"(1) On the argument presented ought I to have rejected the Devolution Minute? If not, was there a miscarriage of justice?

(2) Was it unfair to proceed to trial in the absence of the CCTV tapes and if so ought I to have found the Appellant Not Guilty?

(3) If not, on the facts stated, was I entitled to convict?"

(It seems likely that there is a clerical error in the first of these questions which ought properly to apply to both Minutes).

Unqualified leave to appeal was granted by a single judge in July 2005.

"1. The Crown failed to disclose all relevant information to the defence before the trial. In particular the Crown failed to provide a copy of the relevant CCTV recording or at least a summary of its contents, a record of the 999 call or a summary of its contents and the previous convictions of the complainer Kenneth Russell. The failure to do so deprived the appellant of the opportunity to prepare and present his case to its proper extent. That being so in seeking conviction the Lord Advocate, through the Procurator Fiscal, was acting incompatibly with the appellant's right to a fair trial guaranteed by Article 6(1). Such an act was ultra vires. Reference is made to section 57(2) of the Scotland Act 1998.

Separatim. Esto the Crown was unable to produce the material referred to the appellant was nevertheless denied a fair trial because he was prevented from presenting his defence to its proper extent. In seeking conviction the Lord Advocate, through the Procurator Fiscal, was acting incompatibly with the appellant's right to a fair trial guaranteed by Article 6(1). Such an act was ultra vires. Reference is made to section 57(2) of the Scotland Act 1998.

Separatim, The failure to disclose the previous convictions referred to was a failure which denied the appellant the fair trial to which he was entitled. It is understood that the complainer gave evidence which was apt to suggest that he did not have a violent past. The decision to seek a conviction in the circumstances was accordingly an act which was incompatible with the right to a fair trial. Such an act was ultra vires. Reference is made to the preceding paragraphs.

2. The appellant was entitled to a fair trial. It was the duty of the presiding Sheriff to ensure that the trial was fair. In the circumstances referred to he ought to have acquitted the appellant or at least deserted the trial simpliciter.

3. The appellant was denied his right to trial within a reasonable time guaranteed by Article 6(1). In seeking conviction the Lord Advocate, through the Procurator Fiscal, was acting incompatibly with the right referred to. Such an act was ultra vires. Reference is made to section 57(2) of the Scotland Act 1998.

4. The Sheriff misdirected himself on the approach that should have been taken to the devolution minutes before him. In the stated case the Sheriff gives his reasons for refusing to entertain argument on the merits of the minutes. Reference may be made to pages 4 & 10. It is submitted, that standing the importance of the issues raised in the minutes, it was incumbent on the Sheriff to hear full argument to ensure that the appellant had the fair trial to which he was entitled.

In any event it is submitted that the Sheriff erred in the exercise of his discretion. Properly understood there was no good reason why the Sheriff should have exercised his discretion against the interests of the appellant.

5. In any event the Sheriff erred in his consideration of the evidence and in particular he failed to consider the defence case properly. By way of example he has failed to explain how he approached the question of self defence by reference to the evidence led which might have been apt to support the defence or at least raise a reasonable doubt about the Crown case. In addition he has not sought to explain how he was able to accept the evidence of the complainers despite their having given statements to the police which were inconsistent with the evidence given.

He makes reference to the fact that the underpass was not on the appellant's route home despite there being no evidence on which to make such a finding.

Separatim. The appellant is entitled to a reasoned judgment. The observations of the Sheriff do not suggest that he has applied his mind properly to this requirement.

By way of example reference might be made to page 10 of the stated case. In dealing with the appellant's evidence the Sheriff made the following observations:

'Had the Appellant impressed me more perhaps I would have found for him, given that which had befallen the potential evidence as it must might possibly have had some relevance.'

The only question for the Sheriff was whether the appellant's evidence raised a reasonable doubt in his mind as to his guilt on either or both charges.

Separatim. The way in which the stated case has been set out does not suggest that the Sheriff has applied his mind properly to all the evidence which was led.

Accordingly there has been a miscarriage of justice."