Appeal by stated case is available to the convicted accused and the Crown in summary proceedings.
An accused can appeal against conviction or conviction and sentence although following the 1995 Criminal Procedure (Scotland) Act, he must now seek leave of the court before doing so1.
The right to appeal in respect of the accused is a general right which is not restricted to points of law and he has 7 days from the date of conviction to apply for a stated case.
The right of the prosecutor to appeal until very recently was restricted to appeals by stated case on points of law only, i.e. where the Crown considers that the Sheriff has misdirected himself in law, or where he has failed to comply with the law in relation to sentence. The Crown does not require leave of the Court in order to appeal however it is a right which will only be used sparingly, in exceptional circumstances.
Recently, the Crown2 was granted the right to appeal against unduly lenient sentences in summary cases3. This right will only be exercised in exceptional circumstances, and the High Court will only interfere where the sentence is one which "no reasonable sheriff would have imposed".
Liaison with the Procurator Fiscal: Crown appeals
Procurators Fiscal must refer the case to Crown Office for Crown Counsel’s instructions before an appeal by stated case can be marked. There are strict time constraints in relation to appeals and it is therefore crucial that you act promptly.
If you consider that there might be grounds for appeal you should discuss the matter with the Procurator Fiscal on the day of the verdict or, at the latest, the following day. Within 48 hours you should formally send your opinion in writing to the Fiscal who will then send it on to Crown Office together with his own Report for Crown Counsel’s decision, which you should be advised of in due course. This should be so even if the Fiscal does not himself entirely agree with your views.
Where a prosecution appeal by stated case is taken you will be sent a copy of the draft Stated Case. You must advise the Fiscal in writing within 3 days of your comments on the draft Case. Again, these will be sent by the Fiscal to Crown Office along with the draft and his own Report for instructions.
The hearing on proposed adjustments to the Stated Case is arranged with the Sheriff and is usually held not in court but in the Sheriff's chambers. You would not normally attend this hearing but if you feel you may have a contribution to make you should advise the Fiscal of this in your Report. He will then consider asking the Sheriff if he will allow you to attend the hearing. The Sheriff is unlikely to permit your attendance if you have been a material witness in the trial.
Similarly, if you wish to attend the Appeal hearing you should inform the Appeals Unit at Crown Office, in order that you can be advised of the date.
Liaison with the Procurator Fiscal: Defence appeals
When an appeal is taken by the accused, the Procurator Fiscal should immediately send you a copy of the draft Stated Case. You should send a Report to the Fiscal with your views within 3 days.
When the Fiscal receives your Report he will send it to Crown Counsel, along with his own, for instructions. The Fiscal will in due course advise you whether the appeal is to be opposed or the conviction supported or not.
If you think you may have a contribution to make at the hearing on adjustments in an appeal by Stated Case you should state this in your report. Such hearings are invariably held in the Sheriff’s chambers, and you would not as a matter of course attend. If the Fiscal considers it appropriate, he will ask the Sheriff if you may be permitted to attend. As previously mentioned, the Sheriff is unlikely to permit your attendance if you have been a material witness in the trial.
If you wish to attend the Appeal hearing you should inform the Appeals Unit at Crown Office, in order that they can advise you of the date.
The accused has only two weeks from the date of conviction to lodge notice of intention to appeal against the decision, on the grounds of miscarriage of justice.
The second stage is to lodge a written note of appeal within 6 weeks of the original lodging of the intimation.
There is no appeal available to the Crown against the decision of a jury.
Recently, a restricted right of appeal was granted to the Crown which entitles the Lord Advocate to appeal against any sentence passed or conviction in a solemn case if it appears that the disposal is unduly lenient or on a point of law in relation to sentence.4 This is a right which is exercised in only the most exceptional circumstances.
Liaison with the Procurator Fiscal
Given the limited scope for appeal by the Crown you are unlikely to be often involved in such cases. Where the convicted accused appeals however you should liaise closely with the Procurator Fiscal and the Crown Office Appeals Unit, providing Reports when required promptly.
1. s.180 Criminal Procedure ( Scotland) Act 1995.
2. s.176 Criminal Procedure ( Scotland) Act 1995.
3. s.175 (4) Criminal Procedure ( Scotland) Act 1995
4. s.108 Criminal Procedure ( Scotland) Act 1995, as amended by s.21 Crime and Punishment ( Scotland) Act 1997.