Prison who dismissed solicitor during weapons possession trial loses appeal against conviction

About this case:

• Citation:
  [2025] HCJAC 22
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Beckett

Appellant Richard Mullen maintained that allowing the trial to continue following the dismissal of his solicitor and difficulties in instructing another constituted a miscarriage of justice. The Crown maintained that the circumstances did not merit desertion of the trial and the sheriff had fairly exercised his discretion.

The appeal was heard by the Lord Justice Clerk, Lord Beckett, with Lord Doherty and Lord Clark. Paterson KC, solicitor advocate, appeared for the appellant and Jessop KC, solicitor advocate, appeared for the Crown.

Bizarre behaviour

The appellant was tried for offences under section 49C(1)(a) of the Criminal Law (Consolidation) (Scotland) Act 1995 based on his possession of weapons in Perth Prison on three occasions across 2020 and 2021. The trial commenced on 7 February 2024 with a remote ballot carried out in the absence of the appellant. On 8 and 9 February a solicitor, Mr McLaughlin, appeared for the appellant, but instructions were withdrawn on 12 February following adjournment for the weekend. The sheriff adjourned again at 12:31pm to allow the appellant an opportunity to find new representation.

On 13 February, the appellant still had no lawyer, and so the sheriff adjourned until 15 February to allow him additional time. By 15 February the sheriff determined that the trial should proceed. At the appropriate points, the sheriff advised the appellant that he could give evidence and could address the jury, but he declined each opportunity. The jury proceeded to convict on 3 charges in the indictment, with a fourth charge withdrawn by the Crown at the close of its case.

The principal argument of appeal was that the sheriff ought to have deserted proceedings pro loco et tempore on 15 February rather than continue. He relied on a report from Dr Karen Bett, locum consultant psychiatrist, showing that he was suffering from mental health problems during the trial. Although the sheriff had not known that, the appellant did show some bizarre behaviour and knowledge of this would have led him to take a different approach.

For the Crown it was submitted that there was no justification before the sheriff to show the appellant was unfit for trial. The appellant had the benefit of professional representation throughout the Crown case before he chose to dismiss his solicitor, and had been given the opportunity to explain any concerns about the evidence and to give evidence.

Understood the impact

Lord Beckett, delivering the opinion of the court, outlined the sheriff’s comments on the grounds of appeal: “The sheriff, who had had a number of dealings with the appellant over a number of years, on considering Dr Bett’s report for the appeal, was doubtful of her conclusion that the appellant was displaying acute symptoms of a paranoid psychosis during the trial. At all times the appellant had appeared to understand the trial process and ultimately decided to refuse to engage with it.”

He continued: “Whilst the appellant’s behaviour was, at times, erratic it was not so problematic as to raise concerns. The appellant seemed to understand the possible impact of proceeding without legal representation together with the consequences of not giving evidence on his own behalf, subject to his right to remain silent.”

Considering whether desertion would have been appropriate, Lord Beckett said: “The sheriff was scrupulous to ensure that the appellant knew that he could give evidence and he chose not to. The sheriff offered the appellant the opportunity to address the jury and he chose not to. The sheriff provided the jury with oral and written directions at the start of the trial [and] repeatedly told the jury that the absence of evidence from the appellant did not assist the prosecution on whom the onus of proof on each charge continued to lie.”

He concluded: “However ill-advised the appellant’s actions were, there was no proper basis for the sheriff to desert the trial of his own accord. In any event, it was a matter for his discretionary judgement and we cannot criticise his exercise of it. The appellant’s trial was fair and there was no miscarriage of justice.”

The appeal was therefore refused.