Sheriff Appeal Court quashes simpliciter desertion of delay-hampered stalking trial

About this case:

• Citation:
  [2026] SAC (Crim) 10
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Temporary Sheriff Principal B Mohan

Repeated issues with witness and solicitor availability led the sheriff in an Edinburgh stalking trial to desert the case with permanent effect. Arguing that that decision had been made without proper basis, the Crown brought a bill of advocation before the Sheriff Appeal Court.

The bill was heard by temporary sheriff principal Brian Mohan, with John Keenan KC, advocate depute, appearing for the Crown and Ann Ogg for the respondent.

Difficult procedural history

Charged with stalking under section 39 of the Criminal Justice and Licensing (Scotland) Act 2010, the respondent faced trial at Edinburgh Sheriff Court. After three consecutive trial diets failed to proceed on account of various reasons (first, an unavailable defence solicitor; second, the complainer’s childcare problems; and, third, the Crown’s failure to cite witnesses), a fourth diet was called for 25 March 2026. At that diet, yet more complications intervened. Illness and a college exam respectively prevented two witnesses from attending court, while further childcare difficulties threatened to prevent the complainer from remaining in court past 1pm.

Although the procurator fiscal depute moved that the trial be part-heard, the respondent was successful in opposing that motion. A further motion for adjournment was likewise refused. In response, the Crown moved to desert the matter pro loco et tempore; i.e., for the time being and without prejudice to the possibility of a renewed  prosecution. That motion was again refused, with the sheriff instead deserting the matter simpliciter; i.e., permanently.

A bill of advocation, challenging the sheriff’s decision to desert the case simpliciter, was subsequently brought by the Crown and heard before the Sheriff Appeal Court. The Crown argued that even if a failure to arrange childcare would have resulted in the complainer being unable to give her evidence in full, there remained sufficient time nevertheless to hear most of it. Citing Renton & Brown, it submitted that the sheriff had no material before him to justify the finding of inevitable unfairness to the accused required to ground desertion simpliciter.

In reply, the respondent noted the Crown witnesses’ “unsatisfactory” behaviour in failing at multiple diets to be ready and available to give evidence. With the vulnerable respondent having had the case “hanging over” him for nearly 18 months, it could not be said that no reasonable sheriff could have reached the decision to desert the case simpliciter.

No proper basis for desertion simpliciter

Beginning his decision, Temporary Sheriff Principal Brian Mohan observed: “In light of the submissions the first question to be addressed is whether the test articulated in HMA v Fleming (2005) falls to be applied to the decision of the sheriff to desert simpliciter … In this case no authorities were cited to the sheriff about which form of desertion would be appropriate. However, it appears that the sheriff did apply himself to the test in Fleming. In his report at [34] he records his conclusion that any future trial would be ‘inevitably unfair’. We have concluded that the sheriff was correct to apply the test derived from the decision in Fleming. We can identify no cogent reason for applying different tests as between summary and solemn proceedings. In each case the effect is the same: it is not open to the Crown to re-raise proceedings.”

Turning to the question of whether the sheriff was entitled to reach the conclusion he did, he noted: “At the time the motion to part-hear the evidence was made (around noon) several hours of court time remained available that day. The complainer had attended to give her evidence for the second time. The Crown was confident that she was engaged in the process (she had spent part of the morning reviewing her witness statement) … Although the depute in court had relayed the information that the witness requested to leave by 1.00pm due to childcare difficulties, the depute understood these difficulties were surmountable (for example by suggesting that her father – the second Crown witness present – took care of the childcare while she remained to give her evidence). Had that route been taken, it may very well have been the case that the complainer could have completed her evidence that day. While this inevitably would have led to the case being only part-heard, this is a common occurrence which could have been easily accommodated by the court. It is against that backdrop that the sheriff’s decision to desert simpliciter requires to be reviewed.”

Temporary Sheriff Principal Mohan continued: “Against the background of the unfortunate procedural history of the case the sheriff decided that it would be unfair to the respondent to allow the matter to proceed, particularly as he had been judged to be a vulnerable witness. He also took into account that the passage of time would affect the quality of the evidence at any future trial. It is not clear on what basis the sheriff formed the latter view nor, apart from the strain that a further delay in the resolution of proceedings would cause, why it would be unfair to the respondent to allow the matter to proceed.”

Assessing the sufficiency of the case’s procedural history to ground the sheriff’s decision to desert simpliciter, he concluded: “In our view those factors are insufficient in combination to yield the conclusion that any future trial would inevitably be unfair … The respondent will be entitled to all the usual protections at any future trial diet. He will be able to challenge the evidence of the Crown witnesses and make submissions to the court in relation to the assessment of that evidence. There was no material before the sheriff to demonstrate that such an exercise would be unduly hampered by the delay which has already ensued. There was no suggestion of missing evidence or other forensic disadvantage which might impact the fairness of the trial. In short, there was no proper basis on which to reach the conclusion that a future trial would be inevitably unfair and thus on which to desert the complaint simpliciter.”

The bill was accordingly passed and the decision to desert simpliciter recalled.