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© All images are copyright of the SSC Society, Angus Bremner, and Graeme Ross 2018  |  Data Protection  |  TwitterFacebook  |  Contact

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  • Following the first appearance at Edinburgh Sheriff Court of former First Minister Alex Salmond on a number of charges of sexual offending, much of the commentary on solemn criminal procedure in Scotland, including some from newspapers and organisations with access to quality legal advice, has been surprisingly misinformed on certain of the basics of what has already happened, and what may or will now happen. Criminal procedure in Scotland is largely governed by the Criminal Procedure (Scotland) Act 1995, which has been amended numerous times since coming into force in April 1996 [1] , but remains the key statute. It is divided into two discrete types; solemn, for more serious cases, and summary for less serious ones. The maximum penalty for a single conviction in summary proceedings (except where it is proven that bail was breached by the commission of the offence) is twelve months imprisonment. In solemn proceedings, the maximum sentence that may be imposed in the High Court is life imprisonment, and in the Sheriff Court the maximum custodial sentence is five years imprisonment. Only trials in cases prosecuted under solemn procedure are heard before a jury. Unlike some other countries, the accused cannot elect to be tried by jury. That is a decision for the prosecutor alone, based upon the nature of the offences and the likely sentence in the event of conviction, although there are certain offences such as murder and rape which are of such an obviously serious nature they may only ever be prosecuted in the High Court. Terminology There are a few terms specific to Scots law that may come as a surprise to readers outside the system. The person facing the charge is not “the defendant”; in modern practice he or she is called “the accused”, although the older term “the panel” may still occasionally be heard. A witness who asserts that he or she is the direct victim of a crime is “the complainer”. When the Crown is ready to take the case to trial the accused is “indicted” (rhymes with “excited”), and the case will be prosecuted by the Lord Advocate, who is the chief prosecutor in Scotland, or one of his appointed prosecutors, who are entitled “Advocate depute”. In the lower courts, the prosecutions are undertaken by lawyers called Procurators Fiscal, who are paid employees of the Crown, mostly practice in specific local courts, and who hold commissions to prosecute on behalf of the Lord Advocate. The first appearance in court With a very few exceptions, everyone whose case is tried before a jury makes their first appearance before the Sheriff Court in answer to a petition proceeding in the name of the local Procurator Fiscal. This part of the procedure is quite ancient and its present-day requirements are quite simple. The fiscal presents to the court a petition which must identify (1) an accused person or persons, and (2) a crime or crimes known to the law of Scotland. The petition seeks authority of the court to carry out certain steps in the investigation of crime, some of which are now governed by statute, but this grants authority to the prosecutor to secure the documentary productions in the case, interview witnesses and cite them and to have enquiries carried out elsewhere in the country if necessary. In modern practice the petition also contains a brief summary of the Crown case so that the accused and his lawyer can be aware whether there is on the face of it evidence to justify the making of the charge. The charge on the petition need not be, and very often is not, the charge ultimately faced at trial, so the accused is not called upon to plead. Until 2017 it was possible for an accused to make a declaration before a sheriff or to be examined by the prosecutor in the presence of the sheriff (but not on oath) directly after a first appearance. The first of these was a relic of 19th century procedure when the accused was forbidden to give evidence in their own case. the law on this only changed in 1898. It was vanishingly rare in modern practice. The second was introduced in 1980 but soon discovered to be pointless, as no-one was ever advised to answer questions before having sight of the evidence, so both were abolished with few paying any heed. The accused therefore now simply makes “no plea”. The prosecutor may or may not oppose the accused being released on bail. Whether bail is opposed or not the sheriff must consider whether it should be granted [2] . In general, where an accused has no previous convictions, has a fixed address and employment and there is no indication of currently being engaged in a course of criminal conduct, bail will be granted. Unlike cases in the USA, this does not require the posting of any sum of money that may be