A Stirling solicitor is launching a legal challenge to the power of Scottish “summary” sheriffs.
It could mean that dozens of serious criminal convictions across Scotland could be called into doubt if it succeeds.
Virgil Crawford is representing a woman charged with threatening and abusive behaviour and is disputing the powers of a summary sheriff who handled her case at Falkirk Sheriff Court last month.
Summary sheriffs were a new judicial office created in 2014 to deal with civil and criminal cases sitting in the sheriff court without a jury.
They sat for the first time in courts across Scotland for the first time in April 2016.
Under the Courts Reform (Scotland) Act their powers are generally restricted to dealing with less serious, or summary, cases.
There are more than 45 summary sheriffs across Scotland, taking pressure of business off their higher-paid “full” sheriff colleagues.
At Falkirk Sheriff Court last week, Mr Crawford gave notice of a “plea to the competency” in the case of 48-year-old Brenda Black, who was due to be sentenced for threatening and abusive behaviour under the courts’ more serious “solemn procedure” system.
Ms Black had appeared for sentence the previous week before the court’s resident summary sheriff, Derek Livingston, who put her case off to be dealt with by a full sheriff.
Mr Crawford said it was his understanding of the law that a summary sheriff could not put off – or “continue” to use the legal jargon – a case for deferred sentence, and should simply have declined to deal with it at all and left it for a full sheriff who was elsewhere in the building at the time.
When Ms Black appeared again last Thursday Mr Crawford asked for a debate to be fixed.
He said: “On the last occasion I raised an issue as to the competency, as it is my submission that a summary sheriff cannot even continue a deferred sentence on solemn matters.
“I accept they are entitled to continue certain parts of indictment matters, but they are not entitled to continue deferrals.”
The full sheriff presiding last Thursday, Sheriff Christopher Shead, said: “It will certainly come as a rude shock to the Lord Advocate and to the Courts Service if that were the case.
“[Since 2016] summary sheriffs have been dealing with indictment matters in every court in the country. This must have happened tens of thousands of times.”
He set the case down for a debate on March 9.
Mr Crawford said he would be applying for sanction from the Scottish Legal Aid Board to instruct an advocate to argue the point.
Mr Crawford said this week that if he wins the point, he did not expect it to retrospectively invalidate the convictions of “tens of thousands” of people going back years, but claimed it would mean that people currently waiting to be sentenced would walk free if their solemn cases had been dealt with incorrectly by a summary sheriff.
He suggested that across Scotland this could mean “dozens of people, already convicted of serious crimes” could not be sentenced.
The procurator fiscal depute handling Ms Black’s case on Thursday, James Moncrieff, said in court that it was the Crown’s position that “nothing had been done that ought not to have been done”.
