Woman charged with filming family in their home refused bills of advocation challenging trial adjournment

About this case:

• Citation:
  [2024] SAC (Crim) 3
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal S F Murphy KC

In three complaints raised by the procurator fiscal in Falkirk against Debbie Cumming, it was libelled that she had committed offences under the Criminal Justice and Licensing (Scotland) Act 2010 and the Criminal Procedure (Scotland) Act 2010, all relating to the same family. She argued that frequent adjournments to the trial diet were oppressive, and an adjournment granted in November 2023 ought not to have been granted.

The bills were considered by Sheriff Principal Sean Murphy, with Appeal Sheriffs Fiona Tait and Derek Hamilton. A Ogg, solicitor advocate, appeared for the complainer and A Prentice KC, advocate depute, for the Crown.

Finely balanced

In the first of three summary complaints, it was libelled that between 1 February 2021 and 29 June 2022 the complainer observed the McNiven family at their home in Grangemouth, including watching their son Kieran while he was in a state of undress and holding a mobile phone at them in such a manner that it appeared she was filming them. The second and third complaints libelled other conduct against the same individuals, and for convenience the complaints were called together.

On 27 July 2022 the complainer pled not guilty to the first complaint. A trial diet was fixed for 25 October 2022 but on the day a joint motion to adjourn was made based on unavailability of a Crown witness. Further adjournments were requested, and the date of trial moved to April 2023 and then to November 2023, sometimes at the instance of the complainer and sometimes the Crown, but usually because of the unavailability of Crown witnesses.

On 24 November 2023 the Crown moved for an adjournment of the trial diet as its witnesses were unavailable. The motion was opposed by the complainer. The summary sheriff allowed the adjournment on the basis that refusing the motion would unduly prejudice the interests of justice, noting she had no evidence to show that the Crown witnesses were unwilling to engage in proceedings.

For the complainer it was submitted that there was a trend for the Crown witnesses not to be available due to holidays, which resulted in the loss of six possible trial diets. No sheriff or summary sheriff would have reached the decision that the summary sheriff did. For the Crown it was submitted that the delays in coming to trial were fairly balanced between the parties and they were not so excessive as to amount to oppression.

Regrettable, not special

Delivering the opinion of the court, Sheriff Principal Murphy began by noting: “The essence of the complaint in the present case is the delay in bringing this matter to trial on account of the repeated adjournments. Not all of these were the responsibility of the Crown and on one particular occasion it was caused by the unavailability of the principal defence agent. Delay causes prejudice and is incompatible with summary justice but it does not otherwise strike at the heart of a fair trial in the way in which, for example, the pre-trial exclusion of a material report or witness for either Crown or defence might do.”

He continued: “Taking all of these factors into consideration we have reached the view that what occurred in this case to cause the delays, while very regrettable, does not reach the standard of being very special circumstances. Accordingly, we do not consider that the present bill is competent.”

Setting out the court’s view on the merits of the summary sheriff’s decision, Sheriff Principal Murphy said: “She clearly carried out the correct balancing exercise. She sought to mitigate the prejudice to the complainer by fixing a trial diet as soon as could be accommodated by the court on 22 December 2023. It is an unfortunate consequence of the bringing of this Bill of Advocation that the diet could not be met.”

He concluded: “The second and third complaints were effectively following the same course as the first one from 15 May 2023 onwards so that the same considerations apply to the bills relating to those complaints and we were not addressed separately in relation to any specific matter arising from either of those complaints. Accordingly we do not consider that the circumstances surrounding either of those bills was sufficiently special for them to be competent for the reasons given above.”

All three Bills of Advocation were therefore refused.