Richard Mullen v. His Majesty’s Advocate [2025] HCJAC 22

Note of appeal against conviction:- The appellant was convicted after trial on indictment at Perth Sheriff Court of three charges of having with him offensive weapons in Perth Prison contrary to section 4(C)(1)(a) of the Criminal Law (Consolidation) (Scotland) Act 1995. The appellant appealed against his conviction contending that he had been deprived of a fair trial resulting in a miscarriage of justice as a consequence of being unrepresented at trial, he having been unable to instruct another solicitor having dismissed his solicitor mid-trial. The circumstances were that on 12 February 2024, following the remote ballot of the jury on 7 February and the Crown leading evidence from 6 witnesses on 9 February before the trial was adjourned for the weekend, the appellant withdrew instructions from his solicitor and he sought, and was granted, leave to withdraw from acting. The sheriff adjourned until the following day to allow the appellant an opportunity to find alternative representation at which time the appellant still had no lawyer and the sheriff adjourned until 15 February to allow him to find alternative representation when he still had no lawyer and the sheriff determined that the trial should proceed. During the trial the sheriff advised the appellant that he could give evidence and could address the jury which the appellant declined to do. The Crown withdrew charge 2 at the close of its case and the appellant was acquitted of that charge. In due course the jury convicted the appellant by majority verdict on charges 1 and 4 and unanimously on charge 3. It was submitted on behalf of the appellant that he was unfit to stand trial on account of the opinion of Dr Karen Bett, Locum Consultant Psychiatrist, in two reports dated 2 July 2023 and 21 April 2024 which highlighted concerns regarding the appellant and a developing paranoid psychosis and he would have suffered considerable prejudice once he was unrepresented and the sheriff ought to have deserted proceedings pro loco et tempore on 15 February rather than requiring the trial to continue when the appellant was unrepresented. It was submitted that as a result of the trial continuing in these circumstances there had been a miscarriage of justice. On behalf of the Crown it was submitted that ongoing trial should only be deserted pro loco et tempore in exceptional circumstances as a last resort and where it was on the basis of an accused being unwell then the court had to be satisfied of that unfitness (HMA v Brown and Foss 1966 SLT 341) and in the present case there was no basis upon which the sheriff could determine that the appellant was unfit to continue. It was submitted that his solicitor made no reference to it at the time and there was no evidence placed before the court supporting any concerns regarding his fitness to continue. It was further submitted that neither Dr Bett, nor any of the other experts from which reports had been sought in advance of the appeal hearing, provided an unequivocal and uncontroverted statement that the appellant was unfit for trial in February 2024. Here the court considered the various psychiatric reports which had been prepared. The court noted that the appellant told Dr Maior that he made the weapons to protect himself from other prisoners which the court observed amounted to an admission of guilty having regard to caselaw including Grieve v Macleod 1967 JC 32. The court considered affidavits from the appellant and from the solicitor. The court refused the appeal. The court reiterated that desertion of a trial is very much a last resort. The court noted that the appellant had been represented by an experienced solicitor throughout the leading of the Crown witnesses and had cross-examined them. No concerns by the solicitor had been raised regarding the appellant’s fitness to stand trial. After the services of the solicitor were dispensed with the sheriff allowed the appellant an appropriate period of time to obtain alternative representation and, when unable to secure same, the sheriff ensured that the trial proceeded in a scrupulously fair way to ensure the ongoing fairness of proceedings. In addition, the jury were provided with oral and written directions prior to the start of the trial and reiterated in the charge. The court noted that the appellant did not meet the test in section 53F of the 1995 Act relating to unfitness for trial and nor was there a basis at common law for the court to hold that, on a balance of probabilities, he was unfit. There was no basis for it to be established that the appellant was unfit for trial given no psychiatrists testified in the appeal unlike in Murphy v HMA 2017 SLT 143 where the court concluded that the appellant had been unfit at trial after three psychiatrists gave evidence in the appeal and all agreed that Mr Murphy was probably unfit at the time of his trial.