Conviction quashed on sheriff's untested view of video
A sheriff erred in relying on video evidence in support of a different charge on a complaint to that spoken to by the complainer, without allowing parties the opportunity to make representations, the Sheriff Appeal Court has ruled.
Sheriff Principal Mhairi Stephen QC, Sheriff Principal Craig Turnbull and Appeal Sheriff Peter Braid gave the ruling in allowing an appeal by a man, CB, against one of two charges of which he was convicted at Dumfries Sheriff Court.
CB was found guilty of assaulting his former partner MB on 21 April 2018, and of a contravention of s 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 on 29 May 2018, aggravated by abuse of MB. The sheriff found that he had acted under provocation and admonished on both charges.
The evidence included video footage from MB's mobile phone, which MB stated, and it was not contested, was from the 29 May incident. The sheriff considered that the footage bore no relation to the circumstances of that incident, but was consistent with witnesses' descriptions of the assault on 21 April, and took it “as further corroboration of the assault”.
On appeal, CB challenged the sheriff's right to view privately the productions led in evidence, but before the court it was accepted that he was, following Hunt v Aitken 2008 SCCR 919.
It was also not in dispute that the sheriff erred in concluding that the footage was taken on 21 April, where only MB spoke to the footage, and given evidence that the parties' relationship had been volatile, the sheriff “was not entitled to make the leap of logic which he did and conclude that because the first footage did not show events of 29 May 2018, it must depict events of 21 April 2018”. Having rejected MB's evidence as to the date of recording, the footage should have played no further part in the sheriff’s deliberations.
However parties were at issue whether the sheriff erred in failing to allow them the opportunity to address him before reaching a conclusion on this issue. On that question Sheriff Principal Turnbull, delivering the opinion of the court, said: “Whilst, as observed by Lord Reed in Hunt v Aitken at para 17, a judge hearing a case is not obliged to provide parties with a list of his concerns about the evidence so that they can be addressed during submissions, the sheriff in this case went too far. He went far beyond harbouring a concern regarding the provenance of the first piece of mobile phone footage. He reached a conclusion he was not entitled to reach on the evidence; which neither party had invited him to reach; and upon which he had not been addressed. In a case, such as this, where there was no controversy between the parties as to the date upon which the relevant footage was recorded, before reaching a concluded view on what was essentially a frolic, the sheriff ought to have explained his thinking to parties and allowed them the opportunity to address him upon it.”
Given that the case against CB on the assault charge was “a finely balanced one”, the sheriff's error in using the footage to support that charge had led to a miscarriage of justice. However this did not vitiate his approach to the second charge.