Thanks to Scott Wortley and the anonymous commenter on the previous post for drawing my attention to this BBC News report indicating that the Crown's appeal in the Stuart Kennedy case has been dismissed. Apparently some confusion was caused because of a claim that Mr Kennedy's lawyers had not been notified of the hearing last week, but their absence has turned out to be neither here nor there as the court had decided to dismiss the appeal. A written opinion has not yet been issued.
The outcome is not all that surprising, particularly because in previous cases on the "reasonable excuse" question the court has approached the question as being one of whether the trial judge was entitled to take the view that the defence had been made out, rather than considering the point afresh. (See eg Hemming v Annan 1982 SCCR 432.) A case such as this seems to involve a factual judgment by the judge at first instance which an appeal court should be reluctant to interfere with. It may be, therefore, that the court has simply declined to interfere with Sheriff Stewart's decision, without going so far as to endorse Mr Kennedy's costume, but the written opinion should make this clear.