Introduction

This appeal concerned a fundamental rule of Scottish criminal procedure: that a solemn (jury) trial must proceed in the presence of the accused. The appellant, Brian McElwain, was convicted in his absence of two serious sexual offences (allegedly committed in 2006/7 and 2015) following a sheriff’s decision to proceed under section 92(2) of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”). The appellant, remanded in custody throughout, repeatedly refused to attend court and threatened disruption. The sheriff treated this as “anticipatory” misconduct sufficient to exclude him ab initio. The appeal challenged both (i) the competency of invoking section 92(2) before trial had commenced and (ii) the necessity and proportionality of the order in light of alternatives (compelling attendance by warrant or enabling remote attendance).

The court allowed the appeal, reaffirming the peremptory nature of section 92(1) (the presence rule) and strictly confining the section 92(2) exception to circumstances of misconduct during the trial when the accused is actually present (physically or, where lawfully permitted, remotely) and can be “removed.” The court further clarified that the modern practice of conducting the jury ballot remotely and before evidence is led does not, of itself, breach section 92(1) where the accused is represented and the trial has not yet “commenced” in the statutory sense.

Summary of the Judgment

• Core holding on section 92(2): Section 92(2) cannot be used to start and conduct an entire solemn trial in the accused’s absence. Its text imposes three preconditions:
  1. the accused’s misconduct occurs during the course of the trial;
  2. the court concludes a proper trial cannot take place unless the accused is removed; and
  3. the accused is in a position such that he can be removed (which presupposes actual presence—physically or, where permitted, remotely).
  None was satisfied because no evidence had been led and the accused was never present; the sheriff’s “anticipatory misconduct” approach was wrong in law.
• Section 92(1) breach and miscarriage of justice: Conducting the whole trial in the accused’s absence contravened the peremptory rule in section 92(1). Departures from that rule “will generally, but not invariably” constitute a miscarriage of justice. On these facts, a miscarriage occurred. The Crown’s attempt to recast the error as a “procedural irregularity” excusable under section 300A failed.
• What should have happened: The sheriff should have adjourned to permit execution of the warrant (with Police Scotland indicating a minimum lead time) or explored lawful remote attendance from prison. Once the trial properly commenced, any in‑court misconduct could thereafter have justified removal and continuation under section 92(2).
• Section 92(2A) inapplicable: The “absconding after substantial evidence” route to proceeding in absence (section 92(2A)) was unavailable: no evidence had been led against the appellant before he failed to appear.
• Remote jury ballots before evidence: Commencing the ballot process in the accused’s absence does not, without more, vitiate proceedings. The trial has not “commenced” until evidence is led (Lindsay v HM Advocate), and, where the accused is represented, no prejudice arises at that earlier administrative stage.

Analysis

Precedents and Authorities Cited

• Hume’s Commentaries (vol II, pp 269–270): The historic common law requires the accused’s personal presence “from first to last” in a jury trial (save for exceptional continuations). This is the bedrock principle which section 92(1) restates.
• R v Jones [2003] 1 AC 1 (per Lord Rodger of Earlsferry): Although an English case allowing trial in absence at common law, Lord Rodger’s obiter provides an accurate historical account of the distinct Scottish position—Scotland’s legislative scheme is more restrictive.
• Drummond v HM Advocate 2003 SCCR 108: Even brief exclusion of the accused during a substantive segment of proceedings can constitute a miscarriage absent certainty of no possible prejudice. The case demonstrates the stringent approach to presence.
• Lindsay v HM Advocate 2005 1 JC 332: For section 92(1) purposes, “trial” commences when evidence is led. This underpins the court’s conclusion that remote jury balloting prior to evidence does not trigger the section 92(1) prohibition.
• Aitken v Wood 1921 JC 84: Early authority affirming that absence during substantive parts of trial breaches the presence rule—cited to illustrate the long pedigree of the principle.
• HM Advocate v Welch 2006 SCCR 87: Responsibility to secure the attendance of the accused lies with the Crown and the court, a point reinforced when the accused is in custody and the court can compel attendance by warrant.
• Barclays Mercantile Business Finance Ltd v Mawson [2005] 1 AC 684: The Crown invoked purposive interpretation, but the court held that purpose cannot override the plain textual limits of section 92(2) and the peremptory rule in section 92(1).
• Bertino v Italy [2024] 1 WLR 1483: Strasbourg jurisprudence confirms that Article 6 does not absolutely forbid trials in absence, but the domestic statutory scheme in Scotland is determinative and more restrictive.
• HM Advocate v Dailly (1997, unreported): Offered little assistance; it concerned an adjournment in the accused’s absence with representation, not the commencement of an entire trial in absence.
• Clarkson v HM Advocate 2024 JC 345 and the Preliminary Hearings e‑Bench Book: Emphasised robust case management—trial should generally be fixed even where fitness issues are being explored, and preparatory steps should not be allowed to drift.
• Coronavirus (Recovery and Reform) (Scotland) Act 2022, sch 1, para 6(6)–(12): Enables remote attendance where otherwise required to attend; critically, it allows “presence” to be satisfied remotely, which in turn makes “removal” under section 92(2) conceptually possible from a remote location after the trial has begun.

