Case taken up by miscarriage of justice body referred to High Court for second time

A woman convicted of assault and then admonished and whose case was taken up by the Scottish Criminal Cases Review Commission and referred to the High Court of Justiciary, which refused the appeal, has, in an exceptional occurrence, had her case referred for a second time.

The Scottish Criminal Cases Review Commission referred the case of Carol Olwyn Kirk to the High Court of Justiciary.

On 11 May 2015, after a trial at Stirling Justice of the Peace Court, the applicant was found guilty of assault. On 13 November 2015, following a six-month deferment, the court admonished her.

The case arises from a dispute between the applicant and her neighbour, both of whom own dogs. The complainer’s dog and the applicant’s had an altercation in an area behind their houses.

The applicant struck the complainer’s dog with a lead to try to separate the animals. The Crown alleged that the applicant struck the complainer repeatedly in the melee, causing injury to her hand.

The Justice of the Peace considered that, although the first strike on the complainer may not have been intentional, later ones were. Accordingly, the JP convicted the applicant of assault.

In March 2017, the commission referred the applicant’s case to the High Court. It did so on the basis that the JP’s account of her reasons for convicting the applicant made reference to a recording of the incident, which, she said, featured repeated cries from the complainer.

The commission obtained what it took to be the same recording. This did not include any screaming from the complainer. Standing the fact that the presence of screaming appeared to have been decisive to the justice’s decision to convict, the commission considered that there may have been a miscarriage of justice.

The court heard the appeal in August 2017. The pleadings in the case had not framed the issue around the discrepancy between the recording and the JP’s account of it. There was, furthermore, no agreement between the parties regarding the provenance of the version that the commission had obtained during the review. Accordingly, the court refused the appeal.

The commission has decided, exceptionally, to refer the case to the court for a second time. The Commission considers that the provenance of the copy of the recording available to the Commission may be established with reference to other available evidence. With this in mind, the Commission believes that the reasons for the first referral remain sound.