Bill of Advocation challenging sheriff’s decision to desert trial of serving soldier refused by Sheriff Appeal Court

About this case:

• Citation:
  [2022] SAC (Crim) 8
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Pyle

Respondent Ryan Cooper had been placed under special bail conditions preventing him from deploying until proceedings had concluded. The trial diet encountered frequent difficulties with the citation of Crown witnesses, all of whom were also serving soldiers.

The appeal was heard by Sheriff Principal Derek Pyle and Appeal Sheriffs Derek Hamilton and Wendy Sheehan. S Borthwick KC appeared for the Crown and F Mackintosh for the respondent.

Prejudice to the respondent

On 16 August 2021, the respondent pled not guilty to two charges relating to an alleged incident at a public house in Glasgow two days earlier. The complaint narrated that he had seized and touched the vagina of complainer X, also a serving soldier, over her clothing and punched her on the head to her injury. At the trial diet in December 2021, the court granted a joint motion to adjourn the trial due to the absence of an essential Crown witness and an outstanding request for disclosure.

At a further trial diet on 4 August 2022 the Crown moved to adjourn. The fiscal depute explained that the Crown had had previous problems contacting X, but she had been in touch to say that she and the other Crown witnesses were deployed to Germany and would not return until 15 October. The motion was opposed on the grounds that this was the third trial diet, the respondent had been subject to special bail conditions for a year, and, as the Crown witnesses were serving soldiers, the Army would ensure their attendance.

The sheriff refused the Crown motion and, on being advised that the fiscal depute had no further motion to make, deserted the trial simpliciter in terms of section 152(2) of the Criminal Procedure (Scotland) Act 1995. He was critical of the Crown’s performance throughout the prosecution, particularly their failure to take any steps once they became aware of the inability of the witnesses to attend the third trial diet, and concluded that the interests of the accused here outweighed those of the Crown and the public interest.

In submissions for the Crown, it was acknowledged that there had been issues with the prosecution, particularly the citation of witnesses and of the complainer X. It was averred that there had been no real prejudice to the respondent while there was clear and obvious prejudice to the complainer, and there had no systemic failure by the Crown.

Lackadaisical approach

Delivering the opinion of the court, Sheriff Principal Pyle began by observing: “It is a matter of concern that the Bill sets out circumstances which were not fully explained to the sheriff. Indeed, it is worse than that: it was only during close questioning by this court that other relevant circumstances were made known (for which the advocate depute had to seek instructions during the hearing) and, moreover, even then there were gaps which he was unable to fill.”

He continued: “In saying that, we do not wish this to be regarded as a personal criticism of the procurator fiscal depute. Nor do we criticise the advocate depute (a very senior one) who drafted the Bill. The advocate depute before us conceded that the Bill was prepared on limited information. We also accept that he was put in a difficult position by not being able to elicit from those instructing him answers to all the questions we posed.”

Addressing whether there had been systemic failure on the part of the Crown, he said: “Systemic failure is a difficult concept to identify from one case; indeed, by the fact that the court is concerned only with that one case it is probably impossible. The members of this court have many years of experience of sitting as sheriffs at first instance and can think of past examples of failures by the Crown in summary prosecutions. Equally so, however, they can recall examples of excellence. Nevertheless, it is possible to identify general themes which, if not systemic, are potentially so – and about which, we suggest, the Crown should also be concerned.”

He explained further: “In this case, even now we do not know whether or not all the Crown witnesses had been properly cited before the first intermediate diet. We suspect that postal citations had been sent, but had not been properly followed up. We also suspect that at the first trial diet no Crown witnesses were present. But that we have to speculate about that remains a matter of concern. This lackadaisical approach to providing proper information to the sheriff on the citation of witnesses continued to the second intermediate diet.”

Noting the continuing backlog of summary prosecution cases, Sheriff Principal Pyle said: “During the course of his submissions, the advocate depute described the charges as serious ones. We agree: if they were proved, there would have been two assaults by a male on a female, one sexual and the other involving punching on the face to injury. The fact that they are both serving soldiers is a further factor. But the seriousness of a charge should never be treated by the Crown, even if subconsciously, as a useful card to be deployed just to excuse wholesale failures in a prosecution.”

He concluded, refusing the Bill: “We must have regard to the rule of law that decisions of sheriffs should be scrutinised in the context of the information provided to them. To say otherwise undermines the principle that the decision to adjourn is primarily one for the court at first instance. It is not in the interests of justice that the Crown makes submissions in a slipshod manner to the court at first instance in the knowledge that it can all be resolved on appeal. On the information before him, the sheriff was well entitled to come to the conclusion he did.”