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Please find attached most of the documents we have so far in relation to Tony Arnott and Peter Dunn. It is not necessary for you to have sight of Productions 1, 2 and 3.  If we go to trial this will, of course, be before a jury in the High Court. Could you please look over the documents and prepare a memorandum containing your opinion on whether we should proceed with all or indeed any of the charges. We have yet to have sight of any documents from the defence, but in providing your opinion, you should take account of what you anticipate they are likely to submit in terms of Section 70A of the Criminal Procedure (Scotland) Act 1995. Taking into account the following statements and interview, prepare a memorandum in which you
 
(a)Discuss potential problems of admissibility and of witness competency/compellability relating to the items of evidence contained in the papers. (In respect of admissibility, you should discuss the admissibility or otherwise of hearsay evidence, confession/interview evidence, real evidence, character evidence, identity evidence and expert/opinion evidence.)

(b)  In the light of the various burdens and standards of proof relevant to each charge, the requirements of sufficiency and corroboration for each charge, the strength of the evidence and any inferences which can be drawn from it, any rhetorical devices that can be used in the case, plea bargaining, the likely response of the defence to the charges and any other factors which you think may help or hinder us, discuss the likelihood of success for the prosecution and whether the charges should be proceeded with.

Defense Statement under Section 70A

I am hereby appointed as a Junior Advocate to deal with the case of Tony Arnott and Peter Dunn. Both of them are charged under certain provisions laid down under Criminal procedure (Scotland) Act 1955. It is my duty to write down the facts of the case so that it may be understood that whether the duo can be proceed in the High Court with the provisions alleged against them.

In this current case, the Criminal Procedure Act 1955 has empowered the accused party to submit defense statement within the specific period of 14 days and this date is calculated before the preliminary hearing of the case. This provision is laid down under section 70A of the Criminal procedure (Scotland) Act 1955. It has also been stated by the provision that the accused may place any changes, whatever he wants to do within seven days before the commencement of hearing.

There are certain particulars that the defense party must include in their statement. These particulars can be categorized as nature of the defense and those facts that the accused person disagrees with the plea made by the prosecution. The defense statement must also required to include those provisions that can make his ground strong and all the other information that the defense party wants to disclose through the prosecution. The defense party is required to mention the ground and reason of his trust on those documents. He also has to clarify the grounds and nature of the information before the court.

  • Two types of productions are present that assist the defense party to present their prayer before the court. These productions are named as labeled production and documentary production. There are certain differences present in between them. Documentary productions are more reliable compared to the labeled production. An expert report or any reliable books can be considered as the documentary evidence. On the other hand, labeled production assists to identify the witnesses at the trial section. Labeled production is a form of articles that are required to be labeled. The labels are attached to the articles by the police officers or by other investigating officers and the seals attached there are required to be broken before open or produce the articles before court.
  1. The documentary productions can be categorized as interview memo, statements of the witnesses of this case such as the statements of Sandra Mitchell, DC Bell, DC Vernon, Alfred Fredericks, James Horsburgh and Rosa Inness. Apart from the witness statement, there are two expert reports from the department of packaging and design and the forensic authority submits the other.
  2. The labeled production includes keys of the locker, an adhesive tape, interview recording tapes, a brown parcel ceased by the investigating officers to this effect and certain membership cards.
  3. It is to be considered that the statement made by the witnesses are falls under the definition of hearsay evidence and therefore it is required to be examine whether the statements are considered under the category of exception or they will be less competent to be produced regarding the case.
  • After the production of those documents, certain issues can be cropped up that will help the court to understand the admissibility of those attached documents. The issues can be categorized as follows:
  • Whether the statement of the witnesses are laid down under the inadmissible ground of hearsay evidence or not;
  • Whether the statement will fall under the category of exception to the rule of hearsay evidence or not;
  • Whether the audio recording that are produced as an evidence is admissible or not;

viii. Hearsay evidence is those statements that collected from the outside of the court and produced before the court to act as evidence to support or goes against the plea of either the prosecution or the defense parties. However, in general meaning, hearsay evidence is not evidence though there are certain exceptions to this rule. These evidences are testifying both the oral as well as the documentary statements.

