The Scots Law Student

The SLS : Life and trials of learning law in Scotland

Tag: jury

Should a jury know what “balance of probabilities” means?

Robertson v HMA was a criminal appeal in April following a conviction of having a knife in a public place without reasonable excuse or lawful authority which centred on the direction of juries.

I think this case is a fantastic example of just saying too much to the police:

[3] The appellant was detained by the police officers in a car park in Musselburgh at the rear of the premises of a veterinary surgeon. At that time the appellant was standing in the car park smoking a cigarette. He had a carrier bag in which there was a golf club.

[4] When the police officers asked the appellant to empty his pockets, he produced from the inside pocket of his jacket a double-edged serrated knife.

[5] The appellant told the officers that he had borrowed the knife from his mother when he had moved house some weeks before, and was now on his way to her house to return it. After leaving his home he had interrupted his journey for some golf practice. He had his dog with him. Then he had gone to the vet for advice about his dog. He had tethered the dog outside. When he came back from the bet, the dog had gone.

The section involved (section 49 Criminal Law (Consolidation) (Scotland) Act 1995) says:

(4) It shall be a defence for a person charged with an offence under subsection (1) above to show that the person had a reasonable excuse or lawful authority for having the article with him in the public place.

and the standard of proof for showing that is the balance of probabilities. Some fantastically colourful reasonable excuses have been tried in Scottish courts since this defence was created.

My feeling on this one is that had he stopped after “on his way to her house to return it” that would be a perfectly reasonable excuse for carrying a knife. Going on to say he stopped to play golf and go to the vet (and why didn’t he take the dog into the vet?) starts to stretch credulity. Given the sketchy story I suspect the jury might well have got it right.

The main legal point is that Agar v HMA (2000) is very, very strong HCJ authority that “the balance of probabilities” is a phrase containing “plain English words” which juries don’t need special direction to understand. In the face of that there’s not much room for debate as a ground of appeal and that’s what happens to this case.

I don’t think it’s as straight forward as that, though, and I think lay people might well appreciate a quick “more likely than not” nod to help them there. Balance of probabilities is a very familar legal term for lawyers but it is a term of art and, to add to the confusion, is used differently in other fields. For one, in genetics it involves combining mathematical probabilties to come up with a numerical probability.

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Ian Tomlinson – unlawfully killed

I’m currently working very hard for final exams so I’m just making a short update.

Yesterday an inquest jury unanimously found Constable Simon Harwood’s actions surrounding Ian Tomlinson’s death to be unlawful, reported in the Scotsman as “saying he ‘deliberately and intentionally’ shoved the newspaper seller to the ground. He was found to have acted illegally, recklessly and dangerously, and used ‘excessive and unreasonable’ force in hitting the man with a baton.”

They also request a thorough review of the CPS decision not to prosecute, which makes sense given that an entire lay jury agreed the actions were wrong.

In background news the Press Gazette published a report from Paul Lewis, the journalist who tracked down the eyewitness accounts and video of Ian Tomlinson being shoved to the ground, headlined “Met told us to ‘lay off’ Tomlinson story” which just doesn’t cover them in glory as an organisation.

I hope this judgment goes some way to getting the police out of this mess and that some lessons are learned for the future. There’s no need to lean on journalists to lay off stories and throw away evidence.

H/T: The Scotsman

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Student Law Review

I dropped by my law school this week on the way to the library and picked up a copy of the current student law magazines while I was there.

The Student Law Review, published by Routledge Cavendish is a publication bordering on the “terrifyingly polished” and I find it to be a very interesting read that I try to pick up whenever I can.

I’ve done a quick and rough digest of the contents of this edition, and it’s a very, very long post so I’ve added it after the break. I will be back later to fact check but right now I’m just impressed at myself for getting this typed up. These are in no way the whole articles, or indeed perfect outlines of the articles themselves, I was more interested in putting out what the publication covers instead of violating the copyright on the articles themselves:

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