[2008] HCJAC 57

Lord Reed

Lord Carloway

Lord Clarke

Appeal No:XJ1776/05


delivered by



the reference by


In the case







Act: Shead; Drummond Miller

Alt: P Ferguson QC, AD; Crown Agent

9 October 2008


[1] On 26 August 2005 the complainer was convicted at Inverness District Court of a charge of assault. The background was a dispute between him and his neighbours which had already been the subject of civil proceedings. The complainer was found to have punched one of his neighbours, Mr Latham, on an occasion in November 2004. He was fined £200. Following his conviction, the complainer lodged an application for a stated case. A draft stated case was prepared by the justice in accordance with section 178(1) of the Criminal Procedure (Scotland) Act 1995. Adjustments to the draft case were proposed by the Crown, and a hearing was fixed for 17 October 2005. Between the lodging of the application for the stated case and the date of the hearing, the complainer parted company from his legal representatives following a dispute over the payment of fees. The complainer failed either to lodge any adjustments or to intimate that he had no adjustments to propose, as required by section 179(1) of the 1995 Act. He did not appear (and was not represented) at the hearing. The appeal was therefore deemed to have been abandoned, as required by section 179(3). In consequence, the draft case was not adjusted or altered.

[2] The complainer subsequently applied to this court under section 181 of the 1995 Act for further time to comply with the requirements of section 179(1). The application was refused on 9 December 2005. In refusing the application, the court stated that insufficient reasons had been given for the delay (of more than five weeks) in applying for further time. The court added that the application for the stated case in any event sought to re-open questions of fact which were for the justice at the trial.

[3] The complainer subsequently applied to the Scottish Criminal Cases Review Commission. In November 2006 the Commission decided to refer the case to this court under section 194B of the 1995 Act. After hearing counsel for the appellant at a procedural hearing, the court directed that the appeal should proceed as a bill of suspension. A bill was then presented, which adopted the reasons given by the Commission for the referral in accordance with section 194D(4) of the 1995 Act. The court then issued an order in the usual terms, authorising service of the bill upon the Crown and upon the clerk to the District Court, and directing the clerk to obtain a report from the justice and to transmit it to court. Answers to the bill were then lodged on behalf of the Crown, and a report was provided by the justice. The appeal then proceeded to a hearing.

A preliminary point

[4] At the outset of the hearing the court raised with parties a question concerning the relationship between the statutory provisions concerned with appeals in summary proceedings and those concerned with references by the Commission. The statutory requirements, such as those imposed by section 179(1), apply regardless of whether the appellant may have a meritorious ground of appeal: they are intended to ensure that summary justice is dealt with expeditiously. Where an appellant has failed to comply with the requirements of section 179(1) within the statutory time limit, Parliament has directed that the appeal must be deemed to have been abandoned, subject only to the court's exercise of its discretionary power to allow further time under section 181. The court's exercise of its discretion, in the interests of justice, is not dictated by an assessment of the merits of any ground of appeal. The interests of justice include ensuring that summary cases are dealt with expeditiously and without undue demands on the resources of the court. Those interests are not well served by an approach which too readily excuses failures to comply with the statutory requirements.

[5] Against that background, the question of interest to the court was whether, in a case where the statutory requirements had not been complied with and the court had refused to allow further time, those statutory provisions could be circumvented, and effectively set at naught, by means of an application to the Commission and a subsequent referral to the court, or whether (and if so, how) the appellant's failure to comply with those statutory provisions should be taken into account: for example, by the Commission (in the exercise of its discretion to refer under section 194B, or in its consideration under section 194C of whether a miscarriage of justice might have occurred, or of whether it was in the interests of justice that a reference should be made), or by the court (in its consideration of whether there had been a miscarriage of justice).

[6] It was apparent at the hearing that neither of the parties had considered this question and that, if the court were to be addressed on it, the hearing would have to be adjourned. Neither party sought an adjournment: although the Crown acknowledged that there was an issue which required to be considered, they did not seek to argue it in the present case. Bearing in mind the minor nature of the present case and the length of time which had already elapsed, the court did not consider it appropriate to adjourn the case so as to be addressed on the question. In the circumstances, we shall express no view upon it.

