Appeal under section 194ZB(1) of the Criminal Procedure (Scotland) Act 1995 by Michael Stachan against Procurator Fiscal, Edinburgh (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 the Complainer between 15 September 2020 and 20 November 2022, including repeated shouting and derogatory remarks, damage to property, and various assaults causing injury; the charge was also aggravated by bail status. [Para 18][Para 21][Para 22]

The sheriff sentenced the Appellant to a community payback order with supervision and conduct requirements for three years, 300 hours of unpaid work, and a three-year non-harassment order in favour of the Complainer. [Para 24]

The Appellant appealed to the Sheriff Appeal Court, arguing that hearsay statements made by the Complainer to a police officer had been wrongly admitted under section 259 of the Criminal Procedure (Scotland) Act 1995; the Sheriff Appeal Court accepted that the hearsay had been admitted in error but held that there had been no miscarriage of justice. [Para 25]

The Appellant then challenged that disposal in the Appeal Court. [Para 26]

The complaint originally contained additional allegations, but the sheriff deleted some of them before verdict, and the case proceeded through several adjourned trial diets while the Crown pursued an application to admit the Complainer’s hearsay evidence because she was said to be unfit to give evidence owing to mental health conditions. [Para 29][Para 34][Para 35][Para 36]

Legal Issues Presented

1. Whether the Sheriff Appeal Court was correct to hold that the Complainer’s hearsay statements ought not to have been admitted under section 259 because the medical evidence and special-measures analysis were insufficient. [Para 35][Para 41][Para 55][Para 62][Para 67]
2. Whether, if the hearsay had been wrongly admitted, the Sheriff Appeal Court was correct to hold that there was nevertheless no miscarriage of justice. [Para 55][Para 58][Para 63][Para 74]

Arguments of the Parties

Appellant's Arguments

• The Sheriff Appeal Court was right to say the hearsay should not have been admitted, because the medical material did not satisfy section 259 and should have come from a mental health specialist rather than a GP. [Para 62]
• The Crown had not shown that evidence by commissioner, or other special measures, was a viable option for the Complainer. [Para 62]
• If the hearsay was excluded, the court could not safely assume the sheriff would still have convicted on the direct evidence alone, so the wrongful admission of hearsay caused a miscarriage of justice. [Para 63][Para 64]

Respondent's Arguments

• The sheriff had properly considered the renewed section 259 application and the medical material showed that the Complainer could not give evidence, even with special measures. [Para 67][Para 73]
• Section 259 required proper medical evidence, but not necessarily a consultant or psychiatrist, and the sheriff was entitled to accept the GP and community mental health evidence. [Para 68][Para 69][Para 73]
• There was no miscarriage of justice because the sheriff relied on strong direct evidence from other witnesses and treated the hearsay cautiously. [Para 74]

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by restating the common-law prohibition on hearsay and the statutory scheme in section 259, which allows hearsay only where the court is satisfied that the maker will not give evidence for a qualifying reason, the statement would be admissible as direct evidence, the maker was competent when the statement was made, and the statement is properly proved. [Para 77][Para 79][Para 81][Para 97]

It also noted that, where the issue is challenged, the statutory conditions are determined on the balance of probabilities, and that section 259(2)(a) covers unfitness or inability to give evidence by reason of bodily or mental condition. [Para 90][Para 91][Para 93][Para 96]

The court accepted that the sheriff had to be satisfied by suitable medical evidence explaining why the Complainer could not give evidence competently, including with special measures, but held that the statute does not require a consultant, psychiatrist, or any specific type of expert evidence. [Para 113][Para 119][Para 122]

Reading the two medical letters together, and in the context that the Complainer had been informed about the available special measures, the court held that the sheriff was entitled to find that section 259 was met. [Para 114][Para 116][Para 117][Para 123]

The court rejected the Sheriff Appeal Court’s view that the medical evidence was too weak, too unspecific, or insufficiently directed to special measures; it said those were barriers not found in the statute. [Para 55][Para 68][Para 118][Para 119]

On miscarriage of justice, the court held that the sheriff had treated the hearsay cautiously, relied on it only where it matched other evidence, and accepted the direct witnesses as credible and reliable; accordingly, even if the hearsay had been excluded, the conviction would still have stood on the remaining evidence. [Para 51][Para 53][Para 58][Para 124][Para 125]

Holding and Implications

APPEAL REFUSED. The court upheld the conviction and held that the section 259 application had been properly granted on the evidence before the sheriff. [Para 123][Para 124]

The direct effect was that the Appellant’s conviction remained in place. The opinion also indicates that section 259 can be satisfied by combined GP and community mental health evidence where it addresses special measures and the witness’s ability to testify, and that a hearsay error will not automatically amount to a miscarriage if the remaining evidence independently supports conviction. [Para 123][Para 125]