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 after having already 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 multiple 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 the case 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.

After 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 found it did not include any cries from Ms McHale.

But 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.


But the commission has sent it back to the High Court saying that the provenance of the recording it had "may be established with reference to other available evidence".

It added: "With this in mind, the commission believes that the reasons for the first referral remain sound."

The SCCRC had originally felt there a miscarriage of justice may have occurred in that "the court misdirected itself in assessing the evidence and concluding that [Ms Kirk] intended to assault the complainer.

Her husband and co-accused, Thomas Kirk, 71, was charged with behaving in a threatening and abusive manner towards Ms McHale on the same date but it was dropped by the Crown during the trial.

The court originally heard Ms Kirk was in a communal garden area near Stirling with her dog when Ms McHale opened the back gate to her garden and her dog "scooted" past her towards them.

Ms McHale - who claimed to have had issues with the Kirks - said the two animals had a "snarl and a snap".

The court heard Ms Kirk had bought a dictaphone to record allotment association meetings and had left it running her in pocket as she planned to dictate a grocery shopping list.

During the original hearing, Greg Cunningham, defending, suggested Ms McHale's dog had a "reputation" for being aggressive which she denied.

Ms Kirk said Ms McHale's dog had been aggressive on "numerous occasions" and she called the dog warden in 2013.

Describing the incident, she said: "It was biting my dog. It was taking chunks out of his throat. I hit the dog with my lead.

"I was hitting him with the lead to break the aggression, to try and break the moment. "

Delivering the opinion of the court, last year the Lord Justice General said: “This was a straightforward case in which the complainer said that the appellant had struck her repeatedly with a dog lead. Under cross-examination, the complainer said that the blows and screams could be heard on the recording. The content of the recording thus became evidence in the case notwithstanding that the recording does not appear to have been formally produced.

“The complainer’s evidence was corroborated by an independent by-stander who said the same. According to the justice, the audio recording supported their evidence. The justice found the appellant’s evidence, that she had only struck the dog, to be incredible, for the reasons given above regarding multiple strikes causing the complainer to scream. The justice accepted that the first blow may have been an accident, but rejected the idea that the subsequent ones were other than deliberate.

“There is no substance in the contention that the justice had accepted that throughout the incident the appellant had been trying to hit only the dog. That is not what is said either in the letter from her legal adviser to the Commission or in the stated case. There is no merit in an argument that, just because the justice accepted that the first blow may not have been intended to strike the complainer, there was somehow an absence of the requisite intent when the appellant had continued with the remaining strikes.

“The justice’s finding is clear that the second and subsequent strikes were intended for the complainer. Her reasoning is consistent with the explanation proffered to the SCCRC that she had concluded that the appellant was lying about hitting the dog since it would have been obvious to her that she was striking the complainer and not the dog.”