Commission sends case back for rare second review
THE head of an allotment group has won a rare second chance to prove she suffered a miscarriage of justice after being found guilty of assaulting a neighbour with a dog lead as their two dogs fought.
The Scottish Criminal Cases Review Commission said it has “exceptionally” decided to refer the case to the High Court for a second time having been rejected on appeal.
The SCCRC referred only three cases to the High Court last year.
A court heard allegations that Carol Kirk had struck Caroline Mchale several times on the back of her hand “in a red faced temper” after her neighbour’s dog had a “set-to” with her own dog.
But the then 57-year-old chairwoman of the Stirling Allotment Association, who recorded the attack on a dictaphone she had in her pocket, said she struck Ms Mchale’s Hungarian vizsla, Viktor, instead.
The audio recording was played in court, which heard dogs barking and Ms Kirk shout “get that f***ing thing away” and “you’re mad, you’re absolutely mad” to Ms Mchale and the sound of striking.
Ms Kirk was then heard using her mobile phone to call the police.
The Scottish Criminal Cases Review Commission in again referring the case says it revolves around what it took to be the same recording and it “did not include any screaming from the complainer”.
Ms Kirk, now 60, argued in court she intended to strike the dog when it attacked her collie, Charlie.
But Ms Kirk from Cambusbarron, Stirlingshire, who appeared on trial at Stirling Justice of the Peace in
May, 2015 was found guilty and admonished.
The commission referred the case to the High Court in March 2017, on the basis that the justice made reference to the recording which featured repeated cries from the complainer.
But, having obtained what it took to be the same recording, it found it did not include any cries from Ms Mchale.
At the High Court in August 2017, the Lord Justice General, Lord Carloway, sitting with Lord Brodie and Lord Drummond Young, found there was no agreement over the provenance of the recording the commission had received and the appeal was rejected.
It added: “With this in mind, the commission believes the reasons for the first referral remain sound.”
The SCCRC had originally felt there was a miscarriage of justice in that “the court misdirected itself in assessing the evidence”.