Chapter 1
‘Yes, thank you very much Mr Munro.’ Sheriff Albert Brechin, not satisfied with having interrupted most of my cross examination of the Crown witnesses, had decided he’d heard enough of my client’s examination-in-chief.
‘If your Lordship might allow me to finish?’
‘You mean you have more questions for the accused?’ This was Brechin’s way of signalling to defence lawyers that every further minute of, as he saw it, unnecessary questioning would only add time to the sentence he was about to impose.
‘Just a few,’ I said, turning once more to the witness box where Adam Brodie stood, short hair, shoulders back, chin at a steady 900 to his broad chest.
Brodie was facing two counts of assault. As far as defences went, justice might be a lottery but he hadn’t even bothered to buy a ticket. The evidence that could be agreed was as follows: my client lived in a second floor flat. One Friday night there was a racket outside that threatened to waken his grandchildren who were on a sleep-over. My client’s wife called out the window to a couple of neds drinking at the bus stop below, telling them to keep the noise down, but only to be on the receiving end of a lot of verbal abuse.
At this point, prosecution and defence paths diverged as to what happened next, the defence line being nothing at all; at least nothing involving the accused. The Crown witnesses had a different recollection of events. Both victims identified Brodie as the person who’d arrived on the scene shortly afterwards and swiftly dispatched them to the cold reality of the pavement.
As one ned fled, Brodie was said to have sat astride the other, telling him – to paraphrase - not to be so rude to his wife again, underlining the importance of this message by tapping the beat of each word on the fallen ned’s face using the sharp point of some woodworking tool or other, leaving behind numerous tiny lacerations.
Having not only identified their assailant, one victim also testified that my client had been wearing a strange pair of trainers that looked to be part corduroy. Trainer fabric and design being the sort of thing a ned notices even at times of distress.
In the course of their testimony, the police witnesses had applied what the Crown intended to be the icing on the cake. Upon searching the accused’s house they’d come across a pair of brown corduroy trainers abandoned in a spare room - the cherry on top being the wooden handled chisel stuffed inside one of them. These items had featured respectively as Crown labelled productions 1 and 2.
Scotland’s criminal justice world is run by deputes. They’re the ones who do the actual work. You want to contact the Chief Constable? No chance. They’re too busy hobnobbing with politicians and polishing the scrambled egg on their peaked caps. Instead, try writing to the deputy Chief Constable. You won’t get far but you will get some kind of a response. Same with Sheriff Clerks. Seldom seen in the wild; you’ll deal with Sheriff Clerk deputes. High Court prosecutions at the instance of the Lord Advocate - who’s on their hind legs in court? An Advocate depute. Same applies to Sheriffs. Each jurisdiction still has one Sheriff Principal lording it over those who used to be referred to as Sheriff substitutes, keeping a record of how they perform, but rarely darkening the door of a court themselves. The rule applies even more so to Procurators Fiscal. Prosecutions in the Sheriff Court are almost always presented by PF deputes. Which was why the appearance of the actual PF, Hugh Ogilvie, in the case of PF Livingston -v- Adam Brodie could only have been down to him identifying a cast-iron win and, more importantly, a cast iron win over me.
I looked across the well of the court at him. Never a good idea. Ogilvie was the sort of man who drained the light from one’s eyes. Throughout these proceedings he’d scarcely been able to conceal his enjoyment. When my client had testified about it all being a case of mistaken identity and a miscarriage of justice in the making, the PF had been silently laughing so much I’d had hopes he might fall off his chair.
‘And so you maintain your innocence, Mr Brodie?’ I asked, sensing Ogilvie itching for a chance to cross-examine. But I wasn’t quite finished. ‘Or should that be Sergeant Brodie?’
‘It’s just Mr Brodie now, sir,’ the man in the dock replied.
Sheriff Brechin sat up. ‘What’s that?’
‘The accused is recently released from service with His Majesty’s armed forces,’ I said, casually. ‘As a matter of fact, I think he has his discharge papers with him.’
You better believe he had them with him. I’d made certain of that. When a younger man, Sheriff Albert Brechin had served four years in the Royal Scots as a legal officer. He absolutely adored a serviceman. I’d not only insisted my client brought his discharge papers with him, I’d been on the verge of suggesting he don full dress uniform and abseil into the witness box.
I handed the documents to the clerk who passed them up to the bench. Sheriff Brechin adjusted his half-moons. ‘Royal Marine Commando,’ he said more to himself than anyone else. ‘Wounded in action…’
‘Hardly bothers me now, Sir,’ came the voice from the witness box.
Brechin returned his gaze to the paperwork, absorbing reference therein to numerous citations and the Meritorious Service Medal. Eventually he looked up again. ‘I think you said you were finished Mr Munro?’ and, not waiting for an answer, ‘I take it you’ve no questions for the accused, Procurator Fiscal?’ Staring down to his right, he dared Ogilvie to say otherwise. ‘Good, then if that completes the defence case, Sergeant Brodie…’ I noticed it was now Sergeant Brodie and no longer the accused, ‘can return to the dock. Mr Ogilvie...’
The PF rose to his feet, ready to sum up for the Prosecution, only to be met with the flat of the Shrieval hand. ‘I needn’t trouble you.’ Brechin transferred a stern look from one side of the well of the court to the other. ‘Mr Munro…’ I stood. ‘I know what you are going to say.’ I was glad about that because I had nothing. ‘You’re going to remind me that the Appeal Court has said time and time again just how unreliable identification evidence can be.’
That the Appeal Court had in my experience ever said anything that might remotely assist the defence came as news to me, but I nodded gravely in agreement and let him continue.
‘And no doubt you’ll rightly make the point that the events libelled against your client took place late one dark evening—’
‘But under streetlights, M’Lord,’ Ogilvie chipped in.
‘That the civilian witnesses had been drinking...’ said Brechin, affecting a little laugh, ‘and to expect them, in all the circumstances, to provide a positive identification some three months later—’
‘There is the evidence of the corduroy training shoes to consider, M’Lord.’
Brechin drew back his lips, straining the words through his teeth. ‘No doubt the product of mass manufacture and readily available for purchase by the lieges, Mr Ogilvie.’
‘And the chisel?’
‘An everyday working tool, to be found in homes across the land, I’m sure.’
‘But what about—’
‘I’m obliged to you for your well-intentioned observations, Procurator Fiscal,’ Brechin said, putting a judicial lid on things, ‘but I have a doubt as to the reliability of the Prosecution evidence and a reasonable one at that. Stand up Sergeant… that is, Mr Brodie. I find you not guilty. You are free to go.’
‘Thank you, sir,’ my client said, and just for a moment I thought they might salute each other.