Month: July 2019

The correct answer, of course, is the Sheriff Appeal Court (SAC) is not on anybody’s side. It approaches each case neutrally, favouring neither the prosecution nor the defence. But that is not always how it feels, certainly not from a road traffic perspective. The recent decision in the successful Crown appeal against Kevin Coulson certainly rattled my cage. This was a Crown appeal against an acquittal secured by one of my competitors. Much as one may think I would wallow in their failure, I certainly do not. I’m not going to go into the case here as I intend to discuss it in more detail at another time. Suffice to say, however, I 100% agreed with the submissions made by the defence in this case and respectfully disagree with the decision of the court.

This was the 2nd such Crown appeal against a competitor of mine with which I found myself in complete disagreement. In PF Perth v David Martin [2018] SAC Crim (9), the Appeal Court went, in my opinion, to extraordinary lengths to allow a Crown appeal against acquittal in a speeding case involving average speed cameras. In order to find the necessary precedent, the Appeal Court dusted off the archives and relied on the case of Scott v Jameson. Scott v Jameson was decided in 1914. The last time I checked, there were barely any cars in 1914 and there certainly weren’t any average speed cameras.

Such decisions as these lead to practitioners like myself complaining about the decisions of the SAC. “Whats the point in even appealing?” is, in my opinion, a fair reflection of the views of very reasonable defence practitioners around the country. But is this view merited?

It is possible to carry out an impartial audit of all reported SAC decisions since its inception. Of course many cases are unreported so this analysis is a limited one. But its results surprised me. Since its inception, there have been 68 reported defence appeals in the SAC. Of these, 32 were allowed or partially allowed. That is a proportion of 47%. Hardly fits the picture of a prosecution-centric SAC. Even if we take the 5 partially-allowed appeals and move them to the “refused” column, the proportion of allowed appeals is still 40%. Of course there is more than one kind of appeal and it seems that the defence have more cause to be optimistic when appealing against sentence than against conviction.

Appeals against Sentence

There are 41 reported defence appeals against sentence. Of these, 24 were allowed (3 partially). That is a proportion of almost 59% (or 51% if you move partially allowed appeals to the “refused” column). Not all of these decisions are necessarily good outcomes for the defence. The decision in Love v PF Kilmarnock [2018] SAC (Crim) 12 is a good example. A disqualification from driving was reduced from 16 months to 10 months, meaning the appeal was technically “allowed”. However, when one considers that the offence was speeding at 92 in a 70 limit – for which the appellant was offered a fixed penalty – the penalty still seems brutally harsh, the poor driving record of the appellant notwithstanding. But 59% is 59%.

Appeals against Conviction

This paints a less friendly picture for the defence. I have included here appeals raising “procedural” points such as decisions to allow Crown adjournments. In total there were 27 such cases. Only 8 were allowed, 2 of which were only partially allowed. That is a refusal rate of 70%, rising to 78% if we move the partially allowed appeals to the “refused” column.

The difference is quite stark – a refusal rate of 41% for appeals against sentence against 70% for appeals against conviction and procedural appeals which would have similar effect. And there is one final category which may truly rankle.

Crown Appeals

Crown appeals to the SAC are rare. Since inception in 2015 there have been only 8. And the success rate? 100%. That’s right. Every single Crown appeal has been allowed, including the decision in Coulson that propelled me to research this article in the first place. If we add these 8 to the unsuccessful defence appeals against conviction, we get a Crown success rate of 77%. If we move the partially successful defence appeals to the “refused” column, this rises to a mammoth 83% success rate for the Crown.

The Big Picture

It seems that the defence does considerably better at the SAC when it is not squaring off against the Crown. The difference in success rates between appeals against sentence (in which the Crown rarely plays a part) and appeals against conviction/Crown appeals is stark. On balance, though, I found myself surprised that 47% of all (reported) defence appeals were successful.

That was not the only thing I found surprising. Of all the reported cases (and I have read them all) there is not one dissenting judgement. And the amount of reported cases has fallen sharply. In 2016, 33 cases were reported. This fell to 18 in 2017 and 17 in 2018. In 2019 to date (1st July 2019 so exactly halfway through the year) there has only been 5 reported cases, 4 of which were Crown appeals (one of which was conjoined with an unsuccessful defence appeal). The 4 Crown appeals reported in the first half of 2019 equals the entire amount of Crown appeals between 2015-2018. If the reported cases accurately reflect the proportion of all cases heard by the SAC, it is suggestive of increased Crown activism to appeal coupled with defence reticence (and/or fewer defence cases passing the sift). While it seems my own opinion about successfuly appealing to the SAC was pessimistic (in relation to sentence at any rate), it does seem that the perception is influencing the reality.