Accused Unfit to Stand Trial Examination of Facts Case Study by Andrew Seggie, Senior Associate
I was recently instructed in a high-profile case at Edinburgh Sheriff Court. My role was to represent an accused individual, now in his 80s, facing serious allegations of physical abuse dating back to 1967. Our early involvement in the police investigation allowed for extensive communication with both the police and the Procurator Fiscal’s office.
Understanding Client’s Needs and Legal Challenges
The situation was particularly challenging because our client suffered from Alzheimer’s disease, which impaired his ability to engage in the process or provide appropriate instructions. Despite these challenges, the prosecutor decided that proceeding with the case was in the public interest due to the sensitive nature of the allegations and the number of complainers involved. Given his age and condition, he was neither formally interviewed by the police nor appeared on petition, typically a crucial starting point for solemn procedure cases in Scotland.
Prosecution Decision and Legal Framework
The prosecutor shifted the course of the case towards an examination of facts hearing instead of a traditional trial. This process, as defined by the Criminal Procedure Scotland Act 1995, focuses on determining whether the facts of the case are established beyond reasonable doubt, without resulting in a conviction. The court’s decision revolves around the facts rather than the accused’s guilt.
Assessing the Indictment and Charges
An indictment was served, with the first diet scheduled for November 2023. Although medical reports confirmed our client’s unfitness for trial, the indictment included 37 charges, covering incidents from 1967 to 1987, involving over 35 former school pupils. Despite the lack of direct client instructions due to illness, we were still obligated to agree on uncontroversial evidence to minimise case duration.
Defence Strategy and Court Dynamics
The examination of facts took place in March 2024 over 12 days. One major hurdle was the unavailability of full client instructions, which limited our ability to present his position during cross-examinations. We relied on the testimony of his family, who had welfare power of attorney, and were present during some allegations. Additionally, we had to handle cross-examining vulnerable complainers sensitively, without the usual protective measures, as our client was absent from court.
Compounding the complexity was the emotional toll on the family and the intense media scrutiny surrounding the case. Ultimately, the examination concluded with the facts established in 33 out of 37 charges, though some faced significant deletions.
Reflections and Takeaways
This case proved to be one of the lengthiest and most challenging in my legal career thus far. Collaborative teamwork, particularly involving younger trainee solicitors, played a pivotal role in navigating the intricate proceedings. It underscored the necessity for meticulous preparation and cooperation to secure optimum outcomes for clients, regardless of the complexities involved.