  1. Under the Criminal Procedure (Scotland) Act 1955, there are certain exceptions to this rule of hearsay evidence. All these rules are engraved under the section of 259 of the Act.  It has been stated by the rules that in case of any of the following, the evidences will be treated as admissible. According to the Act, if any statement has been derived from any person who has been died before the execution of trial proceeding, any statement that has been made before the accused person and statement regarding the identification of the accused person. Under the Criminal Procedure (Scotland) Act 1955, res gastie has been treated as an example of hearsay evidence. According to this rule, any words that are included under the part of the physical act or anything that reflects the state of mind of anyone should be treated as admissible though the nature of the those statements are hearsay.
  2. It has been stated under the provision of section 259 of the Act that the court has the discretion to allow the admissibility of hearsay evidence after considering certain grounds. The presiding officer of the court can consider oral statement of any competent witness, evidence that has been derived from any documents that is important to the case or any statement made by the expert as admissible.
  3. The admissible ground of the hearsay evidence is a matter of conflict. An interpretation of section 259 reveals the fact that a prior approval is required to precede with the statements made by co-accused of a case. However, the same rule has been quashed in the historic case of Brand v HMA [2011]and the court in that case was pleased to observe that statement made by the co-accused can be treated as admissible by court and that will fall under the provision of section 259 of the Act.

xii. Certain rules are stated under the Evidence law of Scotland for the presiding officer of a court. The presiding officer could not refuse any statement that made under section 259 of the Act. In this case, he could not exercise his discretionary power. The judge may disallow evidence in case the outcome of the admissibility will deny the principle of justice.   

xiii. The nature of the evidence that has been provided under the Act will be divided into three parts such as real evidence, documentary evidence and oral evidence. According to this Act, the term real evidence denotes physical evidence that is tangible in nature. By documentary evidence, the Act has provided the example of testimony of the expert or any kinds of documents or report that are relevant to the fact of the case. Oral evidence means the statement of the eyewitnesses of the matter and the statements that come under the exceptions to the hearsay evidence.

Particulars required in Defense Statement

xiv. Certain restrictions are provided under the Law regarding the testimonies given by the witnesses of a case. If the testimony of a witness may lead to false statement, he will be charged under the provision of perjury. Further, no one can create pressure to make other liable for a criminal offence. No one is allowed to make contempt of court.

The rules regarding the competency of witness has been changed after the abolishment of the Act of Vulnerable Witness of Scotland in 2004. Ample of power has been given to the jury and the presiding officer of the court to determine the fact whether the statement of the witness can be treated as admissible or not.

xvi. Certain rules are prescribed to hold the evidences made by the experts as admissible and according to the Criminal Procedure (Scotland) Act 1955; the forensic experts are allowed to give their testimony only if required by the court to that effect. Further, the evidence or examinations taken by the experts should be based on the organized science and the evidences must be reliable in nature. In McTear v Imperial Tobacco Ltd No, the court has found that in case of a legal proceeding, the statement of an expert will be admissible if the base point of the evidence is outside the knowledge of normal person and it becomes necessary to derive the evidence from the experts.

xvii. It has been provided in the case of Allison v London Underground Ltd [2008] EWCA CIV 71 that the experts are allowed to convey their abilities regarding those matters that are included under their authorities. They, at any cases, are not allowed to submit any statements that are exclusively within the authority of the court. Under the Act of Scotland, the experts are not possessing any special categories. They are treated as a general person who is making their submission on asking either by parties or by the court.


xviii. Under the Act, the reliability of evidence is based on two facts such as evidence that is based on material facts that has been known as facta probanda and facts that are reliable but not based on material facts. These facts are known as facta probantia. Facta probbantia is established through corroborated evidence. Evidences, which reflect the nature of the direct evidence is a part of the corroborated evidence. They hold an important place under the Scottish Criminal Law.

Hearsay Evidence in Scottish Law

xix. After the production of evidence both under the nature of facta probanda and facta probbantia, the court will discuss the admissibility of the evidence and in such cases, the court will establish the critical issues in this regard and it will determine the sufficiency of the facts.

In the case of Smith v Lees, it has been held by the court that the corroboration of the facts must be depended on the crucial facts. Crucial facts are defined as facta probanda under the legal maxim. The corroborated evidence supports the direct evidences and the principle has been laid down under the case of Fox v HMA. It has also been observed under Lockwood v Walker; the court will not be able to consider the relevancy of evidence until the same is based on the crucial facts as a whole. An important note has been made in the case of Meredith v Lees. It has been found in the case that the statements that are confessed by the accused must be based on critical facts and in the absence of this, the conviction could not be pronounced.

