Sheriff’s ‘draconian’ decision to desert domestic abuse trial successfully challenged by Crown

The sheriff deserted the trial after the Crown had repeatedly failed to disclose the telephone records of the appellant and his wife, but the Criminal Appeal Court ruled that the “obvious remedy” was not the “draconian” one chosen, but a court order upon the haver to produce the records.

The Lord Justice Clerk, Lord Carloway, sitting with Lord Brodie and Lord Drummond Young, heard that the respondent Francis Donaldson was facing 16 charges of assault, breach of the peace, assault to injury and danger of life, and contraventions of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010.

All the alleged offences involved two women, one of whom was his wife, and were said to have occurred between 2001 and 2013.

However, the respondent claimed that the allegations have all been “fabricated” in order to achieve financial leverage in negotiations in his pending divorce proceedings, and maintained that there were incriminating text messages between his wife and her sister confirming this “malicious intent”.

The respondent had initially appeared on petition charged with nine offences on 30 December 2013 and was indicted to a First Diet on 20 November 2014.

The trial fixed for 8 December 2014 was postponed until 30 March 2015 on the motion of the respondent, to allow him further time to prepare and the 12 month time-bar was extended.

At a continued First Diet on 11 March 2015 the trial was adjourned again, this time to 26 May 2015, again on the motion of the respondent, to allow yet more time to prepare, with the time-bar period once more extended.

The defence preparations included the proposed recovery of the telephone records of the appellant’s wife and of his own mobiles, both of which had been seized by the police.

The respondent’s agent had written repeatedly to the procurator fiscal seeking these records, to no avail or even acknowledgement of some 15 letters sent.

Eventually, a specification of documents was lodged, but the hearing on the specification fixed for 20 March 2015 was continued twice on the basis of a Crown undertaking to produce the records, which had been in police custody.

On 6 May 2015, the respondent moved for the trial to be deserted pro loco et tempore, on the basis that the records had not yet been produced, and the application was ultimately granted, with the time-bar period extended to 31 August 2015.

The respondent’s representatives had a meeting with the Crown thereafter and were assured that the material would be available when the case was re-indicted.

A fresh indictment, containing seven additional charges, cited the respondent to a First Diet on 18 August, with a trial diet fixed for 31 August 2015.

The Crown had received a pen drive containing the relevant information in advance of service of the new indictment, but did not consider that the information could be disclosed in this form.

Rather, it would have to be printed out and then redacted to exclude confidential material – such as communications between the respondent’s wife and her legal advisers in the divorce – which would involve reviewing some 600 pages.

The exercise had not been completed by the date of the First Diet, and the respondent moved the sheriff to desert the indictment simpliciter, on the basis that the Crown had given an undertaking to disclose the records, and they had still not done so.

The Crown sought a continued diet to allow them time to disclose the records prior to the trial or at least to provide an explanation for the failure to disclose them.

The sheriff deserted the indictment simpliciter, but the Crown lodged a Bill of Advocation challenging the sheriff’s decision.

In his report to the appeal court, the sheriff explained that the Crown bore the “primary responsibility” for the failure to disclose the records and that their repeated failure supported the inference that they were either unwilling or unable to disclose material that the defence had contended was necessary for a fair trial.

Further, a previous indictment had been deserted pro loco et tempore because of the failure to disclose the records and another desertion pro loco et tempore would inevitably have involved a fourth extension to the time-bar period. As a fair trial required to take place within a reasonable time, this extension would be “unwarranted”.

The sheriff stated that, although he was not referred to the authorities, he considered that any future trial would be “unfair”.

Passing the Bill, the appeal judges said the problem with the sheriff’s reasoning was that “the obvious remedy in the situation which had arisen was not desertion, but an order upon the Crown (or other haver), to produce the records”.

Delivering the opinion of the court, the Lord Justice Clerk said: “The appropriate course, whether in the earlier or the later proceedings, was for the court at the First Diet to ascertain the time required for production of the material, to set a clear time table for that production and to fix a trial diet a reasonable time beyond the expiry of that period.

“The court ought not to have countenanced the unnecessary churn of First Diets. In deciding instead, on the second indictment, that the appropriate remedy was a draconian one, the sheriff erred. There was no suggestion that the material could not be obtained by court order or otherwise. That being so, there was no reason for any subsequent trial to be classified as inevitably unfair.”