FAULTS IN THE SCOTTISH SYSTEM OF JUSTICE.
There have been several major reforms in the English judicial system in the past fifteen years. Scotland however, has a separate system altogether - with different rules of evidence and different precedents on cases. Reform has come slow, though the obvious benefits of the changes in the English system have brought about some small changes.
Oddly, there is a myth that the Scottish system is better than the English system. English solicitors envy their Scots colleagues being able to interview policemen on the case before trial - using the system of "precognition". What's more, the forensic evidence they receive should be more reliable. Scots forensic experts always work in pairs - so the examination by one can be checked against the other.
The investigation of a case is overseen by a lawyer - the Procurator Fiscal. He and the investigators - the police - work to different masters. The popular image is of a Fiscal who personally supervises each case and decides whether a prosecution should proceed.
The Scottish system has supposedly safer rules of evidence. Any alleged "confession" must be supported by independent corroboration - otherwise the case cannot be tried. Furthermore, Scots juries can return a verdict of "not proven" when there is reasonable doubt - but some lingering suspicion. Many English lawyers believe that this allows the Procurator Fiscal to continue investigation against a suspect even when a case has not survived the test of the courts - not so.
Verdicts in Scotland can be reached on a simple majority of the fifteen person jury. Each individual jury member can therefore vote as he or she thinks right - without any undue persuasion in the jury room. They may do this from their own memory of the facts as presented, the judge does not have a duty to make a summing-up of the factual evidence as in English courts. Many do, but many do not.
That is, in part, the theory - but the Beattie case shows the sad state the Scottish system can fall into. One emerging suspicion is that the Scots continue to persecute him because they fear the consequences of a proper review of his case. It might well show them up - and their system.
Much of the case proving Beattie's innocence was in the post mortem - but the report presented to the defence was woefully inadequate. Although there were two pathologists, only one of them did the actual examination. The other wrote up the notes - a job that a trained secretary could have done instead of one of the nation's leading pathologists. As it was, those notes were vague on a key point - the contents of the victim's stomach. The system used by some English pathologists - and particularly their American colleagues - would have been far better - and less wasteful of manpower.
The police investigation of the murder was a mess. The team was ill-informed and uncoordinated. Beattie was given a 'guided tour' of the scene of crime by two officers. He was then accused of the murder by two other detectives because he told them details of the scene of crime which they thought were known only to the police!
Beattie actually knew details that even the murderer could not have known. Even though we have seen some outrageous behaviour in English Constabularies, it is hard to imagine that such a stupid error could occur there.
Beattie was interrogated until he vomited. He then told a desperately ridiculous tale that he had seen men with top hats with mirrors doing the murder. His description of these 'murderers' was actually based on the outfits of a well-known pop group, "Slade" that he had seen on TV on the evening of the murder. Yet no one in the court made the connection.
The judge compounded the error - he allowed this ridiculous admission to go to the jury because it was "capable of being a confession". No statement of this nature would be so regarded in an English court.
The famed Procurator Fiscal took no part in any of this. In murder cases they have little say. Beattie was taken down to the scene of crime without a solicitor - and after being charged he was persuaded to put himself into greater jeopardy. The officers doing this must have passed by the Fiscal's house in Lanark - but no one brought him into the case. In fact the Procurator Fiscal did not believe Beattie to be guilty. However, his role was little more than a postman between the police and the Crown Office in Edinburgh.
Beattie never confessed to the crime, but "corroboration" of his admission was produced in the form of a tiny speck of blood on a tissue handkerchief. It matched some of the victim's blood groups - but was also common to about half the local population. Even the provenance of this tissue, apparently from Beattie's pocket, was suspect. The jury was allowed to decide whether this could be 'capable of being corroboration'.
They thought it could. The truth was that it could never be corroboration. But that important truth did not emerge because vital prosecution evidence had not been disclosed. Evidence that the blood on the tissue was definitely not that of the victim was deliberately withheld from the defence - and never reached the court or the jury!
How could Beattie's solicitor allow the case to get to such a state - particularly when he had the power to take 'precognitions' from the prosecution witnesses, including the police witnesses, before the trial?