forfeit; the penalty for non-compliance is an additional sentence that may be consecutive to any sentence imposed for the original offence. Even if acquitted of the main offence, if the accused failed to comply with bail conditions they may be sentenced. Where bail is granted, the accused is “committed for further examination” and no date is fixed for the next appearance. This may in practice be many months in the future. Where bail is refused the accused must return to court within eight days for a second appearance, known as “full committal” where the court may once again consider bail. Once again, no plea is tendered at full committal stage as the court is still considering the Fiscal’s petition. Proceedings on petition take place in private. There may be cases where information regarding offences later not proceeded with, previous convictions, threats to witnesses or flight risk may be considered without the hearing of evidence, so the reason for the hearings being held in private seem obvious. In certain parts of the country the potential pool of jurors could be tainted by information about past offending/alleged but unproven interference with witnesses becoming public knowledge. A hearing in private is of course not the same as a hearing in secret. The press and other media are allowed to report that a named person (different rules may apply where identification of children arises) has appeared on certain charges and been granted or refused bail. Comment beyond that is strictly forbidden, but there is nothing unusual about the press being advised of the charges faced. Preparation for trial At this stage, so far as the public is concerned, the case falls into limbo. The Crown carries out its preparation and must disclose its evidence to the defence [3] , while the defence will undertake its own investigations. Throughout this period the accused is subject to the protection of the court. If the Crown seeks to undertake investigations beyond these contained in the petition warrant (search of newly discovered premises, taking of physical samples), it must seek permission from the court. Both Crown and defence will be preparing long and hard for the forthcoming trial, but details of these investigations are considered strictly confidential. Throughout this period and until the case concludes with a plea or a verdict, the law of contempt of court applies. Public speculation on guilt or innocence, revelation of names of people granted anonymity (this applies to all complainers in sexual offence cases), assertions as to motives on the part of complainers, can all amount to contempt of court and can result in prosecution and punishment, including imprisonment. Again, the restrictions on comment on ongoing court proceedings often comes as a surprise to commentators in the USA. In high profile cases, the law of contempt of court can struggle when information is posted online from foreign countries, although sharing posts or re-tweeting within the UK will be considered publication and can still give rise to prosecution . The indictment Ultimately the Crown will determine which charges should be prosecuted, and an indictment is drafted in the name of the Lord Advocate specifying the precise nature of the charges the Crown seeks to prove, and in which court the case is to be heard. This is the first time the accused is formally aware of the charges that will be heard by the jury. The indictment may be served on him in person or may be served via his solicitor [4] . This will cite the accused to a first diet (sheriff court) or preliminary diet (High Court), and 29 days notice of the date of the preliminary hearing must be given. The Act further provides that where the accused is on bail the trial must commence within 12 months of first appearance. In order to prevent delay in trials the Act provides that where the accused is on bail, the preliminary hearing must commence within eleven months. Thus, in the case of Mr Salmond the Crown must (in theory) indict by 25th November for a preliminary hearing on December 24th 2019. However, where an indictment has been served on the accused in respect of the High Court, a single judge of that court may, on cause shown, extend either or both of the periods of 11 and 12 months specified [5] . In practice, where the case is complex and/or likely to last several weeks, extensions of time are commonplace, so no-one should assume that the case of Her Majesty’s Advocate v Salmond will start hearing evidence in or before January 2020 The Preliminary Hearing will take place in a public court, and the details of the charges, although not the identity of the complainers, may be reported. The Crown and defence will have provided the court with written records of the state of preparation of their cases, which witnesses’ evidence will need to be heard and which witnesses’ evidence is formal and capable of agreement. Each side must specify when and how they communicated with