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Big Wullie · Joined: 25 Apr 2007 Posts: 1149 Location: Glasgow

http://thescotsman.scotsman.com/s...rder-conviction-appeal.4730793.jp

Man wins murder conviction appeal

A MAN found guilty of stabbing a teenage boy to death in a school playground yesterday had his murder conviction overturned.
Derek Ferguson, 26, was jailed for the knife attack on Steven Pettigrew, 16, in April 2005 after being released early from prison.

He was ordered to serve at least 18 years in prison in December 2005 after being found guilty of murdering the teenager at the school in Airdrie, Lanarkshire.

But judges yesterday ruled that there had been a miscarriage of justice as the trial judge did not give the jury the option of returning the lesser verdict of culpable homicide.

The Crown can now seek a fresh prosecution or an attempt could be made to reduce the conviction from one of murder to culpable homicide.

At the Appeal Court in Edinburgh, Lord Osborne said: "We conclude that the omission of the trial judge to give a direction in relation to culpable homicide was a material misdirection resulting in a miscarriage of justice."

At the trial in 2005, the High Court in Edinburgh heard the attack happened on 1 April that year, after a late-night row in a hut at the school playground.

Steven Pettigrew had gathered with friends to drink and listen to music but was assaulted and suffered a deep stab wound to his back. The teenager died later in hospital.

Ferguson, who denied murder, had been released early from prison at the time of the attack. He was jailed for eight years for an axe attack in 1999, but was freed in 2004.

Two of Ferguson's cousins, James McCormick and Gary Black, were convicted for their involvement in the assault on Steven Pettigrew.

W.Roughead · Joined: 25 Oct 2008 Posts: 120 Location: Scotland.

This is the Judgement.

http://www.scotcourts.gov.uk/opinions/2008HCJAC71.html
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“Send not to know for whom the bell tolls – it tolls for thee.” John Donne.

Fiscal · Joined: 23 Dec 2008 Posts: 111 Location: Edinburgh

I don't get your point of this Judgement.....

I can only assume that you are disaproving of it, please correct me if I'm wrong.

Having drawn this inference I would point out that although many would take the view that it would be ridiculous for this to happen - these people I assume are not legally educated and would be unaware that this outcome would be the apporpriate one in law following the error on the part of the trial judge. On that note, we are all too quick to criticise and comment on the failures of others, especially those in positions of high status, and of superior importance. Don't we all make mistakes????
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Mr Fiscal

Angeline · Joined: 02 Oct 2008 Posts: 148

W.Roughead · Joined: 25 Oct 2008 Posts: 120 Location: Scotland.

I have to agree with “Fiscal” on this. Although some may think this result inappropriate. In Law, it is not. The trial Judge did indeed make an error by not informing the jury of the option for Culpable Homicide, hence this result.

There is a huge difference in law between Murder and Culpable Homicide in Scots Law.
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“Send not to know for whom the bell tolls – it tolls for thee.” John Donne.

Fiscal · Joined: 23 Dec 2008 Posts: 111 Location: Edinburgh

FAO: Angeline

From your comments I understand that you therefore agree with my point, we all make mistakes. For someone that is not legally educated you certainy offer knowledge on a range of legal issues. Very briefly, in the Scots Law of Evidence, in civil proceedings either party can lead evidence which is not corroborated and that of hearsay and the standard of proof is on the balance of probabilities. However, in criminal proceedings the onus proof is on the crown and it is their overarching duty to prove the case beyond reasonable doubt by way of corroborated evidence. There is no onus or burden resting with the accused except when the complete defence of insanity and the partial defence of diminished responsibility is lodged and in these scenarios they need only prove the special defence on the balance of probabilties - the authority for this is the case of Lambie v Her Majesty's Advocate. In this case neither of these special defences were lodged therefore no duty on accused to prove anything.

The accused can make any suggestions s/he likes and does not have to prove any statement they make - therefore no need for them to corroborate their evidence.

The people I refer to as Superior Importance are their noble lordships and ladyships and yes by way of definition they are public servants they are however the leaders of my profession and I respect their status as being superior accordingly.

