Sheriff Appeal Court quashes assault charge based on sheriff’s consideration of phone evidence

A man who was convicted of assaulting his former partner and of behaving in a threatening and abusive manner in breach of the Criminal Justice and Licensing (Scotland) Act 2010 has succeeded in having the former charge quashed by the Sheriff Appeal Court.

The convictions of the appellant, referred to as CB, were appealed in relation to five questions relating to the trial sheriff’s consideration and assessment of mobile phone footage submitted in evidence by the Crown.

The appeal was heard by Sheriff Principal Mhairi Stephen QC, sitting with Sheriff Principal Craig Turnbull and Appeal Sheriff Peter Braid.

Assessment of footage

During the trial, the complainer had agreed with the suggestion that both pieces of footage were from the incident of 29 May 2018, the date of the second charge. The trial sheriff’s assessment of the two pieces of footage was that they could not be of the same incident, but the first piece of footage was consistent with the circumstances of 21 April 2018, the date of the assault charge.

Having reached that conclusion, the sheriff proceeded to attach weight to it as further corroboration of the assault. Prior to delivering his verdicts, the sheriff did not advise parties of the conclusion he had reached in relation to the first piece of footage nor did he afford parties the opportunity to address him in relation to his assessment of the first piece of footage.

In the appeal, the parties were agreed that the sheriff was entitled to view the footage privately. They also agreed that the sheriff erred by concluding that the footage was recorded on 21 April 2018, and that he was not entitled to determine that the appellant admitted to assaulting the complainer on that date.

The fifth question, and the one that fell to be answered in the appeal, was whether the sheriff erred by failing to allow the parties to address him on his conclusion that the first piece of footage related to 21 April 2018. The appellant submitted that he did, and that this amounted to a miscarriage of justice.

Leap of logic

In the opinion of the court, delivered by Sheriff Principal Turnbull, it was said of the phone evidence: “The only evidence in relation to the provenance of the mobile phone footage came from the complainer and was that the footage was captured on 29 May 2018. It was, of course, a matter for the sheriff as to whether or not he accepted that evidence. It is clear that the sheriff did not accept the complainer’s evidence as to the date upon which the first of the two pieces of footage was taken. For the reasons given by the sheriff, that is unsurprising. There was, however, no evidence before the sheriff that the footage was of the events which took place on 21 April 2018. There was evidence before the sheriff that the parties’ relationship was tempestuous and volatile and that there had been incidents on dates other than those libelled in [the charges].”

Sheriff Principal Turnbull continued: “In such circumstances, the sheriff was not entitled to make the leap of logic which he did and conclude that because the first footage did not show events of 29 May 2018, it must depict events of 21 April 2018. That proposition had not been put to the complainer in evidence, and there was therefore no evidence to support the conclusion which the sheriff reached. Having rejected the evidence of the complainer as to the date of recording of the first piece of footage, that evidence ought simply to have played no further part in the sheriff’s deliberations, and certainly should not have been used to found an inference of any sort that the footage could relate only to 21 April 2018.”

In relation to the fifth question, Sheriff Principal Turnbull observed: “It appears to us that the question should not be whether the sheriff erred in failing to allow parties to address him after concluding that the footage related to 21 April 2018, but whether he ought to have allowed parties to address him before reaching any conclusion on that matter.”

He continued: “The sheriff in this case went too far. He went far beyond harbouring a concern regarding the provenance of the first piece of mobile phone footage. He reached a conclusion he was not entitled to reach on the evidence; which neither party had invited him to reach; and upon which he had not been addressed. In a case, such as this, where there was no controversy between the parties as to the date upon which the relevant footage was recorded, before reaching a concluded view on what was essentially a frolic, the sheriff ought to have explained his thinking to parties and allowed them the opportunity to address him upon it.”

In relation to the appellant’s convictions, he said: “The case against the appellant, in relation to [the first charge] was clearly a finely balanced one, in which the sheriff took into account the first piece of mobile phone footage. Whilst rejecting the plea of self-defence advanced on behalf of the appellant, the sheriff concluded that the assault was committed under provocation. For the reasons outlined above, the sheriff erred in concluding that the mobile phone footage related to the incident in [that charge]. We are satisfied that the sheriff’s error amounts to a miscarriage of justice.”

He continued: “In relation to [the second charge] it cannot be said there was a miscarriage of justice. The sheriff’s approach to the evidence on this charge was not vitiated by his assessment of the first piece of video footage.”

For these reasons, the appeal was allowed in relation to the assault charge, which was quashed. The appeal was refused insofar as it related to the other charge.