by WHS McIntyre
Anyone whose knowledge of criminal trials is based on TV courtroom dramas or crime thrillers will be well used to the surprise witnesses and other evidential bombshells that are sprung on an unsuspecting prosecution and which, accompanied by gasps of shock from the assembled jurors, invariably lead to an acquittal. It all makes for excellent television. It also makes real lawyers laugh.
There had been a day, way back in the mists of history, long before I first put on a black gown, sometime around the time the oceans drank Atlantis and the last hike in Legal Aid rates, when it had been perfectly feasible to ambush the Crown. An unheralded attack on the validity of some vital piece of evidence or highlighting of a procedural error by the police or Procurator Fiscal, was commonplace mid-trial, and it was not unusual for someone to take a walk from the dock on what the newspapers liked to call ‘a technicality.’
Recently, however, there had been a change in the law requiring the defence to tell the Crown, before the trial, of any errors it had discovered in the prosecution case. This was done by raising what was known as a preliminary issue. Understandably, the Crown found this extremely helpful, allowing as it did the remedy of any awkward, defence-favouring blunders before the jury got to hear about them.
‘You’re challenging the search?’ Ogilvie waved the Minute at me. ‘You haven’t exactly gone overboard on detail, have you?’ He was right about that. The real art in drafting a preliminary issue was to fulfil one’s statutory obligation to provide notice, while giving the opposition as little clue as possible to what it was really all about and, hence, no time to prepare a counter-argument.
‘This vague nonsense is just a stalling tactic. You’re looking for an excuse to delay the trial, aren’t you?’
If he expected me to answer, he was going to be disappointed. I wasn’t about to tell him the basis of my challenge to the admissibility of the search evidence. He’d learn that soon enough.
Gail arrived seconds before the start of court. She had her own sheet of paper with her. An affidavit signed by her client that, once handed to the PF, would guarantee the acceptance of her guilty plea to the lesser charge of possession. By agreeing to testify against Antonia, Gail’s client’s reward would be the saving of her career. Some people settled for thirty pieces of silver.
I stepped in front of Gail as she tried to walk past me and go around the big table in the well of the court to where Hugh Ogilvie was seated.
‘I’ve something for you,’ I said, giving her an intimation copy of my Minute.
‘Ooh, Robbie, a section seventy-one Minute, and look, it’s raising a preliminary issue. It’s not like you to get bogged down with unnecessary stuff - like the law. What are you challenging, the flammability of the Crown witnesses’ underwear?’
‘Tell your client to maintain her plea of not guilty,’ I said.
She pinched my cheek and gave it a waggle. ‘No, Robbie, I won’t do that. I can understand why you’d prefer a two-pronged attack on the Crown case but, sadly, my client is not prepared to take that risk.’ Gail placed a hand on each of my arms and moved me to the side. ‘Sorry you didn’t get a deal, but what’s bad news for your client is, I’m pleased to say, good news for mine.’
‘I’m challenging the search,’ I said. ‘No search, no drugs; no drugs, no case to answer.’
‘Yes, thanks, Robbie, I know how evidence works; however, I can detect one tiny flaw in your plan.’
‘What’s that?’
‘It’s crap.’ She pushed past me.
‘Seriously, Gail—’
‘Nope. My client wants the case over and done with. She’s not going along with any scheme of yours to drag things out in the hope that tomorrow will be a better day.’
Gail and I were friends. I’d tried to help. I didn’t see what more I could do. She had her client to look out for, I had mine.
Ogilvie took the affidavit from her. ‘If you won’t listen to me, listen to Miss Paton,’ he said. ‘You’re not seriously going ahead with this preliminary issue thing, are you? It’s a blatant attempt to delay proceedings and if you try to move for an adjournment, I’m going to have to strongly object.’
The Sheriff came on. I hadn’t come across her before in my travels. The merest hint of eye shadow and smudge of red lipstick, she was no more than forty-five, with long, dark hair descending from beneath a snowy-white horsehair wig to the shoulders of her pristine black robes. I guessed she’d been recently appointed and allocated Antonia Brechin’s trial to avoid any suggestion of partiality that might have followed had one of the other local sheriffs or a contemporary of Sheriff Brechin been asked to preside.