Secondly, the Judge is simply the referee the "judge of the law" the jury are the "judges of the facts" and it is for them to decide on the evidence they hear if it is murder or culpable homicide - so your understanding is wrong.

The consistency of the judiciary is under scrutiny at the moment but the law is the law is the law and anything that is statutory should be interepreted the same way in all courts in accordance with "Judicial Knowledge" this is the "knowledge" of the court - every court - not the personal knowledge of the Judge/Sheriff/Justice. The appeal court are consistent with their decisions a lot of the time as there is at least 3 judges hearing the appeal. I would be careful about making such criticisms without sufficient experience/knowledge to back it up.

FAO: W. Roughead

Thank you, many of the lieges and indeed professional colleagues forget that we all make mistakes - although this is quite a serious one in all fairness but these things happen.
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Mr Fiscal

Angeline · Joined: 02 Oct 2008 Posts: 148

"The people I refer to as Superior Importance are their noble lordships and ladyships and yes by way of definition they are public servants they are however the leaders of my profession and I respect their status as being superior accordingly."

It is precisely this unquestioning deference to "experts" which has caused so many injustices - from those in the legal profession to medicine, forensic science, geology - you name it, the leading lights in many professions can, and do, get it wrong. Whilst anyone can make mistakes, their mistakes are arguably more serious, since people's lives and liberty are at stake. Yet they are shielded from the consequences of their mistakes - judges, in particular, are answerable to no-one except their own - as you stated in another post, since they "naturally" take the side of their colleagues, "mistakes" by them are more difficult to uncover and rectify.

"The consistency of the judiciary is under scrutiny at the moment but the law is the law is the law and anything that is statutory should be interepreted the same way in all courts in accordance with "Judicial Knowledge" this is the "knowledge" of the court - every court - not the personal knowledge of the Judge/Sheriff/Justice. "

Thank you, you make my point perfectly. We all know what should be happening - forums like this exist because, in many cases, it is not happening as it should. As for "the law is the law is the law," that may be your opinion, but for many of us, it is "the law" itself which needs to be reformed.

"The appeal court are consistent with their decisions a lot of the time as there is at least 3 judges hearing the appeal. I would be careful about making such criticisms without sufficient experience/knowledge to back it up."

Indeed they are - to the tune of approximately 4000 successful appeals per year in England and Wales, for example. But that only tells us that the courts got it wrong 4000 times in the first place.

It doesn't cover the dozens of cases I've seen where judges are mistaking personal opinion for fact, or making judgements which are inconsistent with (or even contrary to) the facts before them.

I think you will find that I stated concerns about inconsistency. I feel no need to be "careful" about stating concerns - or even, in fact, criticisms. If my understandings are wrong, that is one way I can learn and improve my understanding. Where else does one get "sufficient experience/understanding?"

For the record, it is my belief, in a so-called democracy, that ordinary people have the right to question anything and everything done on their behalf by public servants, and to have those questions answered satisfactorily. You could say, I don't do deference!
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As long as one heart still holds on, then hope will never really be gone

W.Roughead · Joined: 25 Oct 2008 Posts: 120 Location: Scotland.

Angeline · Joined: 02 Oct 2008 Posts: 148

Apologies - my misunderstanding. I thought we were discussing justice and injustice generally.

Your figures for Scotland (even taken at face value) are interesting though - still amounts to more than 2000 "mistakes" in the first instance.

I think it's quite enlightening to have comparisons with other places - it does raise the question of systemic problems with justice systems run along similar lines.

In these days of Information Technology and globalisation, I'd be of the opinion that we can no longer afford to be "not interested" in what's happening elsewhere, as it's all likely to have some influence or impact on what's happening here.

Just my opinion, of course.
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As long as one heart still holds on, then hope will never really be gone

Big Wullie · Joined: 25 Apr 2007 Posts: 1149 Location: Glasgow

My understanding is that we are now part of the EU therefore any part of the EU Law can be applied anywhere in the UK never mind just being limited to Scotland, England or Wales.

It is to be noted that as well as English case law Irish case law can also be referred to in Scotland and has been in the Lockerbie case.

Therefore it does matter what is happening in England & Wales etc.

Fiscal to quote you here: