PF v Jonathan Kelly 2019

Mr Kelly who appealed the Crowns decision to prosecute him for threatening and abusive behaviour to the Sheriff Appeal Court has been successful and his case was dismissed. The appellant took issue with a sheriff’s decision at Hamilton sheriff court to repel a plea in bar of trial. This was raised at the sheriff court after previously another sheriff had deserted an identical complaint in 2018.

The basis of the argument was that the appellant would suffer oppression with the new complaint on identical terms being raised against him. The Sheriff Appeal Court agreed with the argument and stated the complaint should have been dismissed and plea in bar of trial upheld. Sheriff Principal Murray said in concluding the appeal: “We read the terms of section 152 as being applicable to the circumstances before the sheriff on 22 October. It is not in dispute that evidence had been led in the original complaint; that the sheriff refused an application by the prosecutor to adjourn the trial; that there was no motion to desert the diet pro loco et tempore; and that the prosecutor was unable or unwilling to proceed to trial.In these circumstances the terms of statute directed the sheriff to desert the complaint simpliciter.

” Therefore, the original sheriff in relation to the first complaint had erred by not deserting the trial simpliciter so it could not be reraised. The court continued: “taking account of our conclusion on the error on the part of the sheriff on 22 October, which was excluded from the consideration of the summary sheriff, we find his decision in repelling the plea of oppression to be flawed and we shall allow the appeal and dismiss the complaint.” Therefore in terms of legislation the sheriff had erred. No further proceeding will continue against the appellant.