The first ground of appeal

[7] The bill, like the Commission's statement of its reasons for referral, is concerned with two matters. The first concerns the terms of the draft case. In that regard, the Commission cite in their statement of reasons the criticisms which the court made of a stated case in Jordan v Allan 1989 S.C.C.R. 202, and continue:

"44. A similar assessment can be made in the present case (see above at paragraph 9 for the content of the stated case). These (sic) do not include findings or comments in relation to: the credibility or reliability of witnesses; whether and why witnesses were believed or not; any reason(s) for the final decision on the applicant's special defence of self defence. While it is noted that the stated case is in draft form, it is unclear on what basis the justice made his decision to convict the applicant.

45. In these circumstances, the Commission has concluded that the stated case, in its draft form, does not meet the requirements of section 178(2) of the 1995 Act, and that the findings in fact cannot be treated as having been made on the whole evidence."

That reasoning is adopted in the bill, which adds that, since the draft case does not disclose a properly reasoned basis for conviction, the complainer has been denied the fair hearing to which he is entitled at common law and under article 6(1) of the European Convention on Human Rights.

[8] So far as these matters are concerned, the bill appears to us to be misconceived. The requirements of section 178(2) apply to "a stated case"; and a case is not "stated" until the process of adjustment and alteration of the draft case has been completed: section 179(7). Here, there was only a draft case: the justice never stated a case, because the appeal was deemed to have been abandoned. Authorities such as Jordan v Allan are similarly concerned with stated cases, not draft cases. Draft cases are commonly deficient: that is one of the reasons why section 179 provides an opportunity for the parties to propose adjustments and for the judge himself to make any alterations to the draft which he desires. In the present case, the Crown had prepared adjustments, and had requested the justice to expand on his reasoning so as to address the deficiencies noted by the Commission. It was only as a result of the complainer's failure to comply with the statutory requirements, and the consequent abandonment of the appeal, that the justice was unable to respond to that request. In his report to this court, however, he has provided a much fuller account of his reasoning. Subject to the matter with which the second ground of appeal is concerned, which we discuss below, that reasoning was not criticised by counsel for the appellant.

[9] In these circumstances , the criticism based on sentence 178(2) of the 1995 Act is misplaced, and there is no question, so far as this matter is concerned, of the complainer having been denied a fair hearing.

The second ground of appeal

[10] In order to understand the second matter with which the referral and the bill are concerned, it is necessary to say something about the evidence at the trial. The background to the assault was a dispute as to whether Mr and Mrs Latham ( and other neighbours) were entitled to use a road running through the complainer's garden in order to go to and from their house. On the morning in question, Mrs Latham was driving down the road in order to go to work. Her husband went with her in order to open and close gates at various points along the road. The complainer emerged from his house in order to video film them. According to a statement which he gave to the police and which was led in evidence in the course of the Crown case, the purpose of the filming was to demonstrate that speed bumps which he had had installed on the road through his garden did not impede the Lathams' use of it. When Mrs Latham stopped the car at a gate, and her husband went to open it, the complainer went to the rear of the car and attempted to measure the ground clearance below the exhaust pipe of the Latham's car. Mrs Latham became upset and told the complainer to move away from the car. Mr Latham went between the complainer and the car, and words were exchanged. Mr Latham moved away and the car proceeded to a further gate, which Mr Latham opened. Mrs Latham then drove to her work. As Mr Latham walked back up the road towards his house, the complainer cut across his path. Further words were exchanged, and the complainer punched Mr Latham in the face, causing him to fall to the ground. Mr Latham returned home and called the police. The complainer claimed to have acted in self-defence.

