PS, who makes the decision about what is "in the public interest?"
Serious question - I really don't know the answer, although I thought that was left to a combination of judge/government?
Is it not "in the public interest" to maintain (a) the presumption of innocence and (b) the right to a defence against the might of the state? _________________ As long as one heart still holds on, then hope will never really be gone
Firstly, you're right in law an accused is presumed innocent until proven guilty. However, any person who is the recipient of an admission (whatever their capacity, in law becomes a witness) Solicitors are not there at all to get guilty people off they are there to see justice served like every other officer of the court. Donald Findlay even echoed this in his speech at the Vicky Hamilton trial - I was in court when he said it.
The confidentiality agreement is in terms of the Solicitors (Scotland) Act if a client makes a confession the solicitor is duty bound not to advise them to plead not guilty.....that is a miscarriage of justice. Solicitors would advise clients not to make incriminating statements....but if the client chooses to ignore that then it is their issue. What would be the point in a justice system that allowed GUILTY people to be acquitted? Many of your argue that the system is flawed for allowing INNOCENT people to be convicted of things they have not down - equally I think it would be ludicrous to allow genuinely guilty people to be acquitted. Solicitors (whether prosecutors or defence agents) and Advocates are all Officers of the Court and are all there to see justice served.....and would not tolerate getting a guilty person off.
In terms of prosecution, the Depute marking the case decides what is in the public interest. It is a Law Society Guideline that if a client makes a confession it is then in the public interest to disclose that. Corroboration would not be there - you're correct but there is ways around corroboration. An example is if an accused makes a confession and provides something called specialist knowledge information (something only the perpetrator would know) then that is sufficient to corroborate the statement.
Once I get onto my own laptop - I'll send you an excerpt of a crown speech I made in a case...which explains it with the relevant authority. _________________ Mr Fiscal
Here's an excerpt from a closing submission I made....
"As your ladyship is aware, the burden of proof lies with the crown to prove its case beyond all reasonable doubt, not that the case has to be proven to a mathematical certainty.
The court has heard from two witnesses that the accused was heard to say.... Lord Justice Clerk Thomson in Sinclair v Clark at 62 held "There is a rule in our law, that short of a solemn plea of guilt, an admission of guilt by an accused is not conclusive against him, unless it is corroborated by something beyond the actual admission." However;
The accused provided ..... with specialist knowledge information relating to the cause of ... by providing the officer with details of the locus, how ..... and what articles were used to cause this. I suggest this is the “something” beyond the actual admission which is required. Furthermore, Lord Dunpark in Hartley v HMA held "The standard of corroboration of an unequivocal confession of guilt is, in my opinion, different from the standard to be applied when seeking corroboration of a Crown witness. The reason for the different standard is that, unlike such other evidence, the confession of guilt by an accused person is prejudicial to his own interests and may, therefore, initially be assumed to be true. Accordingly, one is not then looking for extrinsic evidence which is more consistent with his guilt than his innocence, but for extrinsic evidence which is consistent with his confession of guilt. If, therefore, a jury is satisfied that a confession of guilt is freely made and unequivocal in its terms, corroboration of that confession may be found in evidence from another source or other sources which point to the truth of the confession." The accused divulged specialist knowledge information, consistent with the scenario discovered at the locus. Again, she was heard to say ..... Furthermore it was held in Annan v Bain that specialist knowledge information was sufficient corroboration. _________________ Mr Fiscal
The following article shows that if anyone working within the court service know anyone on a personal level they are supposed to Recuse themselves from this case and take no part in it at-all.
Yet we all know in Ed Milne's case the fiscal was banned from his Garage for submitting a fraudulent claim.
We also know he used the services manager as chief prosecution witness against Ed, despite him being the person who submitted the fraudulent claim on behalf of the fiscal
We can clearly see this should not happen from this article above.
Just wondering where this will sit with the SCCRC who are reviewing Ed's case again for a second time.
Perhaps Mr Milne should also submit a Pinochet appeal to SCCRC or the Scottish version would be Hoekstra see bottom two links:
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