Crown wins appeal against sheriff’s decision to refuse vulnerable witness application

Prosecutors successfully challenged a sheriff’s decision to refuse a vulnerable witness application made on behalf of a complainer in an assault case who said he was “terrified” of seeing the two woman accused of attacking him.

The application was opposed because it was lodged too late, but the Appeal Court of the High Court of Justiciary ruled that the lateness of the application had not caused the accused any prejudice and that there was a significant risk that the quality of the complainer’s evidence would be diminished unless he was allowed to give his evidence via video link.

Vicious assault

Lady Paton, Lord Malcolm and Lord Turnbull heard that the accused, Jennifer Cordiner, 19, and Hollie McKenzie, 20, were alleged to have carried out a vicious assault on the complainer James Clark, 32.

The indictment disclosed allegations that the accused assaulted Mr Clark at his home in Peterhead, struck him on the head with a glass bottle, stabbed him to the face with said glass bottle and thereafter punched and kicked him repeatedly on the head and body, all to his severe injury and permanent disfigurement.

Mr Clark, who had since moved out of Peterhead, sought to give evidence by CCTV from Cumbria, where he was now living.

Vulnerable witness

A written vulnerable witness application stated that he was terrified of returning to Peterhead and seeing the two accused, and that the quality of his evidence was “likely to suffer” if he was made to do so, but the application was opposed on two bases.

The first ground of opposition was that it was said that he had moved out of Peterhead because of another incident and not because of any matter involving the accused.

The second ground was that the application came too late, the written application having been lodged on 9 December 2016, yet the Crown having been aware of the problem since June 2016.

No cause shown

Ultimately the sheriff refused the application after concluding that “no cause had been shown that would allow this court to grant the Crown application”.

However, the Crown has appealed that refusal by Bills of Advocation.

Before the appeal judges, the advocate depute frankly accepted that the Crown had failed to lodge the written vulnerable witness application timeously, and said it was the result of an “administrative oversight”.

That was the only “cause” put forward in relation to the lateness of the Witness Application, and was the only cause which could be advanced in terms of the relieving provision in section 271C(4) of the Criminal Procedure (Scotland) Act 1995.

The appeal judges passed the bills and remitted the matter to the sheriff.

Public interest

Delivering the opinion of the court: “Allowing the appeal, the judges said there was In assessing the Bills, we note the following: first, a verbal intimation was given to the defence that a vulnerable witness application would be made. That verbal intimation was given in August 2016.

“Secondly, there is considerable public interest in bringing the alleged offence to court.

“Thirdly, in our view the witness, Mr Clark, does indeed (on the information before us), appear to be vulnerable.”

A letter from a general practitioner, which was before the sheriff, supported in full the averments made in the vulnerable witness application.

No prejudice

Lady Paton continued: “Fourthly, we consider that the sheriff’s report does not make clear whether he was taking a decision about the lateness of the application, or about the content of the application, (ie whether it contained sufficient material indicating that the witness was indeed vulnerable), or both.

“Fifthly, we have seen nothing in the sheriff’s report to suggest that a balancing exercise was carried out, for example, balancing the Crown’s ineptitude against the needs of the witness, prejudice to the defence (if any) and the interests of the administration of justice.

“Sixthly and finally, no actual prejudice to the accused has been drawn to our attention.”

She added: “In all the circumstances, while acknowledging a considerable degree of fault on the part of the Crown, it is our opinion that the lateness of the written application has not caused the accused any prejudice. Also we do not consider the precise reason for Mr Clark’s move to Cumbria to be material.

“What is important, in our view, is the fact there is a significant risk that the quality of Mr Clark’s evidence will be diminished by reason of his fear and distress in connection with giving evidence at the trial.

“We shall therefore pass the bills, and remit the processes to the sheriff with a direction to grant the vulnerable witness application and thereafter to proceed as accords.”