Appeal under section 194ZB(1) of the Criminal Procedure (Scotland) Act 1995 by Michael Stachan against His Majesty's Advocate (High Court of Justiciary)

Factual and Procedural Background

The Appellant was convicted in the Sheriff Court in the City on a summary complaint alleging a course of domestic abuse against Witness A between 15 September 2020 and 20 November 2022, and the charge was aggravated by bail. The sheriff imposed a 3-year community payback order with supervision and conduct requirements, 300 hours of unpaid work, and a 3-year non-harassment order. [Para 21][Para 22][Para 23][Para 24][Para 25]

The originally libelled complaint also included allegations that were later deleted by the sheriff, including taking Witness A’s bank card, car keys and car, threatening to send sexual images and videos to others, throwing her out of a house, and seizing her by the hair. The Appellant pled not guilty, the case went through several adjourned diets, and the Crown later sought to rely on Witness A’s out-of-court statements because medical evidence said she was not fit to give evidence. [Para 30][Para 31][Para 32][Para 33][Para 34][Para 35][Para 36]

The first section 259 application was refused because the issue of special measures had not been addressed. The Crown renewed the application with updated medical material addressing special measures such as a screen, supporter, live television link and evidence by commissioner; the sheriff granted it, convicted the Appellant after trial, and relied on the hearsay only where it was consistent with other witnesses. The Sheriff Appeal Court later held that the hearsay ought not to have been admitted, but that there was no miscarriage of justice. [Para 41][Para 42][Para 43][Para 46][Para 47][Para 48][Para 49][Para 50][Para 52][Para 54][Para 55][Para 56][Para 57]

Legal Issues Presented

1. Whether the sheriff was entitled under section 259 of the Criminal Procedure (Scotland) Act 1995 to admit Witness A’s hearsay statements, including whether the medical evidence sufficiently showed that she was unfit or unable to give evidence and whether available special measures had been properly considered. [Para 59][Para 61][Para 66][Para 68][Para 70][Para 73][Para 110][Para 118]
2. If the hearsay was wrongly admitted, whether that error caused a miscarriage of justice requiring the conviction to be quashed. [Para 59][Para 64][Para 74][Para 119][Para 122]

Arguments of the Parties

Appellant's Arguments

• The Sheriff Appeal Court was right to hold that the hearsay should not have been admitted, because the Crown’s medical material did not satisfy section 259 and a specialist mental-health report should have been produced. [Para 61][Para 62]
• The Appellant argued that the Crown had not adequately shown that evidence by commissioner or other special measures was a viable option, and that the GP’s evidence was insufficient for the statutory test. [Para 61][Para 62]
• He also argued that, once the hearsay was removed, it was speculative to say the sheriff would still have convicted on the remaining evidence, because the live evidence and hearsay were intertwined. [Para 63]

Respondent's Arguments

• The Crown argued that the sheriff properly considered the renewed section 259 application and the medical evidence, including the effect of special measures, and was entitled to find that the statutory conditions were met. [Para 66][Para 68][Para 70][Para 72][Para 73]
• The Crown further submitted that there was no miscarriage of justice because there was ample other evidence, the sheriff found the live witnesses credible and reliable, and she took a careful, discerning approach to the hearsay. [Para 74][Para 52][Para 57]

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by restating the common-law hearsay rule and the structure of section 259, including the requirement that the maker of the statement be unavailable because of bodily or mental condition and that the court be satisfied on the balance of probabilities. It also noted that the statutory scheme assumes consideration of special measures, including remote participation in commission evidence. [Para 77][Para 78][Para 79][Para 88][Para 89][Para 91][Para 94][Para 96][Para 102][Para 103][Para 105]

Applying that framework, the court held that the Sheriff Appeal Court had read into section 259 evidential requirements that are not there. The statute did not require a psychiatrist or other specialist to give evidence on soul and conscience in every case; what mattered was whether the material before the sheriff was capable of satisfying her, on the balance of probabilities, that Witness A could not give evidence in any competent manner. [Para 110][Para 114][Para 115][Para 116][Para 117]

The court accepted that the sheriff was entitled to rely on the CMHN letter and the detailed second GP letter together, especially because the GP had been told about the available special measures and addressed why those measures would still trigger Witness A’s PTSD and worsen her anorexia nervosa. The court therefore disagreed with the Sheriff Appeal Court’s conclusion that the section 259 conditions were not met. [Para 111][Para 112][Para 113][Para 116][Para 118]

On miscarriage of justice, the court held that even if it had agreed with the Sheriff Appeal Court about inadmissibility, the appeal would still fail. The sheriff had expressly found the live Crown witnesses credible and reliable, and the hearsay was not the sole basis for conviction; the wrongful admission or exclusion of evidence does not automatically produce a miscarriage. [Para 119][Para 120][Para 121][Para 122]

Holding and Implications

Appeal refused. The conviction stood, because the sheriff was entitled to admit the hearsay under section 259 and, in any event, there was no miscarriage of justice. The decision applies existing hearsay and miscarriage principles to the facts; it does not announce a new rule. [Para 117][Para 118][Para 119][Para 120][Para 121][Para 122]