Woman fined £100 for homophobic remark has conviction quashed by Sheriff Appeal Court

About this case:

• Citation:
  [2025] SAC (Crim) 7
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Aisha Anwar

Ellen Donnelly was charged by the procurator fiscal in Paisley of a contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010, aggravated in terms of section 1 of the Hate Crime and Public Order (Scotland) Act 2021. She argued that it was inappropriate to leave such a significant part of the verdict to inference and accordingly there had been a miscarriage of justice.

The appeal was heard by Sheriffs Principal Aisha Anwar KC and Kate Dowdalls KC, with Appeal Sheriff David Young KC. A Ogg, solicitor advocate, appeared for the appellant and D Dickson KC, advocate depute, for the Crown.

Confused at the verdict

The Crown case consisted of evidence from the complainer and her friend LM, who gave evidence that the appellant had told her to “fuck off ya fat lesbian”. Both witnesses stated that the appellant’s friend SG, whom she called as a witness, was not there to hear the exchange. In her defence, the appellant accepted that she spoke to the complainer but denied making the slur and said that SG had been present at the time. SG’s evidence was that he had not heard the appellant make the slur alleged.

Having considered the evidence led by both the Crown and the appellant, as well as the closing submissions, the justice found the complainer and LM were both credible and reliable. She did not address the appellant or SG’s evidence nor explain her assessment of either. She convicted the appellant, who was fined £100 plus a £10 victim surcharge.

It was submitted for the appellant that any well-informed and impartial observer of the trial would have been confused at the verdict given by the justice. Her failure to provide any explanation for why she did not accept the evidence of the appellant and SG amounted to a clear error, citing among other cases Jordan v Allan (1989), in which a justice failed to make reference to the accused’s explanation of why he failed to stop at a red traffic light and the High Court held that his findings in fact could not be treated as made upon the whole evidence.

The advocate depute submitted that there was no requirement in Scots law for a trier of fact to explain the basis of their verdict in summary criminal proceedings. While an explanation of their verdict was preferable, a failure to provide an explanation in the course of issuing their verdict did not automatically lead to a miscarriage of justice having taken place. In Judge v UK (2011), the European Court of Human Rights held that there were sufficient safeguards in the Scottish framework which enabled an accused to understand the reasons for their conviction.

A function of due process

Delivering the opinion of the court, Sheriff Principal Anwar noted that the case was a straightforward factual dispute, and added: “On behalf of the Crown, it was submitted that the justice was only obliged to return a verdict. We do not agree. We accept that there is no express statutory requirement to provide reasons for a verdict following a summary trial. However, the giving of reasons is a function of due process. Article 6 of the European Convention on Human Rights obliges courts to give reasons for their judgments. The giving of reasons is generally implicit in the concept of a fair trial.”

She continued: “We are not persuaded that the dicta in Judge v UK can be applied to summary criminal proceedings. In Judge, the ECtHR was concerned with whether an absence of reasons for a verdict by a jury was incompatible with a right to a fair trial. The court held that it was not. It considered that there were sufficient safeguards in solemn proceedings for an accused to understand why he has been convicted. While in summary criminal proceedings, the prosecution and the defence make brief addresses to the presiding sheriff or justice, there is no charge and no general directions which might inform those present, including the accused, of the matters which require to be established to convict, the applicable legal principles or the correct approach to the evidence.”

Setting out what was required of a judge in summary criminal proceedings, the Sheriff Principal said: “In a case such as the present which turns entirely on witness testimony and the matter to be decided is a simple binary question brief reasons for preferring one account over another will normally suffice. It is likely to be enough to explain which witness was believed to be telling the truth and why the evidence of other witnesses was not considered credible or reliable. A reasoned judgment does not have to deal with every matter raised. However, it is important that the sheriff or justice demonstrates that they have weighed all of the evidence to enable the well-informed and impartial observer to understand that the verdict is not the product of an arbitrary, biased or selective assessment of the evidence.”

She concluded: “A well-informed and impartial observer would have been confused as to why the evidence of the appellant and her witness, SG, was rejected. Such an observer might have been left with the impression that the justice had erroneously attached greater weight to the evidence of the Crown witnesses, starting from the position that if she were persuaded they were telling the truth, she did not require to assess the evidence of the defence witnesses. While the starkly contradictory evidence as to what was said and who was present might have led to an inference that if one account has been preferred the other has been rejected, it does not assist the well-informed and impartial observer to understand why that it is so.”

The court therefore quashed the appellant’s conviction, having found that the justice erred in delivering her verdict.