Criticisms of various actings by both the Crown and defence have been voiced by appeal judges in the High Court, in refusing a defence appeal against a sheriff's decision to extend by four months the 12 month limit for bringing the case to trial.

The indictment, against Allan McClymont, alleged three charges involving explicit sexual digital messages to a girl then aged 14, and making arrangements for her to travel to meet him with the intention of unlawful sexual activity, during August 2017; and one of possession of extreme pornographic images. A trial began on 18 September 2018 but was deserted following an adjournment on 27 September, the Appeal Court commenting that it remained “difficult to understand quite what the issue was which caused the case to be deserted”.

The issues centred round material said to have been recovered from the accused's and complainer's mobile phones. The Crown stated that material had not been recovered by it from the reporting authorities; the defence submitted that the case had come to be deserted because of a systemic failure on the part of the Crown. Observing that when the complaint about failure to disclose was made, both the procurator fiscal and the sheriff “lost sight of what the relevant issue was”, but that there was “no valid foundation” for the defence proposition that the Crown was obliged to disclose to the defence anything which had been recovered from either phone, the court held that no failure to disclose on the part of the Crown had been demonstrated.

It added: “Once the events of the pre-trial period and of the trial itself are seen in their proper light, it becomes obvious that, the decision to desert having been made, the only correct result would be to extend the 12 month time bar period.”

Delivering the opinion of the court, Lord Turnbull, who sat with Lord Justice Clerk Lady Dorrian and Lord Brodie, then commented on “a number of other issues of concern” highlighted by the circumstances of this case.

First, the sheriff had reported that the balloting of the jury did not take place until the afternoon of 18 September, because the Crown wished to commence the case with the reading of a joint minute that had not yet been typed. “This is incomprehensible and unacceptable”, Lord Turnbull stated. In this case the joint minute could have been prepared at an earlier stage; where that could not be done, “joint minutes ought to be prepared outwith court hours”.

In any event, there was no reason why the balloting of the jury should have been delayed. To keep a large number of members of the public waiting for some hours was “an unacceptable waste of their time. This sort of unnecessary delay undermines the court’s reputation and standing in the mind of the public and ought not to be repeated”.

Further, the fact that the defence had failed to lodge a statement as required by the statutory provisions appeared to have gone unnoticed by the four different sheriffs who presided over the case at different stages, including case management. 

It was also noted that counsel for the accused had moved the court to adjourn a previously assigned trial diet to allow for preparation time, and advised if this was not allowed he might have to withdraw from acting for the accused. “It is, in our view, entirely inappropriate for a defence representative to issue a threat of this sort as part of an attempt to secure the outcome of his choosing.”

Prior to the first trial being deserted, for various reasons a week had passed with no evidence being led. This was also “highly unsatisfactory”, particularly for what ought to have been a short trial: “consideration should always be given to the potential inconvenience to jurors and the potential disruption to the course of justice”.

At one stage the sheriff had been informed by the Crown that it had arranged to have the label productions uplifted from the court and taken to have the contents re-examined. “It is important that practitioners and judges remember that control over productions (and responsibility for their care) remains with the court. The productions are not under the control of the party lodging them and neither party has the right to remove productions without the express authority of the court”, Lord Turnbull concluded.

Click here to view the opinion of the court.