Applicant: L Kennedy; Rubens, Lochgilphead

Respondent: A Prentice QC (sol adv) AD; the Crown Agent

13 March 2013

[1] On 30 October 2012, at Dornoch Sheriff Court, the applicant was convicted of a breach of the peace; a statutory breach of the peace under section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 and police assault contrary to section 41(1)(a) of the Police (Scotland) Act 1967. An application has been presented to allow the lodging of a late Bill of Suspension, challenging that conviction. The basis of the Bill is that it is maintained that, during the last day of the trial whilst the applicant's mother was giving evidence on behalf of the applicant, a police officer, who was acting as the sheriff's bar officer, sat in the jury box and distracted and intimidated the witness, while she was giving evidence, by staring at her, laughing in some way and shaking his head in disbelief. This, it is said in the Bill, resulted in the applicant's mother being unable to give evidence of her son's uninjured condition before his encounter with the police. It is said that no one in the courtroom noticed this behaviour other than those directly involved, namely the police officer and the witness. In particular, the matter was not observed by the sheriff, the procurator fiscal, the defence agent, or the applicant.

[2] Shortly after the conviction the behaviour was reported by the witness to the applicant's agent. However, the agent did not raise the matter with the procurator fiscal or the sheriff on the basis that he considered that the proper course was for the witness to report it as a complaint against the police. Nothing, therefore, was done about the matter in open court, albeit that the case was adjourned for sentence until 24 December 2012.

[3] The Bill is very late, having been presented on 25 February 2013. The court requires to consider two matters. The first is whether an adequate explanation has been proffered as to why the Bill is so late. The second is to determine whether there is any merit in the allegations, such that the Bill would be likely to succeed in suspending the conviction. So far as the former is concerned, the court does not consider that an adequate explanation has been advanced for the Bill being tendered so late. Bills are, by their very nature, ex parte applications designed to be an efficient manner in which to challenge and rectify instantly verifiable irregularities, particularly those of a procedural nature, in the immediate aftermath of their occurrence. In this case the subject matter of the complaint was something which ought to have been drawn to the sheriff's attention as soon as possible so that, amongst other things, he could have taken appropriate action.

[4] The Crown have told the court that the witness did in fact give evidence that she did not see any injuries on her son before he had left her company prior to his involvement with the police. Although the defence have not conceded that that is the case, no substantial challenge to that report has been made. In these circumstances the court does not consider that there is a case presented in the Bill which, if it proceeded to a hearing, would be likely to result in a successful challenge to the conviction. The court has had regard to the various affidavits about the conduct of the police officer lodged by the applicant. It has noted in particular that the police have upheld the witness's complaint of "incivility"; the officer having admitted smiling at the witness during the course of her evidence. However, it is difficult to see how that could have had a material bearing on the testimony being given by the witness. In these circumstances the court is not at all persuaded that a prima facie case meriting the quashing of a conviction has been set out.

[5] The court will accordingly refuse this application to allow an extension of time in which to lodge the Bill.

DL