the other side and what steps have been taken to agree formal evidence. Where the accused pleads not guilty, the defence must confirm that the accused is aware of the discount on sentence available for a guilty plea. The defence requires to submit a brief statement of its position in respect of the charges; where this involves a complete denial of guilt this does rather render the preceding question pointless. If the defence is a special one (for example, that on the date of an alleged offence the accused was elsewhere, or where the charge is of rape or attempted rape that the complainer consented), this must be intimated before the preliminary hearing. Courts expect both sides to be fully prepared for trial at the Preliminary Hearing unless there is good reason not to be, such as new evidence coming to light very late in the day a wholly unforeseeable issue emerging. In general, judges are reluctant to continue preliminary hearings and instead look to fix trials. Pressure on court diaries mean that it is exceptional for a trial date or dates to be available within the next month; motions to extend the twelve month limit are routinely granted to fit the court’s requirements, and those of the accused, witnesses and counsel. In practice trials may start two to three months after the preliminary hearing. Throughout this period the Crown and the court will remain diligent in its seeking to preserve the integrity of proceedings from any issue of contempt of court. Postscript Since this was written there has been much online comment on the private or secret nature of the petition hearing itself. Having practised in court for over thirty years I had not really considered how little non-lawyers understand about what happens in a petition hearing, so some further clarification is necessary - 1. The charges are not “read out”. The petition (and summary of evidence) is provided to the accused and considered by the accused and their lawyer before the case calls. 2. When the case calls, the only persons present are the sheriff, the prosecutor, the clerk of court, the accused plus lawyer, and court security staff. 3. There is no discussion of the evidence, nor is the accused called upon to plead, for the reasons explained above; the lawyer simply announces that the accused “makes no plea” and the Crown moves to commit the accused for further examination. 4. In all cases bail must be considered, although sometimes it is not requested. 5. Most of the hearing is taken up with consideration of the question of bail. 6. The defence may seek bail and the Crown opposes this. In this situation the Crown sets out its grounds of opposition (commonly nature of the charge plus one or more of previous convictions, breaches of court orders, alleged course of conduct, specific risk to witnesses, risk of absconding), and the defence sets out arguments in favour of bail (e.g. fixed address, in employment, willing to adhere to curfew/surrender passport, accept additional conditions to safeguard witnesses). The court then makes a ruling. 7. The defence may seek bail and the Crown does not oppose this, but seeks additional special conditions relating to specific witnesses, addresses, curfew, or restrictions on computer use and agreeing that police may have access to computer equipment. It is for the Crown to justify why these extra conditions are necessary and why standard conditions, which include a duty not to interfere with witnesses or affect the course of justice, will not suffice. Such arguments may be lengthy and may require the prosecutor to refer to matters in the police report that have not been fully investigated or verified. Once again, it is for the sheriff to decide whether additional conditions are necessary. 8. The defence may seek bail and the Crown does not oppose this being granted on standard conditions. This is usually fairly formal, although the sheriff still retains a legal right to refuse bail. There is some concern at the lack of information made public, although the press and other media may still report that a named person appeared in court on a specified charge or charges and bail was granted or the accused was remanded in custody. Since the coming into force of the Data Protection Act 2018, neither Crown Office nor Scottish Courts and Tribunal Service is willing to provide additional information. Unless the case involves a child, where Section 47 prevents the inclusion of “any particulars calculated to lead to the identification, of any person under the age of 18 years concerned in the proceedings” this is not due to anything contained in the Criminal Procedure (Scotland) Act 1995 but is a matter of legal advice on GDPR policy. Whether that policy is correctly applied may be a matter for argument elsewhere. [1] For the present version, see http://www.legislation.gov.uk/ukpga/1995/46/contents [2] Criminal Procedure (S) Act 1995, s. 22A [3] Criminal Justice and Licensing (Scotland) Act 2010. s.121 [4] Criminal Procedure (S) Act 1995, s. 66 (6C), Act of Adjournal (Criminal Procedure Rules) 1996 r. 2.2A [5] Criminal Procedure (S) Act 1995, s.65 (3)
