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[1] This application raises a sharp point about the function of a sifting judge in summary criminal appeals. This Opinion is designed to emphasise that the sifting decision must relate to the stated case, notably the questions posed in it, and not to the content of any earlier, and essentially superseded, application for a stated case. The latter ought not to form any material part of the judge’s sift decision.
[2] The Criminal Procedure (Scotland) Act 1995 makes detailed provision for appeals against conviction in summary cases. These are by stated case; the principal object being to incorporate all material relevant to the appeal within the four walls of that case. The system was adopted from English procedure and has been the primary mode of appeal since the Summary Prosecutions Appeals (Scotland) Act 1875. It has its critics but it has stood the test of some time.
[3] The procedure commences with an application to the court within one week of the final determination of the prosecution (1995 Act, s 176(1)). The application must contain a “full statement of all the matters which the appellant desires to bring under review” (s 176(2); see Act of Adjournal (Criminal Procedure Rules) 1996 Form 19.2-A). The applicant may amend the statement within a further three weeks (s 176(4); but meantime the sheriff or justice of the peace ought to have prepared a draft (s 178(1)).
Procedure and Decision [9] On 15 August 2013, at Aberdeen Sheriff Court, the appellant was convicted of a contravention of section 12(1) of the Children and Young Persons (Scotland) Act 1937 (wilfully causing unnecessary suffering or injury to a child) in respect of an incident on 26 January 2012. The Crown led evidence from two doctors and a police officer, after which there was an unsuccessful “no case to answer” submission followed by testimony from the appellant and her husband. On 18 October 2013 the sheriff imposed a Community Payback Order.
[11] The sheriff could, no doubt, have posed a series of detailed questions for the High Court to address. However, he did not do so. Rather, he has framed only two questions, viz:
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