Legal Reasoning

1) The textual limits of section 92(2): The court identified three prerequisites embedded in the provision: (a) misconduct must occur “during the course of his trial”; (b) the court must consider that a proper trial cannot take place unless he is “removed”; and (c) the concept of “removal” presupposes the accused’s actual participation in the trial (now potentially satisfied by lawful remote presence). In this case, the trial had not started (no evidence had been led) and the accused was never present physically or remotely. The sheriff’s “anticipatory breach” analogy could not circumvent these statutory conditions.

2) The peremptory rule in section 92(1): Section 92(1) restates the common law. Departures are strictly confined to subsections (2) and (2A). In solemn proceedings, the legislature has not adopted the broader “trial in absence” model available in summary cases (sections 150A and 153). The appeal court characterised section 92(1) as peremptory: a departure will generally amount to a miscarriage unless it can be said with certainty that no prejudice could possibly have arisen—an exacting standard not met here.

3) Section 92(2A) not engaged: The “absconding after substantial evidence” route is narrow and explicitly conditioned on evidence having already “been led which substantially implicates the accused.” That did not occur here; indeed the problem was the very commencement of the trial.

4) Warrant and remote attendance were the correct tools: The appellant was remanded; the state could compel attendance. The sheriff had earlier preserved the indictment by warrant. With reasonable notice (Police Scotland required ca. 48 hours), attendance could have been compelled. Alternatively, the sheriff should have considered lawful remote attendance from prison. Once present and the trial began, any genuine in‑trial misconduct could then have justified removal and continuation under section 92(2).

5) Section 300A could not cure the error: The Crown argued the breach was a “procedural irregularity” excusable in the interests of justice. The court disagreed. Conducting the whole trial in contravention of the peremptory presence rule is not the kind of error contemplated by section 300A(5). Nor would excusing it be in the interests of justice.

6) Remote jury balloting and trial commencement: The court’s postscript clarifies that, in the era of remote balloting, the “start of a jury trial” can be administratively staged before the moment of evidential commencement. Lindsay confirms the trial has not “commenced” for section 92(1) until evidence is led. Where the accused is represented, it can be said with certainty that no prejudice arises at the ballot stage: nothing the accused could competently do then is foreclosed later.

Impact and Future Implications

• Boundary re‑drawn with precision: This judgment cements that section 92(2) is not a licence to commence solemn trials in absence as a response to refusal to attend. Misconduct must occur after the trial has begun, and the accused must be present (physically or lawfully remotely) to be “removed.”
• Operational practice for sheriffs and the Crown:
  • Compel attendance by warrant when an accused in custody refuses to attend, allowing sufficient time for logistics (e.g., Police Scotland’s minimum notice and suitable transport).
  • Explore lawful remote attendance facilities from prison where available under the 2022 Act.
  • Only once the trial has commenced, and if in‑trial misconduct prevents a proper trial, consider section 92(2) removal and continuation.
  • Section 92(2A) remains available only where the accused absconds after substantial incriminating evidence has already been led in his presence.
• Witness and juror interests: The court acknowledges the strain on vulnerable witnesses and jurors from delays but emphasises that expediency cannot override the statutory presence rule. Future case management must build in contingency for compelled or remote attendance rather than attempting to proceed in absence.
• Clear divergence from English law: R v Jones permits trial in absence at common law in England and Wales. In Scotland, absent legislative reform, solemn trials require the accused’s presence subject only to the tightly bounded statutory exceptions.
• Appeal consequences: Breaches of section 92(1) of this gravity will ordinarily amount to a miscarriage of justice. Section 300A is unlikely to salvage convictions where an entire trial has been conducted in breach of the presence rule. The Crown may consider seeking authority for a retrial under sections 118(1)(c) and 119, but that is a separate question for disposal.
• Remote jury ballots: The court’s express approval of remote/administrative balloting before evidence, where the accused is represented, gives practical assurance to courts using two‑stage jury empanelment procedures.
• Case management message reinforced: Echoing Clarkson v HM Advocate and the PH e‑Bench Book, early and disciplined management is essential. Where fitness issues arise, trials should nonetheless be fixed, with conversion to an examination of facts if appropriate. Avoid unnecessary pre‑trial diets and ensure medical assessments are not allowed to drift.

