Scottish High Court of Justiciary Decisons

ALASDAIR TAYLOR WILL v. PROCURATOR FISCAL, DORNOCH [1998] ScotHC 24 (18th December, 1998)

On 9 February 1998 the complainer appeared in the Highland District Court at Dornoch in answer to a summary complaint in which he was charged with a contravention on 4 October 1997 of section 52(1) of the Criminal Law (Consolidation)(Scotland) Act 1995. He pled not guilty, and the case was adjourned for trial on 18 May 1998. At the end of the trial on that date he was found guilty, and in due course on 15 June he was fined the sum of £75 and a compensation order in the sum of £60 was made.

In the Bill it is maintained that his conviction and the disposal thereon should be suspended in respect that justice was not done and could not be said to have been done. This complaint is based on the statement that the justice of the peace who presided was formerly a neighbour of the complainer "and during this period there had been arguments and disputes between the two men". It is also stated that in 1996 the justice had objected to planning permission sought by the complainer "upon his alleged trouble with the complainer during a number of years (sic)". In these circumstances it is claimed by the complainer that the justice should have disqualified himself from presiding over the trial; and that in failing to disqualify himself he may have been unduly influenced against the complainer. In any event, it is said, he was and would be perceived to be prejudicial in his view of the case brought against the complainer.

In his report to this court the justice accepted that he was formerly a neighbour of the complainer for a period of about five years. However, he denied that there had been any arguments and disputes between the complainer and himself. He had known the complainer's family since they came to Dornoch in 1947. The complainer had moved into a house near his house in the early 1990s, and had occupied it until it was sold at Christmas 1996. During the complainer's occupation of the house the only time when he had to speak to him "in any formal manner" was to chide him about his dog which had been allowed to roam loose and was inclined to snap. At a later date a restraining order was made in regard to the dog, after an incident in which he was not involved. In 1996 his wife had objected to planning permission which had been sought by the complainer. This was on the ground that the proposed development would affect access to their property. The objection was not personal to the complainer.

The justice went on to state that he worked in one of the most popular hotels in Sutherland and Easter Ross for functions. There were few people in the area whom he had not met and talked with. Some of them had appeared in front of him in the court in both areas. He had disqualified himself on a lot of occasions, for example in respect of those persons who had created problems in the hotel, direct friends etc. In the present case he did not consider it necessary to have disqualified himself from presiding over the trial, as he did not consider that there had been arguments and disputes which would give rise to a belief in the mind of a reasonable man that he would not be impartial when presiding. It was his opinion that the mere objection to a planning application, the objection being based on planning grounds, was by itself insufficient to create that belief. He did not consider that merely because he had been a neighbour of the complainer for approximately five years that was sufficient to disqualify him from presiding over the trial. Further he did not consider it was necessary to disqualify himself on the ground that he might have been unduly influenced against the complainer.

For the complainer Mr. Muir pointed out that in the present case it was not merely a question of his client being known to the justice. There had been a previous incident in which the justice had occasion to chide him. He accepted that, as was pointed out by the justice in his report, neither the complainer nor his agent at any time expressed any objection to his presiding. With very proper frankness, he had to accept that the point had been raised by the complainer with his agent but it had not been pursued in court. Nevertheless, this was a case in which the justice should have taken the initiative of declining to sit.

The Advocate depute submitted that the point was one which lay peculiarly within the discretion of the court. It was quite unrealistic to expect that a justice in a relatively small rural community would not be acquainted with a considerable number of people who lived there. In the present case the justice had applied his mind to the question of whether he should decline to sit. The type of limited contact which there had been between him and the complainer in the past was not such as to create a suspicion of lack of impartiality on his part.

The general approach to the question whether a judge should decline to sit in a case is well recognised. The question is whether the circumstances are such as to create in the mind of a reasonable man a suspicion that the judge is not impartial. These circumstances in themselves are enough to disqualify him even if there is in fact no lack of impartiality on his part (see Harper of Oban (Engineering) Limited v. Henderson 1988 S.C.C.R. 351 at page 353). That case demonstrates that a previous connection or relationship between the judge and the accused may give rise to such circumstances. The justice who presided was a former employee of the accused company and had been dismissed by them three years before. The court observed that the justice ought to have made it plain to the solicitor appearing for the company that he had this prior association and thus given the solicitor the opportunity either of objecting to his acting as justice or of waiving that objection. He did not do that, and in the circumstances it could not be said that justice had been seen to be done. This case may be compared with Anderson v. Hillary 1990 S.C.C.R. 684 in which it was held that the mere fact that the justice had formerly been the accused's guidance teacher did not give rise to any suspicion that he was incapable of being impartial.

In the present case the complainer avers in the Bill that during the period when the justice was a neighbour of the complainer "there had been arguments and disputes between the two men". As regards that allegation, we accept and proceed upon the information provided by the justice in his report, according to which the only occasion on which there was any complaint by one against the other was when the justice had to chide the complainer about the way in which his dog was allowed to roam loose and was inclined to snap. This occurred on some date during a period of about five years when they were neighbours. There is nothing to indicate that there was any continuing difficulty between them. We do not attach any significance to the fact that the wife of the justice objected to the planning application which had been made by the complainer. We accept that this objection was not based on any trouble between the justice and the complainer. It is difficult, in any event, to conceive how a relevant objection to proposed development could have been based on such a ground. In these circumstances there was only one previous incident between the two men, if that is the right way to describe what the justice said to the complainer about his dog.

It is important in our view to take a realistic approach to the fact that a justice has previous knowledge of or contact with other members of the local community. It would be extremely difficult for justices to carry out their work if they required to decline to sit merely because they had encountered an accused on some previous occasion. We would refer by way of comparison to the observations of the Lord Justice General (Hope) in giving the Opinion of the Court in McPherson v. Hamilton; Penman v. Hamilton 1990 S.C.C.R. 270 at page 272. He observed that a justice in the District Court must inevitably have to deal from time to time with persons who have already appeared before him on some other occasion for one reason or another and against whom he has taken decisions. He said:

At the same time, a prior connection or relationship with an accused may well show that the justice should not sit, or at least that he should raise the matter in open court so that the solicitor for the accused has the opportunity of making an objection or of waiving it.

In the present case we are not satisfied that the circumstances were such as to create suspicion that the justice could not bring an impartial mind to bear on the case. The only previous occasion on which there was anything which possibly approached a disagreement between them appears to have been an isolated and relatively minor matter. The fact that no point was taken on behalf of the complainer is of some significance in indicating the weakness of the potential objection, although it does not entail that the complainer cannot be heard to complain about the fact that the justice proceeded to sit in this case. It is plain from the report that the justice applied his mind to whether he should disqualify himself from presiding. No doubt this indicates that his decision to proceed was a considered one. On the other hand the mere fact that he had occasion to consider the point tends to support the view, which we ourselves have formed, that it would have been better if he had mentioned the point so that it could be discussed in open court. However, his failure to do so did not mean that justice was not seen to be done. There is nothing to show that justice was not done.

In these circumstances we shall refuse to pass the Bill.