Representing Yourself in a Scottish Court

You may want to refer to the briefing on procedure as you read this section.

If you defend yourself the Justice1/Sheriff usually advises you as you go along as to the procedure. If you are in any doubt ask. Remember just stay calm, take your time. Speak up so that everyone can hear you. (Including your supporters who are behind you - literally!). You have the same rights as the PF and can interrupt if you think something he/she says is irrelevant!

The District Court is fairly informal and you can enter into debate with the Justice (Justice of the Peace - who is usually a lay person, not a trained lawyer). The Sheriffs Court is more formal, but because the sheriff is a trained lawyer they will give more serious consideration to any good legal arguments you may have.

Gathering information

You may want to go for a full legal defence using every argument you can lay your hands on. You may want to introduce a lot of moral arguments and personal testimonies. Or you may want to keep it simple. Whatever you feel is right for you must still do some preparation. The Justice/Sheriff can refuse to hear evidence if he doesn't think it is relevant. So have a fall back position if what you want to say is not allowed.

Prosecution Witness Statements

Witnesses against you (usually police) send statements to the Procurator Fiscal before the trial. You can write to the PF and ask him for the names of the prosecution witnesses and copies of their statements. Historically, the Crown's position has been that we don't have an automatic right to copies of statements if representing ourselves. However, Dumbarton PFs have usually given us them. It has often taken a bit of pushing (several letters/phone calls). The times when we haven't got them from Dumbarton have usually been because they didn't have them themselves. The Introduction of the European Convention on Human Rights into Scots Law a few years ago changed this situation somewhat. Our position is now that we do have the right to copies of statements. There have been a couple of occasions in other parts of Scotland where we have initially been refused statements and have had to put formal legal arguments - however the Crown has so far always conceded the argument before it was put! If you are refused statements and would like to know more about how to push for them then get in touch with the Legal Working Group. Cases have been adjourned because the PF has promised to send the statements and then has failed to do it or has only done it very near to the trial.

The witnesses can still say things in court that weren't in their statements, but it does give you an indication of who they are and where they fit into the picture. They help you focus and work out what questions you could ask them.

Also the statements let you know if the police are likely to give a completely different version of events to one you have. This gives you a chance to arrange your own witnesses, photos, videos etc to back up your story.

Defence Witnesses

The PF will not allow witnesses who cannot come to the trial to write statements to be read out in the court, because they cannot be cross-examined. You can however present documents to the court as 'productions' for your defence if you give evidence yourself. These can include reports, articles, letters from MPs etc.

You can call anyone who was a witness to the action to give evidence on your behalf.

If you are defending yourself and are therefore not on legal aid your witnesses cannot claim their travel expenses.

We have in the past called expert witnesses to talk about things like the effects of Trident and International Law. The courts were very reluctant to hear them and since the Lord Advocates Reference Opinion was issued we have only tried once and been refused.

If you are found guilty, legally before sentencing you can call character witnesses (if you have no previous convictions).

McKenzie's Friend / Note taker

In English courts it is possible to have what is called a McKenzie's Friend if you are representing yourself: this someone (it can be but often isn't a lawyer) ideally sitting next to you and helping you during the trial - e.g. with paperwork, whispered consultations re examinations of witnesses, moral support, etc. This right is established by the judgment in McKenzie v McKenzie which is an English case is not binding in the Scottish Courts. There was no objection to a McKenzie's friend in Helensburgh District Court at first but after a few instances (some years ago now) of the police identifying the 'friend' instead of the accused the PF started objecting. The court allows a note taker but usually don't let them sit next to you.

There have since been a helpful (although not technically binding) judgment from a Scottish civil court. Furthermore, under the European Convention of Human Rights you are entitled to a fair trial and it is very arguable that someone representing themselves should be allowed an assistant. If you wish to press for an assistant then we can offer some more detailed advice.

Preparing Your Defence If You Are Representing Yourself

If you are representing yourself then it is a good idea to prepare the bits where you can speak. You can either read things out word for word or have notes to help you. Everyone is different so do whatever you feel comfortable with. Have a look at the Court Procedure briefing so that you can see where these bits fit in. These are all optional. You can go through the whole trial and say nothing - in fact it has been done to make a point!