Complex Concepts Simplified

• Peremptory rule: A rule so strict that departures will almost always be fatal to the proceedings unless one can say with certainty that no prejudice could possibly have occurred. Section 92(1) is such a rule.
• When does a trial “commence”? For section 92, a trial commences when evidence is led. Administrative steps like jury balloting, even if remote, do not amount to commencement.
• Section 92(2): Permits removal and continuation in absence only if the accused, while present at a trial that has already begun, misconducts himself to such an extent that a proper trial cannot otherwise proceed.
• Section 92(2A): Allows continuation if, after substantial incriminating evidence is led, the accused fails to appear. It does not permit starting a trial in the accused’s absence.
• “Removed” implies presence: The power to “remove” presupposes that the accused is participating in the trial—traditionally by attending in court. Under pandemic‑era reforms, lawful remote attendance can also count as “presence.”
• Procedural irregularity (section 300A): A curable error in the conduct of proceedings (e.g., calling or adjourning a diet improperly). It cannot be used to excuse holding an entire trial in breach of the peremptory presence rule.
• In cumulo extended sentence: A single extended sentence covering multiple offences, comprising a custodial term plus an extension period for public protection.
• Examination of facts (sections 54–55): A special procedure where an accused is unfit for trial; not engaged here because there was no finding of unfitness.

Practical Guidance Emerging from the Decision

• Before trial:
  • Fix a trial diet promptly; do not allow first‑diet proceedings to drift (Clarkson; PH e‑Bench Book).
  • If fitness is in issue, pursue medical/psychological reports without delay; fix a trial that can be converted to an examination of facts if required.
  • Anticipate logistical constraints with GEOAmey/Police Scotland; build in notice times for warrants and transport.
• At trial:
  • If the accused refuses to attend, adjourn and execute a warrant to compel attendance; consider remote attendance facilities where lawful.
  • Do not invoke section 92(2) until the trial has begun and the accused is present, and only if in‑trial misconduct prevents a proper trial.
  • Ensure representation; if necessary, appoint a solicitor under the statutory provisions to protect the accused’s interests during any temporary absence lawfully ordered.
• Jury balloting: Conducting remote/administrative balloting before evidence is led is permissible, provided the accused is represented and no prejudice arises. The trial still “commences” only when evidence begins.

Conclusion

McElwain v HMA robustly restates the Scottish principle that solemn trials must take place in the accused’s presence, with only two narrow, tightly regulated statutory exceptions. Section 92(2) is not a vehicle for launching a trial in absence based on predicted misconduct. The accused must be present (physically or lawfully remotely), the trial must have begun, and only then can in‑trial misconduct justify removal and continuation. The decision also offers important practical confirmation that remote jury balloting before evidence does not offend section 92(1) when the accused is represented, reflecting modern two‑stage trial management.

For practitioners and judges, the message is clear: where an accused refuses to attend, courts must use the powers to compel or enable attendance—by warrant or lawful remote means—before any resort to section 92(2). Expediency in the face of witness vulnerability and logistical pressure cannot displace the peremptory presence rule. Should Parliament wish Scotland to move closer to the English common‑law position on trials in absence, that is a matter for legislative amendment, not judicial expansion of section 92(2). Until then, McElwain is the authoritative statement that commencing a solemn trial in the accused’s absence is incompetent and will ordinarily amount to a miscarriage of justice.