Appeal against Conviction by Richard Mullen against HMA (High Court of Justiciary)

Factual and Procedural Background

The Appellant was convicted at Perth Sheriff Court on three counts of possessing offensive weapons within Perth Prison on separate occasions in 2020 and 2021. During the trial, the Appellant dismissed his solicitor and was unable to secure alternative legal representation. The trial proceeded with the Appellant unrepresented, and he declined opportunities to give evidence or address the jury. Psychiatric reports were submitted by both parties but were not central to the trial proceedings. The Appellant appealed his convictions on grounds of a miscarriage of justice, focusing on the claim that the trial should have been deserted when he was unrepresented and potentially unfit to stand trial.

Legal Issues Presented

1. Whether the trial sheriff erred in not deserting the proceedings when the Appellant was unrepresented and exhibited behaviour suggestive of mental health issues.
2. Whether the Appellant was unfit to stand trial due to mental disorder, thereby rendering the trial unfair and constituting a miscarriage of justice.
3. The appropriate application of the legal standards for fitness to plead and the court’s discretion to desert a trial pro loco et tempore.

Arguments of the Parties

Appellant's Arguments

• The Appellant contended that the trial should have been deserted when he was unrepresented, as continuing the trial under those circumstances caused a miscarriage of justice.
• Reliance was placed on psychiatric evidence, particularly from Dr Bett’s second report, suggesting the Appellant was suffering from active paranoid psychosis during the trial, impairing his ability to participate effectively.
• The Appellant argued that had the sheriff been aware of his mental health condition, the trial would not have proceeded and that his withdrawal of legal representation was a consequence of his illness.
• It was submitted that the scarcity of available solicitors made it unreasonable to expect the Appellant to secure alternative representation in the short time allowed.

Crown's Arguments

• The Crown maintained that trials should only be deserted in exceptional circumstances and where there is clear evidence of unfitness to stand trial.
• No evidence was presented at trial or before the sheriff to indicate the Appellant was unfit for trial; psychiatric assessments before trial did not raise fitness concerns.
• The Appellant was represented during the Crown case, had opportunities to give evidence and address the jury, and was given time to obtain legal representation after dismissing his solicitor.
• The sheriff, experienced with the Appellant’s behaviour, found no indication of mental disorder affecting fitness for trial during proceedings.
• The Crown emphasized the legal onus on the Appellant to prove unfitness on the balance of probabilities, which was not discharged.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Parracho (Paulo) v HM Advocate 2011 SCCR 257	Trial desertion pro loco et tempore only in exceptional circumstances.	Supported the position that ongoing trials should only be deserted as a last resort.
HM Advocate v RV 2017 SCCR 7	Criteria and discretion for deserting a trial.	Reinforced the exceptional nature of deserting a trial and the sheriff’s discretion in doing so.
HM Advocate v Brown and Foss 1966 SLT 341	Requirement of proof of unfitness for trial to justify desertion on grounds of illness.	Established that fitness to stand trial must be demonstrated before desertion on medical grounds.
James Fearn v HM Advocate (unreported)	Post-conviction challenge requires identifying an erroneous basis for trial approach.	Used to reject claims of miscarriage without showing error in trial management.
Grieve v Macleod 1967 JC32	Admission of guilt by explanation of motive related to possession of weapons.	Noted that the Appellant’s admission of creating weapons for protection was an admission of guilt.
Donnelly v HM Advocate 2009 SCCR 512	Interpretation of admissions during trial.	Supported the view that admissions of protective intent equate to guilt for possession charges.
Murphy v HM Advocate 2017 SLT 143	Fitness to stand trial established by expert evidence; unfitness can invalidate trial.	Distinguished from current case due to absence of expert evidence confirming unfitness.

Court's Reasoning and Analysis

The court carefully considered the procedural history and the psychiatric evidence presented. It noted that the Appellant was represented during the Crown’s case and that his solicitor raised no concerns about fitness for trial. The sheriff, familiar with the Appellant’s behaviour from prior dealings, did not observe symptoms during trial sufficient to question fitness. The Appellant was given multiple opportunities and time to secure alternative legal representation, which he failed to do. The sheriff also ensured the Appellant was aware he could give evidence and address the jury, both of which he declined.

The psychiatric reports presented conflicting views. Dr Bett’s later report suggested the Appellant had active psychotic symptoms during trial that impaired his defence conduct, yet she acknowledged the absence of contemporaneous psychiatric assessment. Dr Maior’s detailed and conventional assessment concluded the Appellant was fit for trial, with no evidence of mental illness impairing his capacity in February 2024. Dr Craig noted long-term mental health issues but did not opine on fitness. The court emphasized the legal burden on the Appellant to prove unfitness on the balance of probabilities, which was not discharged.

The court found no procedural or substantive basis to criticize the sheriff’s discretion in refusing to desert the trial. It underscored the importance of the sheriff’s direct observations and the absence of expert testimony at appeal to prefer one psychiatric opinion over another. The court noted that the Appellant did not formally claim unfitness at trial or meet the statutory criteria under section 53F of the Criminal Procedure (Scotland) Act 1995.

Overall, the court concluded that the trial was conducted fairly, and no miscarriage of justice occurred. The appeal was therefore refused.

Holding and Implications

The court REFUSED THE APPEAL.

The direct effect is that the Appellant’s convictions stand, having been found safe and fair despite his unrepresented status for part of the trial and the contested psychiatric evidence. No miscarriage of justice was established. The decision reaffirms the stringent requirements for deserting a trial and the onus on an accused to prove unfitness to stand trial by clear evidence. No new legal precedent was established beyond the application of existing principles to the facts of this case.