In fact the power of "precognition" is illusory. Witnesses can refuse to give precognitions - they can avoid them, they can be obtuse in them. They can even get away with lying in them. In the Beattie case one officer's precognition was directly contrary to his evidence in court - but Defence was not allowed, by law, to use the evidence of the precognition against him in court.
The key witness, the police officer who headed up the investigation, Chief Superintendent William Muncie, avoided giving a precognition altogether. In theory the defence solicitor could have obtained a warrant from the Sheriff Court to take the precognition on oath. In fact he would have had to provide such strength of evidence to show 'just cause' both to the Sheriff and to the Legal Aid Board that the reality of obtaining such a statement did not exist.
So, far from being able to test the evidence before it came to court, Beattie's lawyers actually went into the trial with very little idea of what the prosecution witnesses might say. In England they would at least have had the police statements - which cannot be especially framed to mislead the defence. In America they would have had depositions or grand jury evidence.
Beattie's lawyers were duped. Chief Superintendent Muncie, was guilty of not disclosing evidence and of contempt of court. During the trial he implied that a particular knife had blood on it when no blood had been found. He implied it was the murder weapon when he knew it was not. He instructed one of his officers to cover up the existence of a notebook that could have cleared Beattie. Perhaps he would not get away with it so readily in Scotland today - but the Scottish Appeal Court is still not likely to take such evidence of past misconduct into account as the current English Court of Appeal would.
Although George Beattie was framed, lied against, cheated and mistreated, he stayed in jail - even when all this was revealed.
Scotland has no general rule of disclosure of evidence at all. The reality is, and will no doubt remain, that prosecution in Scotland give only what they think is "proper" - out of simple charity. Defence is frequently left in the dark - and deceived as in the case of George Beattie.
Even non-disclosure of evidence which could prove the innocence of the accused will not be regarded by either the Crown Office or the Appeal Court in Scotland as grounds for a fresh look at the case. At Beattie's appeal in 1994 a vital forensic science document on serology was discovered. Chief Inspector Muncie had covered it up two twenty years before. The skullduggery involved in this was passed over without comment.
The Department of Public Prosecutions in England would not take such a view. Nor would the English Court of Appeal - nor any American Court of Appeal. . That the undisclosed serology evidence in the Beattie case was capable of actually proving his innocence makes the contrast between the two systems even more sharp.
The jury took just 35 minutes to find Beattie guilty - and the rumour emanating from the room was that it was on a 7 - 8 majority. An English jury, under less pressure to jump to a rash decision, might well have worked out over several hours of discussion that there was something badly wrong at the heart of the prosecution case. No doubt some jurors now repent at leisure over the fate of George Beattie. American jurors may well have told us why such a decision was formed. Scottish jurors can hide their shame beneath their anonymity.
The Scottish jury had heard a summing up from the judge. This judge decided to sum up the facts - as in an English court. But he did not clarify what he must have known - that the main police witness on the case had misled the jury on an important matter of fact concerning the supposed murder weapon. Most of the summing up was devoted to major questions of law - the judge did not mention such minor points of evidence as supposed murder weapons. His summing-up gave Beattie less protection than he would have in other legal systems.
He mentioned a 'not proven' verdict twice - but gave the jury no idea of the level of evidence which would merit such a verdict. The perverse decision of the jury in the Beattie case may have been reached because they did not understand the system they were operating within.
The case for Beattie's innocence does not rest on the failures of the Scottish system to give him justice. There is ample evidence ( from prosecution witnesses!) that the victim was murdered several hours later - when Beattie was completely alibied. Someone got away with murder.
With all the many faults in the investigation, the trial and the appeal, the Beattie case stands as an indictment of the entire Scottish system - particularly because that system cannot bring itself to correct even this most obvious miscarriage of justice.
The errors and cover-ups go even further. The offices of both the Solicitor General for Scotland and the Crown Agent have at different times issued misleading information about the case which have caused some 15 years delay in dealing with the matter. There is an air of self-defence and vindictiveness in the air. Now they refuse to follow-up the vital new evidence in the policeman's notebook.
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