Lately in the press, in some true crime books and even on TV - ex criminals and crime journalists have been using this special defense to try convince those who do not know much about Scottish law that this defense is a grasses defense. Nothing could be further from the truth. As much as 72% of Scots charged with serious crimes use the special defense of incrimination.I could explain it in a Scottish Law fashion but that will only confuse those who do not understand this defense and why it is used..
Special defense in Scots law may be raised in criminal proceedings upon notice by the accused ahead of the trial. If established, it results in an acquittal. The only purpose of the special defense procedure is to give fair notice: it does not prejudice the plea of not guilty by an accused; the Crown still must prove the acts charged beyond a reasonable doubt.In solemn proceedings (prosecutions on indictment of more serious criminal offenses before a judge and jury of 15 persons notice of a special defense must be given at least 10 days before the trial date and the jury is advised of the special defense immediately after the indictment has been read (or summarized) and each juror is given a copy of the accuser's notice.
See what I mean?
Basically a special defense of incrimination is used by those prosecuted a chance to show the jury that the police and prosecution had other suspects in a case. With Scotland having three possible verdicts.Not Guilty, Guilty and that Bastard Verdict - Not Proven.
In Scots law if you can provide this important evidence to the jury the chances of creating doubt of your guilt raises substantially. In Scots Law, Doubt = Not Proven.
If the person or persons being incriminated are known to the accused. They can then ask them if they are willing to be impeached. If they agree it makes their statement more important. Those who are impeached by an accused and have not agreed, do not even have to appear in court. The prosecution will not force them to appear.If they do, any questions put to them can be refused to be answered.This is done by replying to each question with, "I refuse to answer encase I incriminate myself" and that is that. They can leave the dock as soon as questioning has finished. No trouble to them, they are not arrested, accused of the crime by the prosecution or the police.
When an impeached person agrees with the accused to accept an impeachment and the impeached person knows the system then when questions are asked the impeached person will enter into a line of constructed dialogue with the defense and the prosecution.
Example: James and Charles are arrested and accused of robbing Cumbernauld Post Office. During the investigation the charges are dismissed against James as he was not picked out in an identity parade held at Aitkenhead Road Police Station.
Charles is charged with armed robbery and firearms charges.
When the trial comes around it is at Airdrie High Court. Charles Impeaches James as a possible suspect. When James enters the witness stand he is sworn in and his testimony begins.
Charles Lawyer asks James......Do you know Charles?
James answers, Yes I do.
Charles lawyer: then asks James if Charles robbed Cumbernauld Post office?
James replies, NO! (Creating Doubt)
Charles lawyer then asks James, Did you rob Cumbernauld Post office?
James replies, I refuse to answer that encase I incriminate myself. (Creating Doubt)
Charles Lawyer then asks, where you in Cumbernauld at the time the post office was robbed?
James replies, I refuse to answer that encase I incriminate myself....(Creating Doubt)
Charles Lawyer then asks, The prosecution have stated that Charles was in Cumbernauld at the time of the post office robbery, do you know if that is true or not.
James replies, No he was not. (creating doubt)
Charles lawyer: How do you know Charles was not in Cumbernauld robbing that post office just as the prosecution implies?
James replies: I refuse to answer encase I incriminate myself.......(Creating Doubt) etc etc etc
Charles found not proven on all charges
I hope you get the picture. Incrimination is used, and has been used for years as a way of creating doubt and allowing the jury the knowledge that there where other suspects in the case.
In no way is it seen as grassing among criminal circles, it's a trial changer and one the prosecution and the police hate.
William Lobban and Russell Findlay have used this in books and TV programs to try say Paul Ferris pointed the finger at William Lobban, Mick Healy and John Daley. Simply because they were all escaped convicts at the time.On the run from police,. Hiding out around Glasgow and the UK. Paul Ferris and his defense team knew that none could appear in the dock. So William Lobban claiming that Paul Ferris pointed to him in the dock and said:He killed Arthur Thompson junior is pure fantasy.It never happened and if Lobban had been in the witness stand then Paul Ferris would not be doing the talking, his QC Mr Findlay would have been making any accusations.
Lobban was not in that court, so it makes it another jackanory tale from William.
As ffor Russell Findlay's claim in his last book, all he done was quote William Lobban. If what William had claimed had really happened as he said then you can be sure certain Scottish tabloids would have jumped all over that at the time. Press manipulation at work there.
We only have to Google "Special Defense of incrimination and you can see how many people have used this as a defense. Ross Monahan was impeaching 99 separate individuals when he was on trial for murder.
. William Lobban has used the defense himself in past cases and has even accepted impeachment in an armed robbery case. However, instead of going the usual route of not answering .William , with a bible in hand claimed to be a born again christian and gave a full statement during the trial implicating Paul Ferris in an armed robbery case down in Toprquay that he had nothing to do with.