xxi. The defense parties may take the plea under the provision of “no case to answer”. It is a well-known provision of the British Criminal law where the defense can take the plea of acquittal without submitting any defense. This principle has been established in Lipkin Gorman v Karpnale Ltd. In case the evidences that are produced against the accused are tenuous in nature or the facts of the case are opaque in nature, the court may acquit the accused under this plea. However, the prosecution is allowed to make an objection to this effect under section 107A of the Criminal Procedure (Scotland) Act 1955.

xxii. Besides the provision of “no case to answer”, the accused can take several other steps to avoid the court proceedings. The steps include the process of plea-bargaining, where the defense party can confess the crime with an intention to reduce his penalties.

xxiii. Considering the facts of the case, it can be stated that the locker where the accused person has kept the drug should be enlisted under the primary evidence. Therefore, the statements made by Rosa Inness should be regarded as important evidence, as she kept the keys of the locker. It has further been observed that she had identify all the accused, as lender of the locker. According to her testimony, it can be stated that both the persons were came to her and kept the brown envelop in the locker from where the alleged drugs has been found. She also stated that Tony Arnott and Tony Evans is the same person. Considering the position of Rosa, her statements should be treated as important and reliable, as she was in the charge of the locker.   

Presiding Officer and Evidence Law of Scotland

xxiv. In this case, the alleged locker has been labeled as “A1”. The main key of the locker was kept with Rosa. The defense counsel that Rosa has certain ocular problem has stated it. According to their submission, Rosa had not wear any eye gear at that point of time and therefore, her statement could not be reliable in nature. Further, according to her description, the person who came to her that day was tall and handsome and on that basis, she had identified the accused. The defense counsel that if the statement of Rosa can be taken, the accused can be anyone who is tall and handsome and there is no strong evidence that the accused were present at that time has considered it.

xxv. However, according to the identification system of the case, it can be stated that Rosa was quite sure about the physic of the accused and she had identified the accused in spite of wearing any eye gear. Therefore, it can be stated that the statement made by Rosa is admissible as she is one of the primary eyewitness in this case.


xxvi. While nurturing with the oral statement made by Bell, the Detective Constable of the case, it can be considered that he was quite familiar with the accused and he has previous knowledge that they are engaged with drug peddling. Therefore, there are certain grounds by which it can be proved that the statement made by DC Bell is admissible.

xxvii. Under the Criminal Act, the defense prosecution is required to prove the good character of the accused and in this case, it has been observed that the accused has certain previous criminal history and therefore, they had failed to meet the requirement mentioned under section 270 of the Criminal Procedure (Scotland) Act 1995.

xxviii. It has also been observed that both the accused has certain previous history and both of them were charged before. According to the police report, Tony Arnott was a pimp who trafficked the teenager girls to the strip club and Peter Dunn was nabbed under the provisions of the Misuse of Drugs Act before. The police officials had supported these facts too and this made the validity of the statement made by DC Bell more prominent.

xxix. There are certain possible grounds of questions made by the defense counsel regarding the admissibility of statement recorded during the interrogation room at the police station. One of the very common question that can be made by the defense counsel that the accused had confessed their guilt or stated certain adverse statement due to nervousness or due to pressure. However, under the law of Scotland, it can be stated that the statement made before the police official will be held as admissible evidence. This statement has been established by section 261ZA of the Criminal Procedure (Scotland) Act 1995.   

Types of Evidence under the Criminal Procedure Act 1955

xxx. Certain hindrance has been made during the statement given by James Horsburgh. After completing certain research about James, it has been come to my knowledge that James was previously known to accused (Peter Dunn) and he had certain previous criminal history too. Further, he was not physically present at the time when the police was chased Peter. Additionally, he is unaware of the facts that Peter is peddling drug and he has also no knowledge regarding the alleged brown packet. It can be assumed that the statement made by him has been tampered and therefore, the prosecution could be impeding if his statements were admitted by the court.

xxxi. From the list of prosecution, it can be understood that Sandra Mitchell is manager of Terant’s Bar and all her statements were based on the fact she had heard at the bar. According to her, she was not quite sure that Tony is the real culprit or not. She is also not sure that the keys of the locker were within the custody of Tony or not. It has further been stated by her that she did not see the keys at all. All her statement clarified the fact that her statement will impede the process and thereby ought to be inadmissible in nature.

xxxii. According to the general rule of the Evidence Act, hearsay evidence is no evidence unless certain exceptional requirements have been met. The witness should be the prime witness in this case. Further, he or she is required to experience the relevant facts of the case physically. However, those requirements were not getting fulfilled in case of Sandra and therefore, all the statements made by her should not treated as valid witness.

xxxiii.   Detective Constable Bell had, in his statement, highlighted the name of two bars and Alfred Fredricks is one of the managers of the bar. According to the rules, the evidences given by he is quite admissible as he is working under the supervision of Tony Arnott, one of the accused in this case and he met him at the day when the alleged offence has been taken place. Further, according to the submission made by Sandra, Alfred was physically present at the bar with Tony and he had also submitted the fact that tony had suspiciously avoid the question regarding the authority of the keys of the locker. All these facts ensure his position that she is a vital witness regarding this case and his statements fall under the category of exception of the hearsay evidence.