Questions to the Police

If you think that they got anything wrong in the evidence they gave then question them on it. If you disagree with what they say make that clear. Say something like Can I suggest to you, officer, that you are mistaken about that and what actually happened is this?.

You might want to ask them about the general atmosphere at the action or your behaviour in particular.

You can ask why there was a demonstration and had they been briefed before they arrived about what to expect.

Submission that there is 'No Case to Answer'

If after the PF has put all the Crown evidence before the court you don't think it amounts to what you are charged with you can say so. It's hard to prepare this bit in advance other than to think about the kind of things you will be looking for in the evidence. At this stage it's not the quality of the evidence that is considered but the quantity. In other words your saying 'even if everything the PF and his witnesses have said is true, it's still not enough to show I committed a Breach of the Peace'. If the PF has not made out a case that you committed a crime then you can ask the court to throw it out without having to offer a defence.

If you have more than one charge you can submit that there is no case to answer on one charge and still continue to trial on the other charge(s).

In Breach of the Peace (BoP) cases there is an argument to be made about what constitutes a BoP. The cases to be quoted are the High Court Opinion in the appeals of Smith v Donnelly and Jones v Carnegie. (In the Case Law section or we can e-mail or post you a copy). If the evidence doesn't show that your behaviour caused someone to be alarmed, in fear or seriously disturbed, or would have done if they were there, then you can argue that there was no BoP. Some of our local JPs and Sheriffs think that just stopping people go about their 'lawful business' is seriously disturbing. Sheriffs have accepted that a publicised blockade that everybody locally is expecting is possibly annoying but not disturbing. The Helensburgh JPs do not accept this.

Bear in mind that if your submission is accepted then you will be found not guilty and your trial is finished which means that you don't get a chance to talk about Trident. Some people feel that they would rather risk being found guilty and get the chance to explain why they took part in the action so intentionally don't put in a submission at this stage.

Your Evidence from the Witness Box.

If you go in the witness box the PF can ask you questions after you have given your evidence. It is your choice whether you give evidence or not. If you don't you still have a chance to sum up but can't refer to anything which wasn't given in evidence under oath or affirmation.

In your evidence you are supposed to give your version about what actually happened on the day in question. The court will not let you make a long speech about Trident. However you can get a certain amount in by explaining that you are 'setting the scene', testifying as to your 'state of mind' at the time, giving 'the facts about how you came to be there'. The PF might jump up at some point and object that your evidence is irrelevant. You can explain why it is and then the JP has to decide whether you can continue. If you are told to confine yourself to what happened then talk about the action but don't be afraid to weave Trident into the facts! Very occasionally a Justice decides that you are not supposed to read your evidence, so be familiar with it in case you need to do it from memory.

You can hand in things during your evidence including: Reports, results of polls, press cuttings, photographs, letters to and from people (e.g. MPs), poems. It is helpful to have three copies - one each for the JP/Sheriff (and the clerk), PF and yourself. If it's something you might want to show to one of the witnesses it's a good idea to have a fourth copy for the witness.

Laughter and tears are also important. Don't be afraid to offer both in your defence.

Summing Up

You get a chance to sum up your defence. This is where you argue why you are not guilty as charged. This (or the No Case to Answer) is where you would put your legal argument.

You should point out any inconsistencies in the PFs evidence and the things that any witnesses said that back up your defence e.g. that your behaviour was not threatening or alarming. You can try to pick apart the wording of the charge. The wording 'disorderly' in a legal sense means doing something as outrageous as laying in a road!. Even if your witnesses say you are a very orderly person you can still be considered disorderly in your actions.

You can quote from other cases but you should have a copy of them with you to show to the court. The High Court Opinion in Smith v Donnelly has some helpful bits about what is a Breach of the Peace.

If you base your defence on an explanation of how Trident is illegal then the court will ignore it (or stop you from speaking) because the High Court in Edinburgh has said that Trident is not illegal. We still usually say that we know that Trident is illegal even if the Scottish Courts don't recognise it!

You can add lots of politics and morality into your defence, but be ready to be stopped.

Plea of mitigation

After being found guilty you have another chance to speak. You can give details of your income and the impact a large fine would have on you and your dependants. If you plead poverty you will tend to get a lower fine.

You can stress that your action was an act of conscience and was totally nonviolent.

  1. Or, in the District Court, sometimes the Clerk [Back]