  • Donald Sage Mackay is one of only three recent holders of judicial office to have been a member of the SSC Society, the other two being Lord Minginish and Lord Mulholland. Donald Mackay was born in 1946, attended George Watson’s College and graduated from the Universities of Edinburgh and Virginia. He qualified as a solicitor in 1971, joining the firm of Allan McDougall, and was a member of the SSC Society from 1973 until 1976 when he was admitted to the Faculty of Advocates. He took silk in 1987. He held several important appointments, especially those of Solicitor General for Scotland (1995) and later Lord Advocate (1995-97). In the latter capacity in 1995 he was created a life peer. Lord Mackay was appointed as a Judge of the Court of Session and the High Court of Justiciary in 2000 and retired in 2013. He retained a lifelong interest in the SSC Society and held his retirement dinner in the Library. After a long illness Lord Mackay died on 21 August 2018.
  • Over the past months, much publicity has been given to the case of PF Airdrie v Mark Meechan [1] , which relates to the consequences of Mr Meechan posting on YouTube a short video entitled “M8 Yer Dugs [sic] a Nazi”. As everyone now knows, in the course of this short clip, Mr Meechan’s dog lifted its fore paw in response to Mr Meechan using the words “Sieg Heil” and (apparently on 23 separate occasions) “Gas the Jews”. The existence of the video on a public forum came to the attention of persons who found its content grossly offensive, the matter was reported to COPFS, a summary prosecution was commenced under Section 127 of the Communications Act 2003 and after a trial lasting around four days, spread as is normal in present-day summary procedure over several months, he was found guilty and ultimately fined. Leave to appeal both conviction and sentence has now been refused at the sifting stage, and this has resulted in a great deal of criticism of the Scottish legal system, much of it ill-informed. The applicable law Mr Meechan was charged under Section 127 (1) of the Communications Act 2003, which states that a person is guilty of an offence if he – “(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or (b) causes any such message or matter to be so sent.” The charge can only be prosecuted summarily by virtue of Section 127 (6). There was therefore no question of the case ever being heard before a jury; Parliament has chosen to preclude that. In the context of the case, the key words were clearly “grossly offensive”. There could be no doubt that by electing to post the clip on a public site dedicated to the showing of video images, which could be viewed anywhere, the message was “sent”, and no counter argument was submitted to the sheriff. Some commenters, though, have taken the view that the role of the sheriff at trial is the same as that of Humpty Dumpty in Through the Looking Glass [2] – “When I use a word, it means just what I choose it to mean — neither more nor less.” On this view, every sheriff, magistrate or judge applies a purely subjective test, viz. - “does this offend me?” That is not the view the law takes. While the statutory offence is of recent vintage, verbal comments giving rise to offence and alarm have been criminal for centuries, and cases can be found at common law in respect of written communications as far back as the time of Baron Hume [3] . Sending a letter to a named individual in which threats were made to third parties, but not to the recipient himself, was found to be a relevant criminal charge in 1815 [4] . Hume’s view was that to be criminal there needed to be more than mere insult; there needed to be “circumstances of rage and disturbance as to justify alarm with the fear of further mischief [5] ”. As the common law developed in the context of breach of the peace, in the era where words travelled only as far as they could be heard and where publication was the province of authors and editors, the issue developed rather as one of disorderly conduct, although the use of offensive language directed at a third party not present at the time could still found a criminal charge into the 20th century; for example the comments made by the accused in PF Perth v Robert Mathieson [6] , where a man clearly unhappy at the outcome of court proceedings accused a number of legal figures of being “cowardly, perjury-abetting vermin”. Modern methods of communication make it absolutely obvious that words causing grave offence can travel round the world in seconds. Should the uttering of such words be criminal? While some hard-core libertarians take the view that no words ever used in any context should attract criminal sanctions, even where the words impart direct threats to personal safety, the more common and practical view is that there will always be limits