Criminal Appeal Court issues opinion to clarify function of sifting judge

The Criminal Appeal Court has issued an opinion designed to highlight the point that a decision of a sifting judge must relate to the questions posed in a stated case and not to the content of any earlier application to the court.

The Lord Justice Clerk, Lord Carloway (pictured), observed that while there is provision for a sifting judge to grant leave to appeal upon a ground which is not stated in the note of appeal, and an equivalent provision for summary appeals, a decision at sift in a summary appeal must otherwise relate to the questions posed in the case presented to the High Court and not to the content of any original application to the court of first instance.

The issue arose in an application under section 180(9) of the Criminal Procedure (Scotland) Act 1995 by the appellant in FB v Procurator Fiscal, Aberdeen, after the appellant was sentenced to community payback order following upon her conviction in August 2013 for “wilfully causing unnecessary suffering or injury to a child”, in contravention of section 12(1) of the Children and Young Persons (Scotland) Act 1937, in respect of an incident in January 2012.

On 23 October 2013 the appellant lodged an application for a stated case, which contained six matters which she sought to bring under review.

The first (2a) stated that the sheriff had erred in failing to sustain the no case to answer submission, and the second (2b) appeared to relate to the corroborative effect of testimony from a doctor.

The third (2c) was that there was insufficient evidence that a crime had been committed, since there was a “realistic possibility” of an unknown cause of the injury, and the fourth (2d), again focussed upon sufficiency, was whether there was corroborated evidence of the appellant as the perpetrator of the injury.

The fifth (2e) was that it had not been proved that what was done was likely to cause unnecessary suffering etc., and thus, once more, a sufficiency of evidence point.

And the sixth (2f) was that the sheriff erred in finding the libel established beyond reasonable doubt, as there were, it was said, no “facta probanda” established from which an inference of intent could be drawn.

However, the sheriff framed only two questions for the High Court to address: firstly, on the basis of the evidence narrated, did I err in rejecting the submission by the appellant to the effect that there was no case to answer in respect of the charge libelled?; and secondly, on the facts stated, was I entitled to convict the appellant?”

In relation to the latter, the sheriff found as a fact that the appellant failed to adequately supervise the child, in consequence of which a quantity of hot liquid made contact with the child’s skin, resulting in her sustaining an injury.

When it came to the sift, the judge determined that the only arguable grounds of appeal are grounds 2a, 2e and 2f, after concluding that there was sufficient corroborated evidence that the injury was a scald and caused by hot liquid, before making further remarks specific to the “unarguability” of “grounds” 2b, 2c and 2d.

But the Lord Justice Clerk – sitting with Lady Dorrian and Lord Bracadale –observed that the problem with approach was that paragraphs 2a to 2f of the application were not grounds of appeal for determination by the High Court.

Issuing the opinion, Lord Carloway said: “They are matters specified in an application for a stated case which are effectively superseded, at least for sift purposes, by the stated case itself, which alone contains the questions for determination.

“The issue for the sift judge to determine was not whether the content of the application contained matters which might have formed an arguable challenge to the conviction but whether there were arguable grounds to support an appeal in relation to one or other of the two questions actually posed by the sheriff upon a consideration of the application and any adjustments proposed.”

In relation to the first question, the court granted leave to appeal as the first sift judge’s stated view was that ‘ground’ 2a, which related to whether the no case to answer submission was correctly repelled, was arguable.

“It will then be a matter for the appellant to determine what precise submissions to deploy in support of her position. These may include the matters contained in paragraphs 2b to 2d, even if the sift judge viewed them as unarguable in themselves,” the Lord Justice Clerk continued.

However, the court answered to the second question in the affirmative, standing the unchallenged findings in fact, and therefore did not grant leave in respect of that question.

Lord Carloway added: “That leaves the fact that the first sift judge has granted leave to argue the content of paragraph ‘2f’. The court has no power to reverse the grant of leave to appeal upon a ground stated by a sifting judge. If that judge considers that leave ought to be given in respect of a matter not contained in the stated case, then he/she may grant such leave.

“The appellant is therefore entitled to pursue this matter at the appeal hearing. Just how the court can or will deal with this at the hearing is not for this court to say.

“There is an obvious problem in that it relates to whether the sheriff erred in finding any necessary intent established. That is not a matter of sufficiency and there is no question posed to cover it. However, the court may (or may not) feel able to reach a conclusion on the matter on the basis of the findings in fact stated.”

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