Everyone stood. The Sheriff bowed and sat down. Eleanor, the Sheriff Clerk, announced to the public that this was a court of First Diet and called the first case. ‘Her Majesty’s Advocate against Antonia Alberta Brechin and Emily Leigh Harris.’
The two young women took the dock. Antonia was dressed plainly in a cream blouse and dark skirt. Frizzy-haired Emily, whose hair was not quite so frizzy today, wore a light summer frock. Pretty and demure, they both looked like butter wouldn’t melt in their mouths, far less cocaine dissolve up their noses.
I stood and confirmed my client’s plea of not guilty. ‘As your ladyship will see, I have a preliminary issue I’d like to draw to the court’s attention.’
‘And are you seeking an evidential hearing on it?’
‘I am.’
The Sheriff looked down at Eleanor. ‘There seems to be quite a busy morning ahead, Sheriff Clerk. What days do we have available before the trial for a hearing on Mr Munro’s Minute?’ Before Eleanor could answer, Hugh Ogilvie was on his feet. ‘M’Lady, this Minute is, in my opinion, a delaying tactic by the defence. If Mr Munro is so keen on it, then why don’t we hold the hearing this afternoon.’
The Sheriff didn’t seem terribly enthusiastic about that suggestion, but then all sheriffs hated afternoons. It was almost as though judging things after lunch wasn’t part of their job description.
‘Very well,’ she said, with a sigh. ‘I trust it won’t take too long.’
‘Not long at all,’ I said.
I sat down, Gail stood up. ‘M’Lady, I appear for the second-named accused. You’ll find that she is now pleading . . .’ Gail looked down at me. ‘You’re not asking for an adjournment?’
I smiled and shook my head.
‘And you’re going ahead with this preliminary issue thing this afternoon?’
I smiled and nodded my head.
Gail studied me for a moment and then in turn looked to the PF, to her client and back up at the bench. ‘My client is pleading not guilty, M’Lady.’
‘No, I’m pleading guilty!’ Crinkly-hair called from the dock.
‘I think your client wishes to give you some new instructions, Miss Paton,’ the Sheriff said.
Coolly, Gail walked around the table, lifted her client’s affidavit from the top of Hugh Ogilvie’s pile of papers and tore it once, straight down the middle, all the time staring at me. ‘No, M’Lady, she doesn’t.’
52
Hearings on preliminary issues were dealt with by the sheriff in the absence of a jury.
The first witness to be called was Detective Inspector Douglas Fleming. He had been sitting in Police HQ, catching up on his foot-dangling, when unexpectedly summoned to take the stand, and was none too happy about it. After the oath had been administered, I rose to question him.
‘Please have before you Crown production one,’ I said. ‘Do you recognise that?’
‘Yes.’
‘What is it?’
‘It’s a warrant.’
‘Could you tell me the procedure for obtaining a search warrant?’
‘That depends on the type of warrant.’
Sometimes I thought I should have been a dentist.
‘Let’s assume Mr Munro is talking about the search warrant you have in your hand, Inspector,’ the Sheriff said, already sensing the witness’s lack of motivation. ‘It’s seeking
authority to search premises for illegal drugs, is it not?’
Fleming gave the two-page document the briefest of glances. ‘So it would seem.’
‘And would it also seem to have been signed by you, Inspector Fleming?’ I asked.
‘That’s correct.’
‘Would you be so good as to talk us through the procedure for obtaining this warrant, please?’
Ogilvie climbed to his feet. ‘Is this really necessary? I’m sure the Inspector seeks warrants all the time. I don’t know how he’s supposed to remember them all.’
‘Nonetheless, I’d like Inspector Fleming to explain the procedure,’ I told the Sheriff.
Ogilvie was out of his seat again. ‘M’Lady, everyone is well aware of the procedure. We are all lawyers, after all . . .’ He smiled. ‘Even the accused.’
The Sheriff looked at me enquiringly.
‘If your Ladyship would indulge me.’