[11] One of the witnesses led by the Crown was the complainer's wife. She gave evidence about the background to the incident. She also gave evidence about the incident itself, which the justice narrated as follows in the draft case:

"Mrs Hunt ran upstairs to get daughters ready for school and glanced out the window. Mr Hunt and Mr Latham were in close proximity standing side by side facing up the hill towards the Latham's house. This was beside the steps near the outhouse. Mr Latham was closer to the house and nearer to me. Suddenly and violently he threw his elbow up at my husband's face, my husband ducked out of the way and the elbow missed. My husband instinctively reacted and punched him on the face...On cross examination, a photograph of the house was produced (this photograph is enclosed with the productions). An "X" was marked on the spot where the incident happened. The distance from the upstairs window to the spot was approximately 15 metres (45 feet) and she had a clear view of the assault. (On examination of the photograph, I did not think it was possible that Mrs Hunt could have seen the incident as the view would have been obscured by outbuildings)."

[12] In relation to this matter, the Commission state:

"48. The comment made by the justice about Mrs Hunt's line of vision is not contained within the findings in fact of the stated case. It appears to the Commission, however, that the justice made his own determination, on the basis of the photograph, as to whether or not the applicant's wife could see the relevant incident. No such suggestion had been made by the Crown. Effectively, the justice made his own assessment of the evidence in private, amounting to the hearing of evidence outwith the presence of the applicant.

49. In terms of section 92(1) of the Criminal Procedure (Scotland) Act 1995, 'no part of a trial shall take place outwith the presence of the accused'....

50. In Brims v MacDonald 1993 SCCR 1061, the complainers were tried on summary complaint for dangerous driving. In the course of the evidence a witness described part of the locus as being a 'blind bend'. Photographs of the bend were produced in cross-examination in order to challenge that evidence. The sheriff examined the photographs and could not see that they contradicted the witness. He stated that he intended to visit the locus at lunchtime and invited the parties to accompany him if they wished to do so. The sheriff visited the locus, but no one went with him. The complainers were convicted and appealed to the High Court by bills of suspension on the ground that the sheriff's visit to the locus constituted an irregularity which vitiated the proceedings.

51. It was held, insofar as relevant to the instant case, that the sheriff, by going to the locus to determine whether the evidence of the witness regarding the bend should be accepted, was in effect taking evidence, and that meant that part of the proceedings were being carried on outwith the presence of the complainers and that that was a serious irregularity which vitiated the proceedings. Their convictions were set aside, and authority given for a fresh prosecution.


53. The Commission is of the view that the applicant's case is on all fours with Brims, supra, in that the justice effectively took evidence when he made his own assessment of the photograph. In the applicant's case, the irregular exercise in fact-finding related to a material issue was carried out by the court itself (per Adam v HM Advocate 2006 SCCR 354, 362 at para 28). That amounts, in the Commission's view, to part of the trial taking place outwith the presence of the applicant.....

65. ...[T]he Commission is of the view that the justice erred in law by taking into account matters about which no evidence was led at trial, in contravention of section 92(1) of the 1995 Act."

This reasoning is adopted in the bill, which adds two further criticisms: first, that since the justice had "conducted his own analysis of the photograph", he was "turning himself into a witness" and "relying on evidence not led at the trial"; and secondly, that the complainer had been deprived of a fair trial, since "those then representing the complainer had no opportunity to address the justice's concern in submission".

[13] In his report to this court, the justice states that he found the evidence of Mr and Mrs Latham to be entirely credible and reliable, and disbelieved the contrary evidence of the complainer and his wife. In relation to the evidence of Mrs Hunt, in particular, he states:

"Although the complainer's evidence as to self defence was corroborated by his wife Kathryn Hunt, who was called as a Crown witness, I was of the opinion that her evidence was given in a stilted, rehearsed manner and I did not consider her to be a reliable witness. I also took into account when assessing her evidence her relationship to the complainer. I consider that I am entitled to consider the demeanour of a witness to assess the veracity of their evidence. In this case I chose not to believe Mrs Hunt's evidence ..... [A]lthough I made reference to the photograph in my draft report and expressed the opinion that I did not think it was possible that Mrs Hunt could have seen the incident from the upstairs window I should have made it clear that I did not accept this evidence, in relation to her viewpoint, since I did not consider her to be a credible witness. I accept that I should have referred to the manner in which she delivered her evidence rather than referring to the photograph. My intention was to indicate how little emphasis or importance could be placed on the photograph or the credibility of this witness. I took full account of Mrs Hunt's evidence but did not find her a credible or reliable witness."

