Sheriff’s decision to desert trial because proceedings would ‘inevitably be unfair’ was ‘premature’, appeal court rules

A sheriff’s decision to desert a trial simpliciter on the basis that the proceedings would inevitably be “unfair” after it emerged that CCTV images identifying the accused would not be available has been successfully challenged by prosecutors.

The Sheriff Appeal Court said it was “unable to agree” with the sheriff’s conclusion that an unfair trial was “inevitable” and therefore ruled that the complaint should be remitted to the sheriff with a direction to assign a fresh trial.

Sheriff Principal Craig Scott QC, Sheriff Principal Marysia Lewis and Sheriff Paul Arthurson QC heard that at an intermediate diet in the case against the respondent Brian Miller, it emerged that CCTV footage from the date and place libelled in the complaint would be unavailable for the purposes of any trial.

The presiding sheriff determined that the respondent’s trial would inevitably be unfair and therefore chose to desert the complaint simpliciter.

However, the Crown lodged a Bill of Advocation on the ground that the sheriff’s decision to so was “incorrect”.

The advocate depute submitted that while the sheriff proceeded on the basis that identification of the respondent was reliant upon witnesses having viewed the CCTV footage, the evidence regarding identification which the Crown proposed to lead at trial emanated from members of the respondent’s own family.

Accordingly, the CCTV footage was of “no consequence” when it came to the issue of identification.

It was maintained that the sheriff at the intermediate diet had been “unable to carry out a proper assessment” as to the significance of the evidence which the Crown proposed to lead at trial as he had “failed to afford the procurator fiscal depute an opportunity to explain matters properly”.

The advocate depute argued that, even where the sheriff entertained a doubt about the fairness of the respondent’s trial, he ought to have continued the intermediate diet to allow “fuller argument” or simply continued the case to the trial diet thereby allowing the sheriff presiding at the trial to make what would have been” a more informed assessment” as to fairness.

Counsel for the respondent supported the sheriff’s “detailed and reasoned” report and submitted that there was “no proper basis upon” which to interfere with the decision taken, albeit that she accepted that the decision had, in effect, been taken ex proprio motu.

Passing the Bill, the appeal sheriffs ruled that the sheriff’s decision was “premature”.

Delivering the opinion of the court, Sheriff Principal Scott said: “In advance of the intermediate diet, the Crown had not been placed on notice that they might be facing a motion to desert the complaint. The sheriff’s consideration of the issue of unfairness would have benefited from a more informed appraisal as to the evidential basis for the charge against the respondent.

“However, we formed the impression from the submissions on appeal that the sheriff proceeded to desertion of the complaint without giving the procurator fiscal depute an opportunity to respond to the proposition that such a disposal was appropriate, particularly where such a disposal had been conceived of by the court itself.”

He added: “At all odds, in our opinion, the sheriff erred in his application of that test to the circumstances in the present case. Therefore, we have decided that the Bill should be passed; that the sheriff’s order of desertion simpliciter should be recalled; and that the complaint should be remitted to the sheriff with a direction to assign a fresh intermediate diet and trial diet.”