I received the report from Andrew Kitchener within a few days. He had made a comparison of ‘my’ wildcat against a set of points that must be able to be ticked off to conclude that a cat is indeed a true wildcat. The cat I had seized was a hybrid, therefore unless I could prove that cruelty was involved in its capture or death and that the suspect had caused this cruelty there was no case. This was a non-starter but at least I had saved the expense of having a full post-mortem examination of the cat.
I received Ranald and Helen’s report about a month later. One or two of the specimens could be excluded from the case as the vets could not be conclusive about their cause of death. I was left with two swallows and a lapwing that appeared to have died through suffocation, a buzzard that appeared to have been poisoned though unfortunately the poison or pesticide used could not be determined, and a pine marten that had been shot twice with a .22 rifle. The injuries in all of these deaths were substantially different to those that would be expected from a collision with a vehicle on a road. The suspect therefore went to court on five charges relating to the possession of the four birds and the pine marten.
This case dragged on for almost a year, with the defence QC arguing that under Human Rights legislation the police had no right in law to ask his client to account for his possession of the dead birds and animals in the alfresco freezer. The sheriff gave this argument much consideration and made a judgement in favour of the prosecution. The trial had been part-heard and evidence continued to be led at the next diet of the court, but even then the evidence was not concluded. At the next – third – diet the accused agreed to plead guilty to possession of a pine marten only, a plea which the procurator fiscal accepted. He was fined £500.
Even though I still consider the Scottish justice system as good as can be found anywhere there are many aspects that annoy me. Hardly anyone ever pleads guilty when the case is called in court for the first time. This applies even to those who are caught in the act of committing the particular crime with which they are charged, even housebreakers caught inside premises. If we take this as an example, the evidence may be overwhelming but a case still has to be proved. If an accused is advised by his solicitor to plead not guilty the solicitor may be looking for some weakness in the prosecution case. When the trial draws near the case may be adjourned because of some legitimate reason put forward by the defence or procurator fiscal. In each case it must be established beyond reasonable doubt that the accused is the person who committed the crime in question. The longer the case drags on the more the memory of the witnesses fade and the more unlikely they are to recollect crucial facts, including the ability to identify the person who committed the crime. Because of the delays the defence now has a strong advantage.
By the time the next trial diet comes around a crucial prosecution witness may not be able to attend the court for one reason or another, possibly on holiday or in bed sick. The trial is either adjourned at the request of the prosecution or the defence manages to get the procurator fiscal to agree a plea of guilty that only reflects a fraction of the circumstances that actually took place. This is yet another advantage to the defence. It always seems to the onlooker to be the case in trials that the defence call the shots and the procurator fiscal has to acquiesce.
If the case is continued and there is some other genuine but unfortunate reason the prosecution cannot proceed with the trial the fiscal may be forced into abandoning the case altogether. An accused, found inside a house and charged with breaking into the house with intent to steal could be acquitted! I hope I am not being too cynical when I say that the defence agent will also have made a lot of money either from his client or from legal aid. Nevertheless – and I must stress this – the defence has done nothing illegal or improper.
Although I only cite this as a theoretical example, I cannot think of a single case where the prosecution has a clear advantage over the defence. Similarly I can think of very few cases in recent years when the accused has pleaded guilty at the first court appearance. In the cases I can think of the advantage has been with the defence again. One particular wildlife case comes to mind where the sheriff was a visiting sheriff, spotted by the defence as being particularly lenient, much more so than the resident sheriff would have been, and a fine at the absolute bottom of the scale resulted. In other cases the accused receives a reduced penalty for pleading guilty at a particularly early stage, though I must say I agree with this policy entirely. If this is an advantage to the accused by way of a reduced penalty why is an early plea not the norm? There are always committees looking to improve the criminal justice process and to devise a means of getting cases through courts in a way that breaks the never-ending logjam of trials.
We are still waiting.
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