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[2017] HCJAC 53



Lady Paton

Lord Malcolm

Lord Turnbull


delivered by LADY PATON









Complainer:  Edwards QC, AD;  Crown Agent

First Respondent:  D McKenzie;  Iain Jane and Co, Peterhead

Second Respondent:  M C Mackenzie;  George Mathers & Co, Aberdeen

15 February 2017

[1]        In these cases, the accused (Jennifer Cordiner, now aged 19, and Hollie McKenzie, now aged 20) are alleged to have carried out a vicious assault on the complainer James Clark, aged 32.  The indictment discloses allegations that the accused assaulted Mr Clark at his home at 11D Love Lane, Peterhead, repeatedly punched and kicked him on the head, struck him on the head with a glass bottle, stabbed him to the face with said glass bottle and thereafter punched and kicked him repeatedly on the head and body, all to his severe injury and permanent disfigurement.  Both accused are said to have been on bail at the time.

[2]        Mr Clark has since moved out of Peterhead and indeed out of Scotland.  He lives in Cumbria, England.  He seeks to give evidence by CCTV from Cumbria.  There is a written Vulnerable Witness Application indicating that he is terrified of returning to Peterhead and seeing the two accused, and that the quality of his evidence is likely to suffer if he is made to do so.

[3]        The application was opposed on two bases:  one ground of opposition was that it was said that he had moved out of Peterhead because of another incident and not because of any matter involving the accused.  The second ground was that the application came too late, the written application having been lodged on 9 December 2016, yet the Crown having been aware of the problem since June 2016.  The relevant timetable of the events is set out in each Bill of Advocation.  Ultimately the sheriff refused the application.  In his report in each case he states:

“On the basis of the submissions before me, I concluded that no cause had been shown that would allow this Court to grant the Crown application”.


The Crown has appealed that refusal by these Bills of Advocation.


[4]        Before us, the advocate depute frankly accepted that the Crown had failed to lodge the written Vulnerable Witness Application timeously.  This had happened because of an administrative oversight (a bad one).  That was the only “cause” put forward in relation to the lateness of the Witness Application, and was the only cause which could be advanced in terms of the relieving provision in section 271C(4) of the Criminal Procedure (Scotland) Act 1995.

[5]        In assessing the Bills, we note the following:  First, a verbal intimation was given to the defence that a Vulnerable Witness Application would be made.  That verbal intimation was given in August 2016.  Secondly, there is considerable public interest in bringing the alleged offence to court.  Thirdly, in our view the witness, Mr Clark, does indeed (on the information before us), appear to be vulnerable.  I should add that a letter from a general practitioner dated 12 December 2016 was drawn to our attention.  That letter was not before the sheriff, but it supports in full the averments made in the Vulnerable Witness Application.  Fourthly, we consider that the sheriff’s report does not make clear whether he was taking a decision about the lateness of the application, or about the content of the application, (ie whether it contained sufficient material indicating that the witness was indeed vulnerable), or both.  Fifthly, we have seen nothing in the sheriff’s report to suggest that a balancing exercise was carried out, for example, balancing the Crown’s ineptitude against the needs of the witness, prejudice to the defence  (if any) and the interests of the administration of justice.  Sixthly and finally, no actual prejudice to the accused has been drawn to our attention.

[6]        In all the circumstances, while acknowledging a considerable degree of fault on the part of the Crown, it is our opinion that the lateness of the written application has not caused the accused any prejudice.  Also we do not consider the precise reason for Mr Clark’s move to Cumbria to be material. What is important, in our view, is the fact there is a significant risk that the quality of Mr Clark’s evidence will be diminished by reason of his fear and distress in connection with giving evidence at the trial. 

[7]        We shall therefore pass the Bills, and remit the processes to the sheriff with a direction to grant the Vulnerable Witness Application and thereafter to proceed as accords.