Glasgow fiscal successfully challenges decision to abandon sexual assault trial

Sheriff Principal Mhairi Stephen QC
Sheriff Principal Mhairi Stephen QC

A Bill of Advocation by the Procurator Fiscal, Glasgow challenging the refusal of a sheriff’s motion to adjourn a trial to secure the attendance of an essential witness has succeeded in the Sheriff Appeal Court (Criminal Division).

The respondent, Robert McIntyre, was charged with sexually assaulting his former partner, X. The sheriff’s decision brought the prosecution to an end. The Crown argued that no reasonable sheriff would have made the decision to dismiss the complaint.

The Bill was heard by Sheriff Principal Mhairi Stephen QC, sitting with Appeal Sheriff Robert Fife and Appeal Sheriff Thomas McCartney.

Childcare difficulties

The details of the charge were that the respondent forcibly removed a towel from around X’s body and seized her on her private parts, buttocks, and breasts. This offence was aggravated by involving abuse. The respondent pled not guilty to the charge with trial diets fixed for 22 November 2019 and 6 December 2019, respectively, and was released on bail with special conditions relating to X and the locus.

The complaint called for trial on the afternoon of 6 December 2019, the morning having been taken up by another part heard trial with priority. The trial diet was adjourned due to X not being able to remain at court for the duration of the day for childcare reasons. The case was adjourned until 17 March 2020 but could not continue on that date as X was self-isolating due to Covid-19 concerns.

A new trial diet was fixed for 2 September 2020 after the end of lockdown. X was given only eight days’ notice of this new date. On the day, the Crown made a motion for a further adjournment as X could not attend court due to childcare difficulties. The sheriff refused the motion and deserted the diet simpliciter in terms of section 152 of the Criminal Procedure (Scotland) Act 1995.

It was submitted for the Crown that the trial sheriff had erred in her approach to the exercise of discretion when considering the complainer’s motion to adjourn. She failed to give proper weight to the pandemic, the seriousness of the charge, and the considerable irreparable prejudice to X.

It was noted that X was deaf and had two sons with autism. The combined family circumstances rendered childcare exceptionally problematic, with the pandemic making matters even more difficult. Against that background X had attended court on 6 December 2019 when she was available to give evidence, but only in the morning.

It was further submitted that the sheriff’s assessment of X, in which she said that X was “more culpable” for the case not proceeding to trial on 2 September than the Crown suggested, was therefore extremely unsympathetic.

Prejudicial consequences

The opinion of the court was delivered by Sheriff Principal Stephen. She said of the sheriff’s assessment of X: “The sheriff’s assessment is not borne out if the procedural history of these proceedings and X’s personal circumstances are scrutinised objectively. It appears to us to be both incorrect and unfair to suggest that X has failed to cooperate with the Complainer and the court with regard to giving evidence.”

She continued: “It is clear from her report that the sheriff is unimpressed by the explanation provided by X for her failing to answer her citation. It appears that this was a significant factor in the sheriff’s consideration of the motion to adjourn. Given X’s circumstances and those of her family and the short notice of the trial it appears to us to be rather harsh to criticise X.”

Addressing the decision to bring the trial to an end, she said: “This is a very significant and important step which, as the authorities indicate, should not be taken without very careful consideration. There are important aspects to this case which lead us to the view that the sheriff failed to give adequate weight to the interests of the prosecutor and the public interest including that of X.”

She continued: “The sheriff appears to have given insufficient weight to the prejudicial consequences which the refusal of the adjournment would cause for the prosecution of this serious charge and X as the complainer in that charge. Insufficient consideration has been given to the current public health crisis, a factor which is difficult to overstate.”

Sheriff Principal Stephen concluded: “In refusing the crown adjournment in the absence of real prejudice to the respondent compared with the clear, obvious and significant prejudice to the prosecutor and the public interest, including that of X, the sheriff reached a decision which no reasonable sheriff could have reached in all the circumstances.”

For these reasons, the decision to dismiss the complaint was recalled, and the case remitted to the sheriff for trial.

© Scottish Legal News Ltd 2021

Other judgments by Sheriff Principal Mhairi Stephen QC