on free speech; there is no “right” to shout fire in a crowded venue to cause panic, no right to defame by making knowingly false allegations, and no right to place someone in a state of fear by uttering direct threats. Should the law become involved where the person viewing or otherwise becoming aware of the comment that caused fear and alarm was not in any sense its intended recipient? It is at least arguable that the import of the 2003 Act was not to create a whole new class of offence, but to ensure that behaviour that was criminal in other contexts could not escape punishment merely by virtue of it being sent electronically. Issues arising from the wording of the Act had come before the court several times. In respect of “offensive”, rather than indecent or obscene massages, the court had considered the sentencing issues in Rodgerson v PF Alloa [7] , which involved an individual pleading guilty to making a number of grossly offensive remarks about the death of a child and sexual remarks about children. While the issue before the court related only to whether the offence merited registration under the Sexual Offences Act 2003, it did not express any disquiet as to the soundness of the plea. Again in Hill v HM Advocate [8] , where the messages alleged that the complainer offered sexual favours to other men, there was no challenge to the validity of the conviction. The arguable distinction in Mr Meechan’s case, is that the persons offended were not the recipients of the original message. The actions of Mr Meechan On any view, Mr Meechan, while presenting himself as a champion of free speech, does not appear an obvious successor to the likes of Martin Luther King or Nelson Mandela, neither of whom ever gloried in the titles “Professional Shitposter” and “Edgi Boi [sic]”. His idea of humour is not one that many of an older generation would find amusing, although he seems unaware of the extent to which casual racism was a staple of mainstream television in the era in which Sheriff O’Carroll grew up. It must be said that his “comedy” is not notable for its subtlety, but the only issue for the courts related to a single video clip, posted in April 2016. It is not clear, nor does it matter, who first reported it to the authorities, but the Procurator Fiscal clearly formed the view at the outset that the content of the video was grossly offensive and thus merited prosecution. It seems to be accepted by all concerned that the words “gas the Jews” were repeated on 23 occasions, images of Adolf Hitler and the Nuremberg rally were shown, and strident music played. Equally, it seems beyond doubt that amongst those who viewed the video there was a significant proportion that actively saw it as racist, and as a vindication of their own racist views. Whether that was anticipated by Mr Meechan cannot be said with certainty, and he denies personally holding racist views, he seems at the very least to have been reckless as to the consequences of online publication. Proceedings appear to have commenced some time in 2017 (the statutory time bar under the Act being one of three years), with evidence being heard from September 2017 until 20th March 2018. Mr Meechan’s explanation was that the video was made as a joke, intended only to annoy his girlfriend, the owner of the dog. However, this seemed inconsistent with its being posted on a public communications network on a channel to which she was not a subscriber. He accepted that the phrase “Gas the Jews” was anti-Semitic though not, he said, when used as part of a joke. In this regard I am reminded of the phrase much used by the late Sheriff Irvine Smith QC when faced with a submission more notable for optimism than reality – “brave, but doomed”. Whether Mr Meechan realised that the video would be seen by Jewish viewers is not clear, nor is it immediately apparent to what extent he considered their reaction. It appears that if he considered something to be a joke, so would every other viewer, although his channel is reported to have borne the words “provides offensive social comedy and skits that get people thrown in prison”. In any event, evidence was led from witnesses, including Ephraim Borowski of the Scottish Council of Jewish Communities, who were deeply offended, and Mr Meechan gave evidence in his own defence. Ultimately, as we know, he was found guilty and fined, although he expresses his wish to go to prison rather than pay the fine. Freedom of speech Much of the criticism of the court’s decision is based upon its effect upon the concept of “free speech”. It might be helpful to note at this stage the relevant part of the sentencing statement (emphasis mine) – “[A]lthough I invited both legal representatives to make legal submissions during the trial about the law on freedom of expression, that was done only to a very limited extent. In the absence of focused submissions on that topic by either the Crown or the defence, all I can say is that, while