.

In Glasgow more recently we watched news reports of the Glasgow Bin Lorry crash, Fatal Accident Inquiry and  reporters and members of the public asked if the driver would now face criminal charges in light of some information that came to light during the course of the FAI. Legal opinion of many leading lawyers in this area  would seem to concur that it is most unlikely that Harry Clark, the bin driver concerned, will face prosecution as this was not a trial, where subsequent new evidence was discovered, this was a Fatal Accident Inquiry where the Crown had already given a written and public statement to the driver that he would not be prosecuted.

It is in the public interest to ensure that dangerous criminals are brought to justice. Hence, double jeopardy legislation is limited to the most serious of cases.

There would be a never ending flow of cases if “Double Jeopardy” applied in all criminal cases as witnesses decided to pop up all over the place as old scores were settled.

 

Ian Duguid QC was involved in the defence of the first double jeopardy case in Scotland and has been involved in many land mark cases in the course of his esteemed career at the Scottish Bar.

An experienced and renowned Queens Counsel, Ian has gained a broad range of expertise through a varied career including several years of service with the Attorney-General’s Chambers in Hong Kong, as a standing counsel to the Ministry of Defence and as an adviser to Her Majesty’s Government on offending related matters. He has acted as both prosecution and defence counsel in the High Court and Appeal Court, in some of the country’s most notorious recent prosecutions.

Selected Cases

Regina –v- Lam Kor wan – for the prosecution in notorious Hong Kong multiple murder case known as the “Jars Murderer”

Rosepark Nursing Home Health and Safety Prosecution

Brown v-Stott – landmark Privy Council appeal

HMA-v-Strachan & Ors –defending the only accused acquitted on the charge of conspiracy in the notorious child sexual abuse and pornography trial

HMA-v-Robert Cunningham – killing of Dundee toddler Brandon Muir

HMA-v-Daanish Zahid – the murder of Glasgow teenager Kris Donald

HMA –v- DT – homicide of 15 year old schoolboy in a school gym hall by fellow pupil

HMA –v- Robert Jennings – Helensburgh triple murder of the Sharkey family in a house fire

HMA -v- Clive Carter – murder of pharmaceutical conference delegate at the SECC

HMA –v- Said Fadal – murder of Imam’s son in Edinburgh street shooting by Somali gang

HMA –v- Aldaire Warmington – Rox jewellery store robbery in Edinburgh

HMA –v- Alice Ross – defence of oldest accused to face High Court trial in Scotland (aged 93) for causing death by dangerous driving


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Are You Consulting the Best Road Traffic Lawyer?

Graham Walker Solicitor

Graham Walker Solicitor

Are You Consulting the Best Road Traffic Lawyer?

A Road Traffic Lawyer is needed when things go wrong and you are facing a driving ban. Who do you choose and do you know what really matters when it comes to fighting a Mobile Phone Road Traffic Case?

No matter how many reminders from the police, the Government or Road Safety Organisations about not using your mobile phone while driving, there are still times when you just can’t help but pick up that call. If by any chance you’re already up to 9 penalty points on your driver’s license, and you got pulled over by the police because they say, you were using your phone, you may already need assistance from Graham Walker, Scotland’s leading road traffic lawyer.

 

Graham has been dubbed by the press as “Scotland’s Loophole Lawyer” you will get the message that he has earned a reputation amongst his peers and those who are “in the know” for his ability to spot opportunities to win a case where others fail. He has represented fellow solicitors, QCs, high ranking political figures as well as high powered business people and celebrities.

 

Roadtrafficlaw.com fight “Mobile Phone” road traffic cases on the basis that the evidence needs to be examined rigorously. Often a video reconstruction is required to examine the police viewpoints, phone records may require to be obtained and lodged in court. Obtaining phone records in a Mobile Phone Road Traffic Case is not as straight forward as you might think and actually involves drafting and lodging a document with the higher, Sheriff court and having a hearing to allow the telecoms co to release the third party data to you. We are not looking to mitigate the offence with an excuse. Use of your mobile phone while on the road knows only one excuse and that is use in an Emergency (As defined in law…calling the police etc)

It doesn’t matter if you tell the officer that pulled you over that the phone call you had to make was an emergency, they’d still charge you with an offense until that issue has been checked out. However, with the help of Graham Walker Lawyer, you might be able to win the case in court. Here are some common reasons that clients have explained to us as being “Emergencies” They are not regarded as emergency telephone calls as far as the law is concerned.

Examples of when clients could not help but pick up that phone:

  • Your boss is calling, and you are expecting to be dealt with in a disciplinary hearing that may lose your job.
  • Your pregnant wife is calling you.
  • You remembered leaving the door at home unlocked.
  • An unknown number is calling, and curiosity makes you want to pick up that call.
  • Your child’s teacher or principal is calling you.