Restrictions on Testimony and Competency of Witnesses

xxxiv. Apart from the previously mentioned witnesses, there are certain other witnesses. After considering the investigation report, it becomes quite clear to me that two experts who had stated their views related to this case. According to them, the brown paper, in which the alleged cocaine was present, was wrapped with an industrial tape. According to them, the quantity of drugs that had been found in the paper was good and it can be presumed that a drug peddler supplied the stuff. They have further observed it that part of the tape that is specifically known as the grizzled tape has been found in the place of Tony. Moreover, it has also been stated that Tony is suspected to pack the paper. However, the amount of tape found from the place of the accused is not enough to prove the fact that he had packed the paper and therefore, certain questions had come into the light regarding the admissibility of their statement. First, there are certain limitations in their statement. The Criminal procedure (Scotland) Act provides certain limitation to the powers of the experts, they are restricted to act as a fact finder, and they could not interfere into the fields that are particularly engaged with the judges or the jury. In addition to this, it can be stated that the experts are liable to reveal the facts that are particularly embedded with them and no one has any knowledge on the matter. Therefore, they are also restricted to give any statement regarding the fact where the other person has any knowledge.


xxxv. Expert evidence is required in this case as the nature of the case come under the shadow of the narcotic substances Act and it is also required to know about the category of the drugs found in the paper. These topics are basically outside the knowledge of general people and expert evidence is required in this case. According to the evidence collected from the expert, it has been found that the drugs found in the brown paper are laid under the “Category A” drugs as mentioned under the Misuse of Drugs Act. It has also been ensured by them that only the drug peddler can supply that amount of drugs. It is to be mentioned in this case that amount or quantity of drugs plays an important role and it is not possible for an ordinary man to evaluate the right amount of drugs. Therefore, the statements of the experts are quite reliable in this case.

Admissibility of Expert Testimony

xxxvi. It has further been observed by the experts that the tape that has been used for packaging the paper is of industrial in nature and they are used to secure the products from any outside interaction. According to the experts, certain amount of the tape has been found from the place of Tony. However, this could not be proved the fact that Tony is liable for that or he had wrapped the package.

xxxvii. In case of considering the admissibility of the expert evidence in this case, it is to be stated that the statements should be based on critical facts and corroborated with the other essential statements that can prove the relevancy of the examination done by the experts. However, it is the duty of the court to analyze the critical facts of the case. the court can ask the experts regarding their source or process by which it can be proved that who are the main culprit in this case.

xxxviii. Apart from all these things, it can be stated that there are certain loopholes in the statement made by the experts. The experts had failed to prove the fact that it was Tony Arnott, who had packaged the paper. Further, the tape found in Toni’s place is a part of the tape wrapped on the paper. Therefore, it has been observed that the findings made by the experts had failed to give answer of the questions.

xxxix. However, certain assumptions can be made after considering the statements of the experts. Tony can be held as the investor of the drugs or he can be regarded as the member of the chain. Further, Peter Dunn can be held as the supplier of the drugs. He can be acted as the medium in between the supplier and the receiver.

After considering the facts, one thing is very clear to me that the prosecution has much opportunity to succeed the case. Court is required to find out the critical facts and in that case, the court is required to analyze each of the particulars of the statement and best evidences. Further, it has been observed that there are certain possibilities, where it can be proved that both the accused are guilty of the offence. Therefore, the charges can be proceeded against them. The interview tapes are used as rhetoric device in this case that are quite admissible in nature. However, it is clear from the statement made by DC Bell that Tony had not accepted that he was present in the bar where he had met Alfred Fredricks. However, this statement has later on proved false and therefore, it can be presumed that certain vulnerability can be present in the part of the accused and this made the case more potential to this effect.

Corroborated Evidence and Crucial Facts in Scottish Criminal Law

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Lipkin Gorman v Karpnale Ltd [1987] 1 WLR 987

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