that right is very important, in all modern democratic countries the law necessarily places some limits on that right.” Some have sought to draw unflattering parallels between the decision of the court and certain well-known comedy moments focussing upon Nazi Germany. It seems obvious, to me at least, that in the famous “Germans” episode of “Fawlty Towers”, that Basil Fawlty is the butt of the joke, not the innocent guests. Likewise, it is difficult to interpret the joke in “Springtime for Hitler” in Mel Brooks’ “The Producers” as directed at anyone other than the (Jewish) theatrical producers seeking to profit from staging the most offensive and badly performed show imaginable. I cannot see that teaching a dog to raise its paw in response to anti-Semitic language is comparable in comedy terms. In any event, it appears that there was no meaningful debate on the application of Article 10 of the European Convention on Human Rights or citation of its leading case law. Whether this was a deliberate decision on the part of his agent is not clear from the trial judge and appeal judge’s comments, but given that Article 10.2, read short, states “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society….[and] for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others.” British courts have never supported an unfettered right to speak in any manner at all. Whether in private or in public, there has always within a mature legal system been recognition that where words cause offence, this can stray into the realms of the criminal law. That Mr. Meechan was convicted, the court having rejected his defence, was therefore not wholly surprising to lawyers, although some on the fringes of comedy where the boundaries of “offence” may be somewhat fluid clearly disagree. The Sheriff Appeal Court Having been convicted and sentenced, Mr Meechan exercised his statutory right to appeal against both conviction and sentence, and it is here where the expectations of his supporters diverge most radically from legal reality. In summary proceedings, where the sheriff is the master of the facts and the sole arbiter on issues of credibility, an appeal by stated case to the Sheriff Appeal Court [9] may only be made on a point or points of law. The right to submit an appeal exists in all cases, but following concern at the amount of court time taken up with disposing of appeals which had no merit, the court now exercises a gatekeeping function, based upon the written grounds of appeal and the contents of the stated case as drafted by the sheriff and finalised after adjustment by prosecution and defence. This paper review is conducted by a single appeal sheriff [10] who may either grant or refuse leave to proceed to a full court hearing. Where leave to appeal is refused, there is a statutory right to apply to a court of three Sheriff Appeal Court judges for leave to appeal, once again in writing; it “shall be considered and determined in chambers without the parties being present [11] ”. The powers and duties of the court of three sheriffs are the same. This, I would suggest, is a wholly unremarkable system. Either there are valid grounds of appeal or there are not. Whether the grounds are valid or not, they can be summarised in writing by a lawyer and submitted for consideration. An appeal is not a “second bite at the cherry”, but a process in which a higher court determines whether a lower court has failed to apply the relevant law correctly. There needs to be an identifiable error. In modern practice, most of the appeal process is conducted in writing, and where an appeal does proceed to a hearing the court requires to see full written argument from both sides some weeks in advance of the hearing itself. Mr Meechan has elected to publish documents which confirm that his case failed at both the first and second stage, the court being unable to identify any error of law. Therefore, before any question of further oral argument could arise, no fewer than four senior sheriffs have considered the grounds of appeal and detected no error in the findings of the original sheriff. On any view, Mr Meechan has been given ample opportunity to ventilate his criticisms of the decision of the original sheriff. While some might argue that open justice suggests this should be done in public, the fact that Mr Meechan has chosen to post the decision online indicates both that the decision itself was not secret and the likely outcome of any oral submissions. At this stage I pause to note that a sum in excess of £190,000 was crowdfunded before leave to appeal was granted, on the surprising assertion that the costs of the appeal would exceed £100,000. Given that this was undertaken at a time when the SAC was considering paper documents, and when it was far from certain leave would be granted, the amount proposed in the crowdfunding request appears rather rash, and there will no doubt be a full accounting into how much was spent, and how money