THE Lord Advocate James Wolffe QC has been forced to issue a warning to lawyers in the Crown Office and Procurator Fiscal Service after three top judges severely criticised the conduct of an Advocate Depute in a rape case.
The National can reveal that the then advocate depute in question was promoted to summary sheriff even though the judge at the trial had to warn the jury after his conduct in the case of Kyler Paterson of Kirkcaldy.
The then 21-year-old Paterson was convicted of the abduction, assault and rape of a 15-year-old girl on a Fife beach in 2015 and was sentenced to five years’ imprisonment last October.
He appealed against conviction on grounds that the conduct of the trial was a miscarriage of justice.
Only The National carried the report of proceedings in the Appeal Court last month. We told how the written judgement contained possibly the most severe criticism of the prosecuting authorities in many years
Lord Malcolm wrote the findings with which the second highest judge in the land, the Lord Justice Clerk Lady Dorrian, and Lord Glennie concurred.
Lord Malcolm wrote: “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 presumably carefully considered position of the Crown in response to this appeal was presented by another of the Lord Advocate’s deputes [Sheena Fraser].
“If [her submissions] 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.”
Dismissing the appeal by Paterson on grounds that there had been no miscarriage of justice, Lord Malcolm added: “The cross-examination of the appellant started on the declared basis that he was a liar, who was trying to fool the jury to escape his guilt. There was an unpleasant and disrespectful tone to the questioning, allied to various attempts to diminish the appellant in the eyes of the jury.
“In cross-examination and in his speech the advocate depute made it clear that both he and the prosecuting authority considered the accused man to be guilty of the charge. The questionable tactic of trying to force him to accuse others of being liars was regularly deployed.”
Lord Malcolm wrote that the trial judge Lord Clark had to make extensive remarks to ensure that the jury was correctly advised about which parts of the evidence to ignore.
A senior lawyer with knowledge of the case spoke to The National on condition of anonymity.
The lawyer said: “It was clear that the advocate depute was going too far in his bid to secure a conviction, and I am afraid that is becoming typical of many of our prosecutors.
“They are supposed to deal in facts and evidence and not suggestions to convince jurors that someone is a liar."
A Crown Office spokesman told The National: “We accept that the conduct of this case did not reflect the high standards expected by the Crown Office and Procurator Fiscal Service and was not representative of the general ethos and culture of the organisation.
“The Lord Advocate has taken immediate steps to remind all prosecutors of their responsibilities.”
A Judicial Office spokesperson said: “Individual cases are a matter for the presiding judge or judges who take full account of the unique facts and circumstances.”
Justice Michael Matheson refused to comment on the matter.
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