Procurator Fiscal, Kilmarnock v. Stephen Motroni [2021] HCJAC 17

Crown Petition to the Nobile Officium:- The respondent appeared on summary complaint in relation to two charges of lewd, indecent and libidinous practices and behaviour towards two persons from 1992 to 2001 and 1992 to 1999 at locations in Ayrshire and also at addresses in Italy. No objection to the jurisdiction of the court was made in terms of section 144(4) of the Criminal Procedure (Scotland) Act 1995 which, if sustained, could have been appealed under section 174 of the 1995 Act. The case proceeded to trial on the entire complaint. Following a number of days of evidence the summary sheriff raised the issue of jurisdiction in relation to the Italian locations and continued the trial for submissions on jurisdiction following which he held that he did not have jurisdiction on the Italian aspects of the case and deserted the complaint in so far as it related to and then acquitted the respondent of the remaining elements of the charges. Under section 176(1) of the 1995 Act the procurator fiscal applied for a stated case to address the question of jurisdiction and to challenge the acquittal of the respondent. The sheriff declined to state a case on the basis that it was his decision on jurisdiction that was under challenge, which decision did not amount to an acquittal, and, as such, an appeal by stated case was incompetent and any appeal would require to be by the Bill of Advocation. Here the court considered that the sheriff’s decision ought to have been taken at the preliminary stage under section 174 and it could not then have been the subject of a Bill of Advocation, however, a difficulty arose because the decision of the summary sheriff was at the trial diet and whilst the question of jurisdiction was determined in advance of any verdict, the conclusion of the trial was an acquittal and to challenge the decision on jurisdiction would be have no purpose as regardless of the outcome the respondent would remain acquitted. As such the court considered that the only competent way to proceed would be to challenge the acquittal. The court noted that whilst advocation is a competent means to challenge an acquittal on the grounds of a miscarriage of justice, that is only where an appeal by stated case is incompetent or inappropriate. Here the court considered that given the fiscal was seeking to challenge the acquittal which was caused in part by the sheriff’s decision on jurisdiction the appropriate way of challenging an acquittal after trial is by way of an application for a stated case and the court ordained the summary sheriff to state a case and set out the findings in fact, the reasons for the decision on jurisdiction and the basis for the acquittal which would allow the Sheriff Appeal Court to determine all matters in a single appeal process.