Two recent cases raised similar issues with regard to summary appeals against conviction by way of stated case.
In Donnelly and Walsh v PF Edinburgh  HCJAC 19, the decision of the sifting judges granting leave to appeal on “ground 2” in the stated case was criticised. A similar point was raised by the Court in FB v PF Aberdeen  HCJAC] 14. Put briefly, the grounds of appeal in a stated case are not those specified in the application for stated case. Rather, the grounds of appeal are the questions submitted for the opinion of the court. In effect, the application is superseded by the stated case, the purpose of which is to focus the issues for determination of the appeal.
In FB, the Appeal Court considered an application for leave to appeal at the second sift, the first sift Judge having refused leave on some of the “grounds.” The application for stated case contained six distinct matters which the appellant sought to bring under review. However, the stated case contained only two questions for the opinion of the court. No attempt was made to adjust the stated case to include all the points raised in the application. Although some of the matters raised in the application could be dealt with under one of the questions, others could not.
Furthermore, there was no attempt to adjust the findings in fact. This was particularly significant as one of the findings in fact was, in essence, a finding that the crucial facts of the charge had been proved. Therefore, it could not be contended that the Sheriff ought not to have convicted on the facts stated.
The result of all of this was, frankly, a bit of a muddle. The court granted leave to appeal on the first question in the stated case, (which appears to have included at least one, but possibly four of the matters raised in the application) but refused leave to appeal on the second. The first sift decision had been to grant leave in relation to one further matter contained in the application. It was not open to the second sift Judges to overturn that decision. As a result, it is, theoretically at least, possible for the appellant to argue a ground of appeal in relation to which no question for the court has been posed.
What can be stated is this – adjustment of the stated case is a crucial step. It is essential the appellant propose adjustments to the findings in fact, or for that matter, to suggest questions for the opinion of the court where the issue to be raised has not been sufficiently focussed or stated or is inaccurate. There may also be instances where findings in fact contain conclusions in law or where, as in FB, there was a broadly-stated finding in fact which was, left unchallenged, fatal to a ground of appeal.
Where an adjustment is insisted upon and refused, the reasons for that refusal ought to be stated. The Appeal Court has the power to refer the matter back to the Sheriff if no reason is given.
Donnelly and Walsh might also be interesting for another reason. The appellants there had been convicted under Section 1(1) of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 by singing the “Roll of Honour” song, which supports the activities of the proscribed IRA and INLA, at a match between Hibs and Celtic at Easter Road on 19 October 2013. Leave to appeal was refused in relation to the sufficiency argument. Police officers heard the appellants singing the song. However, the focus of the argument was whether there was sufficient evidence for the sheriff to conclude that there was a likelihood that the song being sung would incite public disorder. To that end, there was evidence from the police as to the meaning of the song, that it is widely regarded as sectarian and offensive and also CCTV evidence of the reaction of Hibs fans to the song being sung. The Appeal Court was at pains to point out that not all of this evidence was necessary for a sufficiency.
Intriguingly, leave to appeal was granted on the question of whether the legislation contravenes Article 7 of the Convention. I do not know precisely the terms of the argument, but if it is on the basis that the offence is not clearly defined in law, then I would be very interested to know the result!