Generally speaking, sheriffs just want whatever is calling before them to be over and done with as quickly as possible. This particular sheriff had come to the conclusion that engaging in a debate with me and the PF over my question would take longer than just having the witness answer it.
Fleming released an enormous sigh when told to proceed. ‘First of all, a police officer—’
‘And in this case that police officer was you?’ I said.
‘Yes. That’s correct. The police officer was me. I’ve already said so. That’s my signature beside Sheriff Brechin’s on the warrant. I’d have contacted the on-call Procurator Fiscal to say I needed a search warrant. They’d have drafted the petition for me - that’s the first page . . .’ Fleming’s voice was now monotone and bordering on the impertinent. ‘I’d have collected it, called in at the Sheriff Clerk’s office and been shown up to the Sheriff’s chambers.’
‘Carry on,’ I said.
‘Next I would have presented the petition to the Sheriff, advised him of my suspicions—’
‘Under oath?’
‘Yes, I would have sworn an oath, explained the reasons for the search and we’d both have signed.’
‘Did the Sheriff date the warrant?’
‘He did.’
‘And the date is very important with a drugs search warrant, is it not?’
‘It is.’
‘Why is that?’
‘Because the search has to be carried out within one month.’
‘And when was this warrant granted?’
Fleming checked. ‘Twenty-seventh April this year.’
‘And on what date was the search actually carried out?’ Fleming received permission from the bench to refer to his notebook. ‘The first of May.’ He snapped the notebook shut and shoved it inside his jacket.
‘How certain are you of that search date?’
Fleming tapped the breast of his jacket. ‘I have it noted right here.’ He turned his head to look at Antonia who was sitting in the dock, ashen faced. ‘I remember the first of May very well. I’m sure it’s a date that sticks in your client’s memory too.’
The first of May was a date that stuck in a lot of people’s memories, boyfriend-slapping Heather Somerville’s included.
Ogilvie made a show of looking at his watch.
‘M’Lady, time is marching on and Mr Munro hasn’t led the Inspector to the premises yet, far less searched them.’
The Sheriff stared down at me. ‘Obviously, it’s been interesting to be reminded how one goes about obtaining a search warrant, Mr Munro, but I think we should cut to the chase.’ She looked up at the clock on the far wall of the courtroom. ‘I understand you have another witness still to call. How much longer do you expect to be with Inspector Fleming?’
‘Thank you, M’Lady, I’m finished with this witness,’ I said.
As I sat down beside Gail Paton she leaned into me and whispered, ‘Devastating stuff, Robbie. Any chance you could tell me what the hell is going on?’
I couldn’t. Not yet.
Hugh Ogilvie saw no need to cross-examine, and so I was asked to call my second and final witness.
‘What’s the name of your witness, Mr Munro?’ the Sheriff asked, pen poised over notepad.
‘Sheriff Albert Brechin,’ I said.
Gail grabbed her nose between thumb and forefinger and failed to stifle a snort.
Ogilvie jumped to his feet, the blue worm of a vein proud on his scarlet scalp. ‘This is outrageous.’
‘Explain yourself,’ the Sheriff said.
‘Like it says in the Minute, I’m challenging the search. Perhaps I should have been more specific and said I was challenging the search warrant. It was signed by two people. Inspector Fleming was one, Sheriff Brechin the other.’
The Sheriff took time to think that over, then spoke down to the clerk. ‘Is Sheriff Brechin available?’
I knew he was. He was rattling through the custody court next door so that he could come in and watch his granddaughter’s case. Well, he was about to get a closer view of proceedings than he’d expected.
53
Sheriff Brechin took the stand having removed gown and wig but still clad in his blacks. A white fall spilled over the brass collar stud of his wing-collared shirt and onto the top buttons of his waistcoat. He took the oath without the need for the presiding sheriff to recite it, and, when given the nod, I stood and asked him to provide his name, address, age and occupation.
‘You know perfectly well who I am, where I live and what I do for a living, Mr Munro. How old I am is none of your business. Get on with it.’
Clearly he wasn’t going to let a minor matter, like the fact that I was representing the interests of his granddaughter, mellow his usual hostile attitude towards me. He was only making the whole thing more fun.
