Onus and Evidence for Deserting Trial & Fitness for Trial: Mullen v HMA [2025] HCJAC 22

Introduction

This appeal arises from convictions of Richard Mullen for having offensive weapons in Perth Prison on three occasions (18 October 2020; 11 February 2021; 10 April 2021) under section 49C(1)(a) of the Criminal Law (Consolidation) (Scotland) Act 1995. Mullen dismissed his solicitor mid‐trial, remained unrepresented, and declined to testify or address the jury. He later contended that his emerging paranoid psychosis and absence of legal representation rendered the trial unfair and constituted a miscarriage of justice. The High Court of Justiciary Appeal Court (Lord Justice Clerk Lord Beckett, Lord Doherty and Lord Clark) refused the appeal on 2 May 2025, reaffirming principles on deserting trials pro loco et tempore and on fitness for trial under section 53F of the Criminal Procedure (Scotland) Act 1995.

Summary of the Judgment

The Appeal Court held that:

The sheriff properly exercised discretion by declining to desert the trial in the absence of evidence that Mullen was unfit to proceed.
Mullen bore the burden to prove unfitness for trial; he did not discharge it because no expert testified and conflicting reports (Dr Maior v Dr Bett) were not tested in evidence.
The trial was fair: Mullen was represented during the Crown case, the court repeatedly informed him of his rights (to call witnesses, give evidence, address the jury), and jurors received full directions on burden and standard of proof.
No miscarriage of justice occurred; appeal refused.

Analysis

Precedents Cited

Parracho (Paulo) v HM Advocate 2011 SCCR 257 at para [9]: Trials should be deserted pro loco et tempore only in exceptional circumstances.
HM Advocate v RV 2017 SCCR 7 at para [12]: Desertion is a last resort when fairness cannot otherwise be secured.
HM Advocate v Brown & Foss 1966 SLT 341: To desert a trial for health reasons, the accused must be shown unfit for trial.
Murphy v HM Advocate 2017 SLT 143: Where multiple psychiatrists gave evidence, the court found the appellant unfit and quashed conviction.
Grieve v Macleod 1967 JC 32; Donnelly v HM Advocate 2009 SCCR 512: Admissions made to psychiatrists may constitute admissions of guilt.

These authorities shaped the court’s approach: desertion requires a high threshold and is discretionary; fitness for trial must be established on the balance of probabilities and assessed against statutory criteria.

Legal Reasoning

The court’s reasoning progressed in three main stages:

Discretion to Desert: The sheriff may desert proceedings only if circumstances make it impossible to proceed fairly. Observations of Mullen’s conduct did not satisfy that test. Mullen was given repeated opportunities to secure new representation, gave no indication of incapacity during evidence, and declined to engage by choice.
Onus & Fitness for Trial: Under section 53F of the Criminal Procedure (Scotland) Act 1995, unfitness for trial means incapacity, due to mental or physical condition, to participate effectively. The court must consider understanding of charges, ability to follow proceedings, communicate with counsel, etc. Mullen bore the burden to prove unfitness on the balance of probabilities, rebutting the presumption of fitness.
Evidential Sufficiency: The appellant relied heavily on a post‐trial report by Dr Bett suggesting psychotic symptoms at trial, but he did not call any expert to testify. The Crown’s report by Dr Maior, unchallenged in evidence, concluded Mullen was fit for trial. The court refused to prefer one expert report over another without oral evidence and cross‐examination.

Impact

This decision clarifies and reinforces several important points:

Court judges should desert trials for unrepresented or unfit accused only in exceptional, clearly evidenced circumstances.
An appellant challenging fitness for trial must present contemporaneous medical evidence, call experts to give oral evidence, and satisfy the statutory criteria.
Post‐trial psychiatric reports, without testing in court, are unlikely to overturn convictions where the trial judge observed no incapacity at the time.
Procedural fairness demands that accused persons be informed of their rights—and their voluntary refusal to participate will not automatically render a trial unfair.

Future cases will likely reference this judgment when assessing whether an unrepresented accused’s mental state justifies desertion or quashing of conviction.

Complex Concepts Simplified

Deserting a Trial pro loco et tempore: The judge halts proceedings temporarily when fairness is at risk (for example, due to an accused's incapacity). It is a discretionary, exceptional measure.
Fitness for Trial (Section 53F): An accused is “fit” if, despite any mental or physical condition, they can understand charges, follow proceedings, communicate with counsel, and participate effectively.
Onus on the Appellant: It is presumed an accused is fit; the appellant must disprove fitness for trial on the balance of probabilities with credible, contemporaneous evidence.
Joint Minute: A procedural agreement between Crown and defence parties setting out agreed facts or admitted evidence, streamlining aspects of the trial.

Conclusion

The Appeal Court’s decision in Richard Mullen v HMA [2025] HCJAC 22 underscores that desertion of proceedings and findings of unfitness for trial require strict, evidenced justification. The judgment reaffirms the discretionary nature of trial desertion, the statutory criteria for fitness for trial under section 53F, and the appellant’s burden to adduce expert evidence. By refusing to accept untested psychiatric reports, the court sent a clear message: allegations of incapacity must be supported by contemporaneous assessments and tested in open court. This ruling will guide practitioners and judges when addressing mental fitness issues and unrepresented accused in future criminal proceedings.