 

These are only a few of the many reasons why people can’t help but pick up the phone. As much as possible, you need to pull over when picking up the phone. Even when pulled over you may still be committing an offence if it looks to the police as though you are still in the process of driving. Switch that engine off.

Though using a hands-free device is presently considered safer (The jury is out on that research) this may actually be accepted by court to establish your defence so take photographs of your hands free set up. Try to show the police where it is and how it works. Don’t be surprised if they are not interested as they have made up their mind and “you are it”, as far as they are concerned.

Our main website at Roadtrafficlaw.com gives further advice and assistance and we have a free factsheet that you can obtain simply by getting in touch. No obligation and no sequence of Spam mails from uninvited authors!! I promise.

What if that phone call surprises you, distresses you or otherwise contributes to an accident of some kind? —whether it’s good or bad news—that causes you to drive off road, or collide with another road user, you can expect to be dealt with by way of a much more serious charge. Dangerous Driving or a contravention of Section 2 of the Road Traffic Act 1988 is what you can expect to face and that carries a 12 month ban minimum and an order to re sit your driving test. It’s bad enough to get into an accident by yourself but even worse when you have other people involved in that accident? If that happens you could be in the nightmarish position of facing causing a death by Dangerous Driving.

 

Road traffic law in Scotland is a complex and difficult area of practise and many general practitioners feel that it is best to refer such cases to specialist firms like Graham Walker and roadtrafficlaw.com. We work on a completely transparent process of rewarding such firms with a “Profit share” referral fee, they can receive 10% of our agreed fee or they may wish to discount the client’s fee by that 10% or have us make a charitable donation for that amount.

Police officers do sometimes get it wrong. In a split second they draw the wrong conclusion and the next thing is that you are facing a 3pp endorsement and a £100 fine or much worse a Totting Up ban of 6 months. However, if you need help in your defence or if you badly need to win this case, then you must consult with a road traffic lawyer such as Graham Walker.

 The police don’t need video/photo evidence to say that you’ve disobeyed the road traffic law in Scotland  so you definitely need a road traffic lawyer in order for you to win the case. Trust no one but a road traffic lawyer with 30 years of experience in Criminal Law with a  road traffic specialty—contact Scotland’s Loophole lawyer for a FREE case consultation today. Call Graham Walker on 0800 612 9597 today.

Road Traffic Law


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How To Use Video Evidence In Court

Category : Evidence

As a road traffic lawyer I see video evidence being used more and more in the courts of Scotland. We actively encourage our clients and former clients to install “In car” or “Worn on” video cameras and to keep them running whenever they are on the road. I have even had the situation where we bought a lapel micro video camera for a client who claimed he was being harassed by a police officer and was unable to go about his day to day business without constant fear of arrest on some trumped up charge.

Interestingly I have defended a fellow a solicitor where dashboard video evidence became utterly vital in securing an acquittal on a Breach of the Peace, Road Rage, type case. Conviction would have meant damaging his reputation and losing his job. This man and his solicitor wife were returning home from a social function when they were confronted by a two females in a car who flashed their lights at them signalling for them to stop, they had taken umbrage at how he had manoeuvred around a roundabout. When he stopped he was subjected to a barrage of abuse, he left the scene immediately but was followed by this person who subsequently went to a police office that night and reported him for dangerous driving. The evidence from his dashboard camera was instrumental in proving his accuser to be a liar and securing his acquittal.

We often reconstruct an alleged offence to enable the court to see the viewpoint of witnesses and exactly what can and cannot be seen from their vantage point. It would not be the first time that we have had evidence from witnesses where the video proves it would be impossible for that witness to see what they claim to have seen. We find this method particularly useful in cases where people are prosecuted for use of a mobile phone when driving as it sometimes helps us establish that the police simply could not have seen what they claim to have seen.

We recently concluded a death by dangerous driving case where the Crown had secured CCTV evidence from a nearby security camera. Their analyst reviewed the evidence, concluded our client had been travelling at a certain speed and was in a certain position and that lead to a fatal collision with a pedestrian. He gave this as his evidence, however when my assistant Steven Farmer reviewed that evidence for the 100th time he noticed that our clients’ motorcycle could be seen in 2 frames of the CCTV and not one and that the Crown expert’s speed and position calculations were therefore wrong, leading to the acquittal of our client who had been facing a lengthy jail sentence if convicted. This demonstrates that we have to be extremely careful about the weight we lend to what we can see on a video.