[14] In relation to this matter also, we reject the contentions in the bill. Considering first the points put forward by the Commission, we observe that section 92(1) of the 1995 Act is applicable only to solemn proceedings, and therefore is not germane to the present case. The equivalent provision for summary proceedings is contained in section 153(1). More fundamentally, we are unable to understand the suggestion that part of the trial took place outwith the presence of the accused. The justice's consideration of the evidence, including the photograph, took place during the trial. The accused was present throughout. Far from being "on all fours" with Brims v MacDonald, the present case is plainly distinguishable: the irregularity in Brims was, as the Commission note, that the sheriff had in effect taken evidence when he visited the locus on his own in order to test the accuracy of evidence which had been given by a witness. We also observe that, as Lord Justice-Clerk Gill stated in Adam v HM Advocate at paragraph 32, the approach adopted in Brims seems to conflate two distinct ideas, namely that the court engaged in evidence-gathering and that in doing so it conducted part of the proceedings outwith the presence of the accused. The same conflation of ideas appears to be implicit in the Commission's approach, notwithstanding its citation of Adam.

[15] The Commission were in our view mistaken also in equiparating (at paragraphs 48 and 53) the assessment of evidence with the hearing or taking of evidence. The assessment of evidence is a proper and essential function of a judge. The justice cannot be criticised for performing that function. Since the assessment of evidence is a mental process, the justice cannot be criticised for performing that function "in private", as the Commission describe it (at paragraph 48). It is unnecessary to labour the distinction between that process and the hearing or taking of evidence in private.

[16] The argument advanced by counsel for the complainer, that the justice had turned himself into a witness was based on the decision in Gray v HM Advocate 1999 SCCR 24. In that case, witnesses had given evidence describing the accused as the person shown in a video recording of a robbery which was played during the trial. It was common ground before the court that it would have been competent for the jury to view the recording in the course of their deliberations, in order to assist them in assessing the evidence of the witnesses who had identified the accused from it, but not so that they could decide for themselves whether they could identify the accused from it. Since the case proceeded on a concession, it is of little value as a precedent; but, for what it is worth, it provides no support for counsel's criticism of the justice in the present case. Mrs Hunt had given evidence that she had seen the incident. The photograph was put to her by the complainer's solicitor, and she was asked to confirm that she had a clear view. She did so. In that situation, rather like the jury in the case of Gray, the justice was entitled to look at the photograph in order to assess the credibility and reliability of Mrs Hunt's evidence that she had a clear view. As Lord Justice General Hope said, again in relation to video tapes, in Steele v HM Advocate 1992 JC 1 at page 5:

"[E]xcept in cases where some particular expertise is required to understand what is going on, the jury are free to make up their own minds about what the tape reveals".

The case of Brims v MacDonald incidentally offers a closer parallel, in that it was a case which concerned photographs, produced in order to challenge evidence given by a witness who had described the locus as a blind bend. The sheriff examined the photographs and could not see that they contradicted the witness. He then visited the locus to see for himself, as we have mentioned. The visit to the locus was held to be an irregularity; but there was no suggestion that the sheriff had acted improperly in examining the photographs and considering whether they contradicted the witness. Such a suggestion would have been absurd.

[17] Counsel's final argument was that it had been procedurally unfair for the justice not to disclose his doubts about Mrs Hunt's evidence: since the Crown had not challenged specifically that aspect of her evidence (although her credibility and reliability in general had been challenged), the complainer's solicitor had had no opportunity to address the issue in his closing submissions. We are unable to accept that contention. A judge hearing a case is not obliged to interrupt the proceedings whenever he has doubts about the credibility or reliability of a piece of evidence; nor is he obliged to provide the parties with a list of his concerns about the evidence so that they can be addressed during submissions.

[18] Finally, we would observe that, in the light of the justice's report, this issue appears in any event to have been of no practical significance. Mrs Hunt's evidence was rejected, root and branch, on the basis that she was not a credible witness.


[19] In the circumstances, we shall refuse to pass the bill.