is to be refunded, given that an application to the Scottish Criminal Cases Review Commission (which conducts its own enquiries through public funding) will not generate much additional expenditure. While Mr Meechan seems determined at present to send himself to prison rather than accept his current penalty, the Terms of the GoFundMe site on which he sought donations offer very wide discretion to the fund manager – “[w]e assume no responsibility to verify whether the Donations are used in accordance with any applicable laws; such responsibility rests solely with the Campaign Organizer or Charity, as applicable [12] .” Finally, some comments need to be made anent the trenchant criticisms made of the solicitor who conducted the trial and later plea. I was not present in court so can base my comments only on the terms of the letter from the SAC, and do not propose to name him. Many commenters were deeply concerned with the appeal sheriff’s obvious unhappiness at the way in which the plea was presented, but this is once again fundamentally misunderstanding the role of the defence lawyer post-conviction and pre-sentencing. While a case is at trial, the duty of the defence agent is to use his best endeavours, within what is permitted by law, to seek to have his client acquitted. His right to cross-examine witnesses and call defence evidence in accordance with his instructions is not restricted. However, once a verdict is delivered, the role of the defence lawyer changes. The appellate sheriffs recognise this, but it is less clear that the solicitor acted appropriately. There can be no criticism of an agent telling a court “My client maintains his innocence and intends to pursue the further legal avenues open to him.” Indeed, it is probably ethical to observe that an accused does not recognise the justice of the statute under which he was convicted, provided the agent recognises that everyone in the court is bound to conform with statute law as it exists at the time, and only the relevant Parliament may change or repeal the law. In my understanding it has never been regarded as appropriate for a solicitor, who is in addition to being the agent for his client an officer of the court and a member of a professional body with published practice rules to express a personal view on the soundness of a verdict. Law Society guidance [13] states that a solicitor “must maintain due respect and courtesy towards the court while honourably pursuing the interests of your clients”. In rejecting the finding of contempt of court against Aamer Anwar, who had made some public criticism of a verdict prior to sentence being passed, in July 2008 [14] the High Court observed “If they are of the view that it is in their client's best interests to make public comments on court decisions in proceedings in which they have been involved, about which we say nothing, we consider that their duty to the court requires them, in doing so, to display the highest professional standards. In particular, we consider that they have a duty to ensure, first, that their public utterances, whether critical or not, are based upon an accurate appreciation of the facts of those proceedings, and, second, that their comments are not misleading.” While the solicitor’s comments were made in the context of a plea in open court, it does appear that certain of his remarks went beyond the role of delivering a plea in mitigation; the suggestion of an “apparent attempt to intimidate the court” is clearly concerning, although I recognise that this may not be a wholly accurate assessment of what was said, and the solicitor’s reaction to the suggestion has not been made public. It is, though, worthy of note that the comments made by the appeal sheriff anent advice on contempt of court were based upon the trial sheriff’s report, rather than on the plea itself, the trial sheriff not apparently having considered the plea as giving rise to this possibility. While many view the case as demonstrating deficiencies in the Scottish system of criminal justice, and recognising that there is clear room for improvement in our summary courts, I do not find either the trial, verdict or appellate procedure to present any objective concerns for the present or future. [1] http://www.scotland-judiciary.org.uk/8/1962/PF-v-Mark-Meechan [2] Lewis Carroll, Through the Looking Glass, and What Alice Found There (1871) [3] Hume’s Commentaries on Crimes (3rd Edition, Ed. Ben R Bell), pub 1844, reprinted by the Law Society of Scotland 1986 [4] HMA v John Jaffray, Hume (op. cit.), Vol 1, p. 441 fn [5] Hume (op. cit.), Vol 1, p. 343 [6] The Scotsman , 6th July 1984, reported in Christie – Breach of the Peace (pub. W. Green 1990) [7] [2016] HCJAC 12 [8] [2016] HCJAC 35 [9] Under the Criminal Procedure (Scotland) Act 1995, s. 176 [10] CP (S) A 1995, s. 180 (1), (2) [11] CP (S) A 1995 s.180 (6) [12] https://www.gofundme.com/terms [13] Rules and Guidance , Para. B1.13 [14] [2008] HCJAC 36