‘Do you recognise this?’ I asked, lifting production one from the ledge of the witness box and holding it up to him.
‘It’s a search warrant by the looks of things,’ he said.
‘Very good. Now, I wonder if you could talk us through—’
Ogilvie leapt out of his seat to address the Bench. ‘M’Lady, I think we are now all very familiar, if we weren’t already, with the procedure for obtaining a drugs search warrant.’ If he looked at his watch again, he would wear the face of it. ‘I’m inviting your Ladyship—’
‘I’m way ahead of you, Procurator Fiscal,’ the Sheriff said. ‘Mr Munro, get on with it. We know the procedure for granting a search warrant. Move along.’
‘Sheriff Brechin, do you see two signatures on this warrant?’
From a waistcoat pocket, Brechin produced the pair of half-moons that every sheriff seemed to come supplied with along with a horsehair wig and an air of superiority. He lifted the document to eye level. ‘Yes, I see two signatures.’
‘Inspector Fleming has told us that one is his and the other yours.’
‘It would seem so,’ Brechin said, setting the warrant down and tucking his spectacles away in his waistcoat pocket again.
‘Detective Inspector Fleming told us that he’d sworn an oath, told you his suspicions for obtaining a warrant and then you both signed.’
‘Is that a question?’ Ogilvie was spending nearly as much time on his feet as I was.
‘Perhaps we’d find out, if you stopped objecting and let Mr Munro get to the point,’ the Sheriff replied.
‘If there is a point,’ Ogilvie muttered under his breath, so quietly that there may have been some people in the courtroom next door who didn’t quite catch it.
Her ladyship looked down sympathetically at the witness and then at me. ‘Do we need to delay Sheriff Brechin any longer, Mr Munro?’
Indeed we did.
‘Sheriff Brechin, there are certain laws and procedures governing the granting of a warrant are there not?’
‘Patently so.’
‘And these must be followed?’
Hugh Ogilvie and the lady sheriff sighed simultaneously.
‘It’s not as though,’ I said, ‘you keep a stash of pre-signed wa
rrants on your desk to dish out to any old copper who swings by, looking to turn over somebody’s flat on a fishing expedition – is it?’
Eleanor Hammond, the clerk who had been listening intently, suddenly found something on her computer monitor that required her immediate and undivided attention.
‘Mr Munro, that’s quite enough,’ said the Sheriff. ‘Remember where you are and whom you are addressing.’
I picked up the warrant, flipped it over to the second page and handed it to Brechin. ‘Tell me. On what date did you sign this?’
Hugh Ogilvie bounced to his feet. ‘M’Lady, we’ve already heard the date of signing was the twenty-seventh of April. It’s written right there on the warrant.’
The woman in the wig did not reply to Ogilvie’s objection. Clearly sensing something, she leaned forward, arms folded on the bench in front of her, forehead furrowed. ‘Continue, Mr Munro.’
As the Procurator Fiscal took his seat again, I poked the search warrant at Brechin. ‘Read and tell me the date that you put Detective Inspector Fleming under oath and granted him this search warrant.’
I heard the sound of someone in the public benches stand up and leave the courtroom. I didn’t have to take my eyes off the witness to know it was Dougie Fleming.
‘I’m afraid the handwriting’s not very clear.’
‘It’s a date and your signature, I’m not asking you to translate the Dead Sea scrolls,’ I said.
‘That’s enough, Mr Munro.’ The lady Sheriff looked down at the witness and he gazed up at her, appealingly, seeking the sort of mercy so many had sought from him in the past.
‘Please answer the question,’ she said, coldly.
Holding the warrant in his right hand, Brechin patted himself with his left. ‘I’m sorry, I’m not sure what I’ve done with my glasses.’
‘Maybe you’d rather use binoculars,’ I said. ‘I believe you keep a pair for birdwatching. How was Madeira?’
Sun Tzu, author of The Art of War, advises that one should always leave the enemy a golden bridge over which to retreat. The art of cross-examination is no different; except the bridge one lays for a witness to retreat across should always lead to exactly where the cross-examiner wants the witness to end up.
