Sifting judges should address sheriff's questions: appeal court
The sifting judge considering summary criminal appeals should address the questions posed by the sheriff and not the matters in the application for a stated case, the High Court has affirmed.
Lord Justice Clerk Carloway, sitting with Lady Dorrian and Lord Bracadale, emphasised that the application was superseded by the stated case and "ought not to form any material part of the judge’s sift decision".
The court was dealing with an appeal by a woman referred to as FB, who was convicted under s 12 of the Children and Young Persons (Scotland) Act 1937 after an incident when a child was scalded. Her application for a stated case sought to bring six matters under review, but the sheriff simply posed the questions whether he erred in rejecting a submission of no case to answer, and whether on the facts stated he was entitled to convict. The sifting judge considered that three of the original matters stated were arguable.
Lord Carloway said that if the sheriff failed to pose an appropriate question to cover issues raised in the application, the applicant had an opportunity to pose such a question by way of adjustment. The questions eventually posed, following adjustment, might be significantly different from the matters specified in the original application for a stated case, perhaps due to a change in position by the applicant. The judge's decision had to be solely on the content of the stated case.
Standing an unchallenged finding that FB failed adequately to supervise the child, as a consequence of which hot liquid made contact with the child's skin, the sheriff's second question had to be answered in the affirmative. The court accepted the judge's view in relation to the arguability of one ground relating to the first question. In relation to another matter not reflected in a question stated but in which the judge granted leave to argue, the court stated:
"The appellant is therefore entitled to pursue this matter at the appeal hearing. Just how the court can or will deal with this at the hearing is not for this court to say. There is an obvious problem in that it relates to whether the sheriff erred in finding any necessary intent established. That is not a matter of sufficiency and there is no question posed to cover it. However, the court may (or may not) feel able to reach a conclusion on the matter on the basis of the findings in fact stated."