A Kangaroo in the Courtroom

"A prosecutor's duty to truth embraces a duty to make an independent evaluation of the credibility of his witnesses, the reliability of forensic evidence, and the truth of the defendant's guilt."
Bennett L. Gershman, The Prosecutor's Duty to Truth, 14 Geo. J. Legal Ethics 309 (2001)

Just as the improbable kangaroo appears to defy the laws of nature, so Sheriff Courts defy the laws of natural justice. In the topsy-turvy world of the Scottish Justice System, Kangaroo Court seems an appropriate description of its proceedings.
Here are some of the contrivances used by the System to hop around the law.

Independent witnesses

According to the Crown Office & Procurator Fiscal Service (COPFS), "An accused cannot be convicted unless there is evidence from at least two independent sources that the crime was committed and that the accused was responsible for it".
One might think that such a requirement would carry with it an obligation to make checks on witnesses who claim to be independent.
Not so - the authorities believe they have no such obligation.
In fact, there is no requirement to investigate any aspect of a crime. If the prosecution thinks it has a cut and dried case why would it bother looking for the truth?

Of the 3 motoring offences I was charged with, 2 made it to court on 2 March 2005 (the third was dropped, though 18 months were to elapse before I was officially informed of the fact).
The first, that of swerving into the path of a motorcycle at the Swallow Roundabout, was confirmed by 2 'witnesses': Russell Moir and Catherine MacGregor.
But these two were not independent 'witnesses' - they knew one another. Intimately.
If the COPFS had followed its own rule, this particular charge would have been struck off the record.
So why wasn't it dismissed? The answer must be that, despite appearances, the COFPS rule is not a hard and fast rule but one that can be ignored whenever it is expedient to do so.

The second charge, that of swerving into the path of a car after the Myrekirk Road roundabout, was confirmed by 3 'witnesses': the Complainant (Peter Carnegie) plus the two mentioned above. The former claimed not to know the latter, so fulfilling the independence requirement.
But the reality was not as clear cut as it seemed.
The 2 'witnesses' on the bike did not come forward independently: their details were given to Tayside Police by the Complainant.
So why didn't the Procurator Fiscal notice this and ask the police to undertake checks on her 'witnesses'?
To answer this I have imagined the prosecution solicitor's thought processes when she was assigned the case.
There is also this report on the surreal correspondence I had with the authorities on whether or not a witness has to be independent to corroborate evidence in court.

Disclosure

"The most basic thing in the world is providing the defence with the case against them."
Nazir Afzal (former Chief Crown Prosecutor for NW England), speaking to BBC News 27 January 2018

From the outset, the Scottish Justice System makes it obvious that despite the lip service paid to ‘presumption of innocence’, defendants actually have to prove their innocence. To do this, they need to know the case against them - well in advance of the trial. A handy way of stacking the deck in the prosecution’s favour is to hang on to the information for as long as possible - until just before the trial - and then to hand over only the barest minimum.
In 2009 William Beck (who was convicted of armed robbery in 1981) wrote that, "it was only after I was wrongly convicted did I see all the material my Solicitor held in connection with my case".
Lucky him. 12 years were to elapse before my solicitor's firm handed over my file. On examination, it was clear that they had received only the barest outline of the case against me: the Procurator Fiscal Depute knew far more than either the police statements or her own pre-trial telephone call to my solicitor revealed.
For example, when the Sheriff asked how my registration number had been recorded by the Complainant, I overheard her whispering to my solicitor: “Is it in dispute? He lost the bit of paper but found it later”.
Details of the case against me were thin on the ground. Two of the 'witnesses' refused to provide precognition statements. And their police statements were too brief and too inaccurate (for example, they got the location of one of the alleged incidents wrong) to be of much use to the defence.
Although a slightly more detailed Precognition Statement was provided by MacGregor, she failed to mention a crucial piece of evidence - a van, a white one, which was supposedly blocking the carriageway at the site of the alleged incident.

You can hardly mount a defence against accusations you know nothing about.

Disclosure in Scotland used to be done as a kind of favour, grudgingly, at the last possible moment before a trial.
There was no reason to reform such an effective way of chalking up convictions until a ruling by the Privy Council in London in May 2005 started a process of change. The Council said that after a case where the Crown failed to disclose a police statement that contradicted evidence given by a witness, all statements will have to be made available to the defence as a matter of course.
Since 2010, the Crown in Scotland has been required to carry out an assessment of the evidence and disclose all that is relevant as soon as practicable.
Even so, the Scottish Criminal Bar Association has said recently that: "There is a considerable problem with the implementation of the disclosure process...The difficulty is that Crown disclosure is routinely haphazard [and] sporadic...".
Personally, I would substitute ‘deliberately’ for ‘routinely’.”

Identification

Identification evidence in Summary Trials is usually uncontroversial, a formality undertaken at the start of a witness's evidence. Those cases where the identity of the accused is in doubt are often sent to a higher court and an identification parade may be held.
It can sometimes be difficult to see people inside a car with any clarity, particularly when the observer is moving and the glass is reflective, as it usually is.
With this in mind, plus my contention that one of the 'witnesses' was not actually present, I consider that my court identification ought to have been taken more seriously than it was.
The 'witnesses' were asked if they could see me in the courtroom.
Even when presented with the giveaway clue that I was the bloke standing in the dock flanked by two coppers, one 'witness' - MacGregor - had a lot of trouble identifying me.
This was my solicitor's chance to ask some pointed questions, but he said nothing. Nor did the Sheriff.
The Privy Council, in its 2005 judgement, recognised that a dock identification lacked the safeguards of an identification parade and said the risk of wrongful identification was increased by virtue of the accused being in the dock.
This was particularly so when the witness had not picked out the accused at an identification parade.
The impact of the Privy Council's views is that dock identifications should be rare.

No appeal

The Privy Council's 2005 judgements were made under Article 6 of the Human Rights Act - the right to a fair trial.
But there is no right to appeal enshrined in the Act. This is unfortunate because the Scottish judiciary actively discourages appeals.
Unlike in England, you cannot appeal on the evidence and demand a retrial.
It would be impossible anyway, because no written records are kept of Sheriff Court proceedings.
Under the Scottish system, you can only challenge the Sheriff's application of the law.
If you do manage to lodge your application in time (7 days is all you get*) it has to jump through a 3 stage system of hoops known as the Sift before it even gets to the Appeal Court.
And, if it does get through, there is always the tasty threat of an increased sentence to consider.

Update
*In 2016 a Sheriff Appeal Court was established. The time allowed to lodge an appeal was extended to 28 days.