Man accused of ‘threatening and abusive behaviour’ towards ex-wife wins appeal to have case dismissed 

The appellant appealed against a summary sheriff’s decision to repel a preliminary plea in bar of trial on the basis of “oppression” after the Crown had raised a separate identical complaint against him.

The Sheriff Appeal Court ruled that the summary sheriff’s decision was “flawed” and that the complaint should be dismissed.

‘Threatening and abusive behaviour’

Sheriff Principal Duncan Murray, sitting with Sheriff Grant McCulloch and Sheriff Norman McFadyen, heard that the appellant Jonathan Kelly was facing a charge of behaving in a threatening and abusive manner likely to cause a reasonable person to suffer fear or alarm, contrary to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010, but at a previous trial diet on 22 October 2018 a sheriff deserted the case pro loco et tempore.

The court was told that the when the Crown called its first witness, the complainer, an objection was made to the admissibility of a DVD on the grounds that it was a copy of a voice recording, but there was no accompanying certificate in terms of section 279 of schedule 8 of the Criminal Procedure (Scotland) Act 1995 to allow it to be admitted without further evidence of its provenance, which the Crown did not intend to lead.

The procurator fiscal depute then indicated that she intended to introduce a further production, a mobile telephone which the witness had with her at court, but a defence objection to the introduction of the telephone on the grounds that it had not been previously disclosed was upheld.

The fiscal then moved a motion - opposed by the defence - to adjourn the trial part-heard, but the motion was refused and the Crown led no further evidence, following which the sheriff deserted the trial pro loco et tempore.

‘Oppression’

The Crown then raised a separate complaint libelling an identical charge against the accused, but it was argued that the prosecution was seeking to “take advantage of an error or incompetent decision” by the sheriff.

On 17 June 2019 the summary sheriff at Hamilton Sheriff Court repelled a preliminary plea that the prosecution’s case was incompetent on the basis of “oppression”.

The appellant submitted that the sheriff’s decision should have been to find the appellant not guilty on the basis of “insufficient evidence” having been led by the respondent, or alternatively to desert the case simpliciter in terms of section 152(2) of the Criminal Procedure (Scotland) Act 1995.

As a consequence, no further proceedings should have been raised and the appellant’s plea in bar of trial should be upheld, it was submitted.

The advocate depute submitted that the summary sheriff was unable to review the decision of the first sheriff, but had identified the correct test for oppression and had applied this correctly in reaching his decision to refuse the plea in bar of trial and to proceed under the common law to desert the trial pro loco.

‘Flawed decision’

Allowing the appeal, the appeal sheriffs observed that the terms of the legislation directed the sheriff to desert the complaint.

Delivering the opinion of the court, Sheriff Principal Murray said: “We read the terms of section 152 as being applicable to the circumstances before the sheriff on 22 October.

“It is not in dispute that evidence had been led in the original complaint; that the sheriff refused an application by the prosecutor to adjourn the trial; that there was no motion to desert the diet pro loco et tempore; and that the prosecutor was unable or unwilling to proceed to trial.

“In these circumstances the terms of statute directed the sheriff to desert the complaint simpliciter.”

“Accordingly,” he continued, “when the motion to adjourn was made and refused after the commencement of the trial and the prosecutor made no further motion and was unable or unwilling to proceed with the trial, the case should have been deserted simpliciter.

“On the basis, therefore, that on 22 October 2018 the sheriff should have deserted simpliciter and section 152(3) prevented the Crown from raising a fresh libel, it was oppressive for the Crown to proceed to re-raise proceedings.

“As anticipated in the original minute by the Sheriff Appeal Court this court can properly consider, taking account of all the circumstances, including the decision of the sheriff on 22 October, whether the complainer’s plea in bar of trial should succeed, which for the reasons stated we find to be the case.”

“Accordingly,” the court concluded, “taking account of our conclusion on the error on the part of the sheriff on 22 October, which was excluded from the consideration of the summary sheriff, we find his decision in repelling the plea of oppression to be flawed and we shall allow the appeal and dismiss the complaint.”