Caselaw: Bail in High Court Proceedings

If I should ever be tempted to think that my years of experience practicing in the criminal courts in Scotland means that I know all there is to know about procedure then the case of AA v HM Advocate [2016] HCJAC 17 serves as an abrupt slap in the face. Practitioners will be well aware Read more about Caselaw: Bail in High Court Proceedings[…]

Caselaw: Rodgerson v PF Alloa – “Significant Sexual Element” in a Social Media case.

In the recent appeal of Rodgerson v Procurator Fiscal, Alloa [2016] HCJAC 12, the question of whether the circumstances of the offence contained a “significant sexual element” was considered. That phrase is important.  The Sexual Offences Act 2003 provides for the registration of offenders who have committed sexual offences.  Schedule 3 to the Act specifies offences Read more about Caselaw: Rodgerson v PF Alloa – “Significant Sexual Element” in a Social Media case.[…]

Caselaw: Appeal by Way of Stated Case

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 [2015] 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 Read more about Caselaw: Appeal by Way of Stated Case[…]

Caselaw: Overturning the Jury’s Verdict.

The recent appeal decision in MacKinnon v HM Advocate [2015] HCJAC 6 serves as a reminder that the statutory ground of appeal contained in Section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995 will succeed only in exceptional cases. Delivering the opinion of the court, Lady Dorrian re-states the matters essential to the consideration of Read more about Caselaw: Overturning the Jury’s Verdict.[…]

Community Payback Orders and Unpaid Work …or ‘How many hours did I get?’

I had an interesting little appeal last week. I doubt very much that it will be reported. Nevertheless it raised an interesting issue regarding the imposition of unpaid work requirements in Community Payback Orders. Legislative History Community Payback Orders (CPOs) were introduced by the Criminal Justice and Licensing (Scotland) Act 2010 in, amongst other things, Read more about Community Payback Orders and Unpaid Work …or ‘How many hours did I get?’[…]

Be Prepared! Disclosure and the Defence

The first instance judgement of Lord Turnbull issued in HM Advocate v Thomson [2014] HCJAC 107 is a must-read for any criminal practitioner. The accused was charged with the rape of a vulnerable young female. The case was originally set down for Preliminary Hearing on the last day before the expiry of the 11-month time limit. However, Read more about Be Prepared! Disclosure and the Defence[…]

Sentencing: Offending While on “Licence”

The busy criminal practitioner will require to deal with offenders who have committed offences having been released early from their sentence. The violation of trust caused by such offending brings a further mechanism for punishing the offender. Unfortunately the current legislation is, for many, greatly confusing and as clear as the proverbial mud. Section 16 of Read more about Sentencing: Offending While on “Licence”[…]

Precognitions and Statements: Forgetting what you thought you knew.

In Beurskens v HM Advocate [2014] HCJAC 99, the Appeal Court provided an important lesson for criminal lawyers – what you think you know is not always correct.  In this case, the Court considered the use of precognitions in relation to an application under Section 259 of the 1995 Act before deciding that, contrary to the Read more about Precognitions and Statements: Forgetting what you thought you knew.[…]

Caselaw: Discounts In Summary Sentencing

The Appeal Court today decided that a Sheriff was wrong to select a headline sentence in excess of the maximum competent sentence that could have been imposed had the matter proceeded to trial. The case has not been reported yet, but it would appear to put to bed the notion that a Sheriff can restrict Read more about Caselaw: Discounts In Summary Sentencing[…]

Caselaw – Cowie Binned

The Appeal Court has once and for all consigned the decision in Cowie v HM Advocate 2012 SCCR 70 to the dustbin. In Lukstins v HM Advocate [2012] HCJAC 146 a full bench decided that the interpretation applied by the court in Cowie to Section 18 of the 1995 Act relating to police powers to Read more about Caselaw – Cowie Binned[…]