Our present Lord Justice Clerk has launched an Evidence and Procedure Review Report recently (In March 2015) where he chairs a working group that have set out proposals/suggestions regarding how the process of criminal trials in Scotland can be improved. The use of video evidence figures large in that paper and it is fair to say that it is a very controversial document as it seems to advocate the use of video in several revolutionary ways that in my personal view may hinder justice rather than assist it. Yes, I agree that contemporaneous video evidence taken at the time of the alleged offence or even re construction video can be of great assistance but I am deeply concerned that the report goes further and seems to prefer the video recorded evidence of eye witnesses rather than their testimony. Obviously we can all see the benefit of a video recording of a witness who is interviewed at the scene of the alleged crime, almost like a news reporter gathering comments from onlookers but the inherent weakness of that is that the so called witness is not on oath, is not in a court of law and is shielded from the scrutiny and cross examination of the defence. They may have little to go on other than body language and a gut feeling that this particular witness is not reliable and is lying or is unreliable because of something that has been said or a nuance from something that has been uttered. For justice to be seen to be done I would suggest that the defence must have the opportunity of questioning all witnesses, live, before a judge and jury. Even live video link evidence is a poor substitute for evidence from the witnesses in court however where we have children and vulnerable witnesses it is only right that they are protected from the stress and undue hardship of facing a former tormentor in open court.

Lord Carloway’s proposals on the face of it seem nothing more than the implementation of sound common sense in the light of a changing world where technological advances have made video and audio recording extremely cheap and ubiquitous. What we must be extremely careful about is the seduction of technology over the rule of law. Our evidential laws have worked well in preserving the rule of law and justice in this country. My fear is that we are led down the garden path of technological advancement to be met at the door by a wolf in sheep’s clothing. That wolf being an irascible judge who demands to know what possible defence the accused might have to a charge when we can see video evidence that seems irrefutable. I believe that the passive neutral judge and jury of our adversarial system, are well worth preserving.

There is no doubt that the Evidence and Procedure Review Report is timely and entirely appropriate but if we see it being used to bolster the judicial role in the trial process I fear us moving away from the adversarial role that has served us well to an inquisitorial role that is so radically different from our traditions and our concept of a fair trial that there would undoubtedly, be casualties in the transition. The aim ,of the rule of Law in Criminal Procedure, in a democratic and rights based jurisdiction like ours, is to ensure procedural fairness whilst balancing the rights of the individual with the rights and interests of society in general. If a Judge or Sheriff takes a more active role in the trial process by questioning the need for witnesses where for instance we have some video evidence, then I fear we become more like the inquisitorial system but without the support of laws of evidence formulated and developed over centuries to keep that Judge or Sheriff in check and ensure that matters are progressed in a just manner for the accused.

Since our system has evolved around an adversarial approach, our laws of evidence and procedure are devceloped around that approach and therefore might be hindered and curtailed by a change to a more inquisitorial role for our Judges and Sheriffs. This opens the door to injustice and it only takes one injustice to make us all the poorer for it.

I am old enough to remember the case of Ernest Barry when in 1989 he was convicted and sentenced to jail for 18 years following “expert” evidence that identified him from CCTV evidence, as a bank robber, however 3 years later he was released when more experts (At the behest of the BBC TV Program “Rough Justice”) were able to demonstrate without doubt that the identification of Barry had been flawed and he was wrongly convicted.

What people don’t know is that the defence lawyer who represented Mr Barry faced a nightmarish situation of trying to obtain Legal Aid funding for the further experts review and testimony. He needed to find approx. £30,000 to pay for that report and the witness expenses. There was no facility in place with the Scottish Legal Aid Board to agree the payment before it was made. (They did not feel the expense was justified as there had been “expert evidence” at the time of trial and the issue resolved) The lawyer mortgaged his own home and funded that scrutiny of the video evidence and thereby secured the liberty of a man who would have been in jail for a further 15 years. (The Scottish Legal Aid Board ultimately refunded that fee in full) This is important because Legal Aid is being attacked from all sides at a time when we see more and more video evidence being introduced into our courts. We will need funding to check the authenticity and provenance of it and I suspect the Scottish Government might not be too keen on paying the video experts as they charge a great deal more than the £30 per hour presently charged by Legal Aid lawyers. Or as Alex Salmond might call them the “Clever Dick lawyers” and judges who are “Daft Toffs”

As a defence lawyer I would be appalled to stand by and watch the destruction of fundamental principles of fairness and justice in the name of technological advancement but not at all averse to the common sense application of video where we can all see that the uses of same are completely fair to ALL parties and not just the Crown this could go along way to securing speedy, just and efficient trials that will benefit us all.