Her Majesty’s Advocate v. Jennifer Cordiner and Hollie McKenzie [2017] HCJAC 53

Bill of advocation:- The respondents were indicted to Peterhead Sheriff Court in relation to a charge of assault to severe inury and permanent disfigurement of a 32 year old man by repeatedly punching and kicking him on the head, striking him on the head with a glass bottle and stabbing him on the face with the broken bottle and punching and kicking him repeatedly on the head and body, whilst both respondents were on bail. Since the alleged assault the complainer moved from Peterhead to Cumbria and he wished to give his evidence by CCTV link from there. A written Vulnerable Witness Application was lodged expressing the wish for his evidence to be given in that way as he was terrifed of returning to Perthead and seeing the respondents and he felt the quality of his evidence was likley to suffer if he had to give evidence in court. The application had been opposed by both respondents:- (1) it was said that the complainer had moved out of Peterhead because of another incident and not as a result of the present allegation involving the respondents; and (2) that the application under section 271 was late having been lodged on 9 December 2016 despite the Crown being aware of the issue since June 2016. The sheriff refused the section 271 application indicating that “no cause had been shown” to grant the application. The Crown appealed against the sheriff’s refusal to grant the application by way of Bill of Advocation. On behalf of the Crown it was conceded that the section 271 application had not been lodged timeously as a result of, what was accepted to be, a bad administrative oversight. That was the “cause” that was offered for the late lodging of the application. Here the court passed the Bill and remitted the case to the sheriff with a direction to grant the section 271 application and proceed as accords. The court in passing the Bill considered that the most important factor was that the quality of the complainer’s evidence would be diminished if the application was not granted. In addition, the court noted that:- (1) whilst the written application was lodged on 9 December 2016 verbal intimation was given to the defence in August 2016 that a such an application would be made; (2) there was considerable public interest in bringing the case to court; (3) the complainer was indeed a vulnerable witness having regard to the available information; (4) the sheriff’s report did not make clear whether he was taking a decision about the lateness of the application or about the basis of the application itself; (5) there was no reference in the sheriff’s report to the carrying out of any balancing exercise of the various competing interests; and (6) no actual prejudice to the respondents could be demonstrated by the granting of the application.