High Court rules trial conducted without accused after ‘dirty protests’ resulted in miscarriage of justice

About this case:

• Citation:
  [2025] HCJAC 50
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Beckett

Brian McElwain, who was convicted of two serious sexual offences following a Crown motion under section 92(2) of the Criminal Procedure (Scotland) Act 1995, argued that the conditions required for the grant of a section 92 order were not met and, even if they were, the sheriff erred in his assessment of the necessity of the order. The Crown position was that the threatening and obstructive manner of the appellant justified the making of an order, and that authority for a new prosecution would be sought if the appeal was allowed.

The appeal was heard by the Lord Justice Clerk, Lord Beckett, with Lord Doherty and Lord Matthews. Beardmore, advocate, appeared for the appellant and Farrell, advocate depute, for the Crown.

Threatening and uncooperative

The appellant was fully committed on 4 August 2022 and indicted to a first diet at Livingston Sheriff Court in March 2023, but it was adjourned to allow the defence to investigate his physical and mental health. The case had a protracted procedural history, and in February 2024 the appellant dismissed his original solicitors. They notified the court that they understood that he would not agree to come to court to participate in proceedings. New solicitors were appointed for the appellant by the court on 18 April 2024.

In the days leading up to the trial diet fixed for 27 to 31 May 2024, the procurator fiscal depute advised that “proportionate force” should be used to bring the appellant to court if necessary. However, he was not brought to court on 27 May after threatening to assault officers and engage in a “dirty protest” if he were put into a van. The prosecutor invited the court to allow the trial to proceed in the appellant’s absence under section 92(2) of the 1995 Act. The sheriff did not immediately acquiesce but directed the jury be balloted for the following day.

On 28 May, prison staff reported that the appellant was “naked and had faeces on his hands” and GEOAmey, the contracting transporter, advised he would not be moved. The sheriff granted a warrant for the police to apprehend the appellant and bring him before the court, but when the case called on 29 May the prosecutor advised the sheriff that Police Scotland would need a minimum of 48 hours’ notice to assemble a team and secure a suitable vehicle. The section 92(2) motion was renewed and granted by the sheriff, and evidence began to be led that afternoon.

At the trial diet, defence counsel submitted that the inadequate resources of Police Scotland, GEOAmey, and HMP Addiewell was not a good enough reason to exclude the appellant from his trial. However, the sheriff likened the scenario before him to an anticipatory breach of contract and held that the appellant had presented as threatening and uncooperative. Properly construed, section 92(2) was wide enough to exclude him from trial.

On appeal it was submitted for the appellant that for the court to properly order an accused’s removal from trial, the relevant misconduct must occur during the course of the trial. For statutory purposes, the trial commenced when evidence began to be led. The sheriff’s order was therefore incompetent. The Crown submitted that the language of the Act ought to be interpreted purposively and there was no prejudice to the appellant in the circumstances.

Not present at all

Lord Beckett, delivering the opinion of the court, said of the preconditions required to engage section 92(2): “Two are explicit: first, misconduct occurring during the course of the trial, and second, the misconduct is such that the court’s view is that a proper trial cannot take place unless the accused is removed. That last word signals a third precondition, that the accused is participating in the trial in a place such that he can be removed.”

Noting that Covid-related legislation did allow for remote attendance, he added: “In this case the appellant was not attending remotely. He was not present at the trial at all. Accordingly, the statutory requirement expressed in section 92(1) was breached. Proceeding in the absence of the appellant was not authorised by section 92(2). Further, the appellant was remanded in custody and therefore under the control of the state and could be compelled to attend.”

Accepting that the sheriff had understandable motivation to resolve a prolonged procedure, Lord Beckett said: “What he should have done, despite the delay it would have caused, was to adjourn the trial until the warrant was executed and the appellant was brought to court. He was told this could be done within two days. He could also have explored whether the appellant could attend remotely from prison. Had he taken either of these courses, and the trial commenced, then if the appellant sufficiently misconducted himself, section 92(2) would have permitted him to remove the appellant and proceed with the trial in his absence.”

He concluded: “Suffice to say that we find that the conduct of the whole trial in the absence of the appellant, in breach of section 92(1), is not a mere procedural irregularity under section 300A that it would be in the interests of justice to excuse. In these circumstances, we are unable to do other than conclude that there was a miscarriage of justice.”

Having allowed the appeal, the court thereafter fixed a hearing for the parties to address the matter of disposal under section 118 of the 1995 Act.