Note of Appeal against Conviction by by Daniel Alexander Robertson (High Court of Justiciary)

Factual and Procedural Background

On 25 January 2024, at the High Court in The City, the Appellant was convicted of the rape of two complainers, referred to as MM and AF, and sentenced to 7 years imprisonment. The appeal concerns whether the trial judge should have deserted the trial diet due to the Appellant’s apparent state during cross-examination, which allegedly affected his ability to properly complete his testimony and may have led the jury to draw adverse inferences regarding his credibility. The Appellant’s counsel argued that adjournments should have been granted to allow him to compose himself. The case involved multiple procedural complexities including Vulnerable Witness Applications (VWAs), applications under sections 259 and 275 of the Criminal Procedure (Scotland) Act 1995, and concerns about the Appellant’s fitness for trial.

The trial commenced after several preliminary hearings and postponements. AF was deemed unfit to testify fully, resulting in reliance on her recorded NHS 24 call, police statement, and a truncated commission. The Appellant’s fitness for trial was assessed by Prof MacPherson, who concluded he was fit but of low intellectual capacity, requiring simple language and breaks. The Appellant’s testimony was marked by interruptions, objections by his solicitor advocate during cross-examination, and emotional distress, including crying and refusal to answer certain questions. Multiple adjournments were granted, but motions to desert the trial diet were refused by the trial judge. The appeal challenges the judge’s refusal to desert the trial and the handling of the Appellant’s vulnerabilities during testimony.

Legal Issues Presented

1. Whether the trial judge erred in refusing to desert the trial diet due to the Appellant’s inability to properly complete his testimony and apparent vulnerability during cross-examination.
2. The appropriate roles and responsibilities of the judge, Crown, and defence in ensuring a fair and efficient conduct of sexual offence trials, particularly concerning vulnerable accused persons.
3. The extent to which adjournments or special measures should be granted to accommodate an accused’s vulnerabilities in trial proceedings.

Arguments of the Parties

Appellant's Arguments

• The trial judge erred by refusing motions to desert the trial diet despite the Appellant’s inability to properly complete his evidence due to vulnerability and distress.
• The solicitor advocate had only recently been instructed and was surprised by the fitness assessment; the Appellant required breaks and simple language, which were not sufficiently provided.
• The Appellant’s reactions—such as long pauses and inability to answer—were classic signs of vulnerability, as supported by references to case law and the Advocates Gateway.
• Failure to adjourn or provide special measures breached the Appellant’s rights and led to an unfair trial.

Respondent's Arguments

• Adjournment decisions fall within the trial judge’s discretion and should only be granted where necessary in the interests of justice.
• Desertion of a trial is a last resort, reserved for exceptional circumstances where unfairness cannot be remedied by lesser steps.
• The trial judge was best placed to assess the Appellant’s fitness and vulnerability and did not err in refusing to desert the trial.
• Objections by the Appellant’s solicitor advocate during cross-examination were ill-founded and misleading, undermining the Appellant’s position.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the procedural history and conduct of the trial in detail, emphasising the importance of readiness at the Preliminary Hearing stage and the need for timely disposal of preliminary issues such as fitness and vulnerable witness applications. The court noted that the late involvement of the solicitor advocate and subsequent late applications caused significant delays and inefficiencies.

The court accepted the expert’s assessment that the Appellant was fit for trial but recognized his low intellectual capacity and need for simple language and breaks. However, it was noted that no special measures were formally requested by the Appellant or his counsel, and the judge was not required to proactively assess vulnerability without application.

The court found that the solicitor advocate’s repeated interruptions and ill-founded objections during cross-examination were improper and misleading, negatively impacting the trial’s conduct. The judge’s instructions to the advocate to allow cross-examination to proceed were appropriate.

The Appellant’s emotional distress and refusal to answer certain questions were attributed by the judge to the lack of satisfactory answers rather than a psychiatric breakdown. The court found no material basis to conclude that the trial was unfair or that desertion was warranted, especially after multiple adjournments were granted to accommodate the Appellant.

The court underscored that desertion of a trial is an exceptional measure, reserved for situations where no alternative remedy can ensure fairness. Given the circumstances, the trial judge’s refusal to desert the trial was within sound judicial discretion.

Holding and Implications

The appeal is REFUSED.

The court upheld the conviction and sentence imposed at trial, affirming the trial judge’s management of the proceedings and assessment of the Appellant’s fitness and vulnerability. The decision reinforces the principle that desertion of a trial is a measure of last resort and that trial judges have broad discretion to manage vulnerable accused persons, provided that special measures are requested and appropriately considered. No new precedent was established, and the ruling primarily affects the parties by confirming the trial’s fairness and the propriety of the judge’s decisions.