Man acquitted of rape who skipped court for Ibiza wins appeal against sentence

The Criminal Appeal Court ruled that the sentence imposed was “excessive” and instead imposed a custodial term of 18 months.

The Lord Justice General, Lord Carloway, sitting with Lord Menzies and Lord Turnbull, heard that the appellant Alexander McKinlay was tried at the High Court in Edinburgh on an indictment containing two charges. 

‘Considerable public expense’

The first was one of rape of a 19-year-old woman in Doune in November 2016, in terms of section 1 of the Sexual Offences (Scotland) Act 2009, and the second was that in August 2018 he failed to appear at a diet at the High Court of Justiciary at Glasgow “without reasonable excuse”, contrary to section 102A(1)(a) of the Criminal Procedure (Scotland) Act 1995.

The circumstances of the appellant’s failure to appear at the preliminary hearing were that he had first appeared on petition at Stirling Sheriff Court on 18 September 2017, when he made no plea or declaration and was granted bail. 

The indictment was served on 17 July 2018 at the appellant’s law agent’s office, citing the appellant to appear at a preliminary hearing at the High Court in Glasgow on 17 August 2018. 

But the appellant was not present at that diet – he had travelled to the Spanish holiday resort. 

When in Ibiza, the appellant had made no contact with those representing him, and he could not be contacted because he had put a Spanish SIM card in his phone. 

He was arrested on a European Arrest Warrant on 16 January 2019 and extradited unopposed, before appearing at the High Court on 31 January 2019, when he was remanded in custody. 

Following a trial the jury acquitted the appellant of the rape charge but convicted him of failing to appear at the preliminary hearing.

The appellant was sentenced to three years imprisonment, on the basis that his failure to appear in court on 17 August had “delayed the trial” and incurred “considerable public expense” in the extradition process. 

‘Excessive sentence’

The court was told that 32-year-old had a “substantial criminal record”, although none involving prosecution at solemn level, which involved sentences of imprisonment on four occasions. 

He had also breached Community Payback Orders on two occasions and Bail Orders on five.

However, he challenged the sentence imposed, and the appeal judges agreed that the disposal was “excessive”.

Delivering the opinion of the court, the Lord Justice General said: “It is important to recognise that the diet under consideration was not a trial diet, but a preliminary hearing.

“Even taking into account the expense of the extradition process and the appellant’s previous convictions, notably the breaches of bail, the court is persuaded that the sentence is excessive. 

“It will quash the sentence of three years imprisonment and substitute one of 18 months.”