Prejudicial conduct of Advocate Depute in rape trial ‘neither institutional nor widespread’

The Lord Justice Clerk, Lady Dorrian, Lord Malcolm and Lord Glennie refused an appeal against a rape conviction in KP v HM Advocate (summary above), but noted the prejudicial questioning of the Advocate Depute.

In the opinion of the court, Lord Malcolm stated: “It is clear that a substantial and prejudicial departure from good and proper practice occurred at this trial. That it should happen at all is concerning in itself.

“However, the matter does not stop there. This appeal was based upon criticism of the conduct of one of the Lord Advocate’s deputes in a rape trial conducted in the High Court.”

The “carefully considered” position of the Crown in response to the appeal was given by another Advocate Depute.

In response to this, Lord Malcolm said: “If they were the carefully considered position of the Crown, the failure to acknowledge that something had gone seriously amiss requiring, at the very least, clear and direct action by the trial judge, would suggest that there is a broader question as to the ethos and culture in the prosecuting authority.”

The Lord Advocate, James Wolffe QC (pictured above), has since issued a warning to prosecutors, while COPFS has said the conduct was “not representative of the general ethos and culture of the organisation”.

Speaking to Scottish Legal News, advocate Thomas Ross (pictured right) acknowledged Lord Malcolm’s concerns but was sceptical that the attitude was endemic in the Crown Office.

He said: “In the first place it is crystal clear that things were said by the Advocate Depute that should not have been said. I understand Lord Malcolm’s concerns, but my opinion, based upon the conduct of almost 300 trials in the High Court, is that the problem is neither institutional nor widespread.

“The difference between calling a witness a liar and submitting that the appropriate inference to be drawn is that the witness is a liar is obvious to an experienced trial lawyer - less so to someone with little trial experience.”

He added: “Advocates depute come to that role from a variety of backgrounds - perhaps those who come with little experience of criminal litigation require more training on the duties and responsibilities of a HIgh Court prosecutor before being entrusted with the serious business of a High Court trial”