A coronavirus outbreak at a Scottish court led to a man being acquitted half way through his trial for a serious road traffic offence, it has been claimed.

Paul Smith was facing trial for seriously injuring someone due to dangerous driving but was acquitted by the sheriff in the case after prosecutors were told not to attend court due to growing safety concerns.

The case, which called on December 23, came as a spate of positive tests among staff at Kilmarnock Sheriff Court peaked just before Christmas.

The Crown Office and Procurator Fiscal Service (COPFS) has now launched an appeal in the case in a bid to bring Mr Smith, of Ayr, back to court.

The appeal, known as a Bill of Advocation, claims the sheriff’s decision was “unjust, erroneous and contrary to law”.

The document, lodged at the Sheriff Appeal Court, states that in the weeks leading up to Mr Smith’s trial “concern had been building about the risk of Covid-19 infection in the Kilmarnock Sheriff Court building”.

It adds: “A cluster of positive results for Covid-19 had been identified amongst SCTS (Scottish Courts and Tribunals Service) employees. The identified outbreak resulted in ongoing discussions involving COPFS and SCTS between 16 December 2020 and 22 December 2020.”

On the day of Mr Smith’s trial, the Crown claims it was confirmed that the Covid cases had increased further and that SCTS was considering moving business to other courts.

However, hearings still went ahead that morning, with four civilian witnesses giving evidence at Mr Smith’s trial before the court broke for lunch at 1pm.

It is claimed that throughout the lunch hour, discussions were ongoing about whether or not business would continue, with the Crown finally receiving a call towards the end of the break to say that it would.

The Bill makes claims that SCTS initially told the Crown that Public Health Scotland had attended and deemed the building to be safe, however COPFS says it is understood that PHS did not attend and it was environmental health officials who had visited.

The Crown states that it sent an email to the Sheriff Clerk at 2.08pm saying that it was still considering its position.

The email stated: “I am waiting for clarification from senior management about today’s business. My deputes have been advised not to return to court until that is clarified which should hopefully be within the next 10 minutes or so. Please offer my apologies to the sheriffs... for any inconvenience.”

By the time this email was received, Sheriff Elizabeth McFarlane was already on the bench in Mr Smith’s case and decided to acquit him in the absence of the prosecutor.

The Crown appeal states: “No opportunity was afforded for the Crown to offer an explanation to the court. There was no reason to conclude that the non-attendance was without excuse.”

It adds that the sheriff has not paid “due regard” to the prejudice to the alleged victims in the case and to the public interest.

The Crown Office declined to comment on the case, other than to confirm the appeal had been lodged.

Both SCTS and the judiciary also declined to comment as the case is ongoing.

At the time of the outbreak at Kilmarnock, SCTS said environmental health officials had visited the court and were “assured by all the safety measures in place, including enhanced cleaning and physical distancing”.

It is understood that a number of other accused were also acquitted at Kilmarnock on December 23 and the Crown intends to appeal these too.