HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
THE HON. LORD PROSSER
BILL OF SUSPENSION
KENNETH WILLIAM MILTON
PROCURATOR FISCAL, Perth
12 January 1998
This Bill of Suspension is brought by Kenneth William Milton in respect of a conviction for theft at Perth Sheriff Court on 26 January 1995. The theft in question was the theft of a golf club. It is not necessary to go into the surrounding circumstances in any great detail. The golf club which is said to have been stolen was admittedly removed by the complainer and the case turns really on the fact that he says that in removing it he was playing a practical joke. Even if that were not the case, it is not entirely clear what the facts were which would have raised this to the level of actual theft. But the issue that concerns us in the appeal turns on certain remarks attributed to the sheriff which are said to justify setting aside his verdict.
What is said in terms of the Bill of Suspension is that in the course of the evidence of the complainer's wife, the sheriff said to the witness, and with reference to the removal of the club in question, words to the following effect:
"That could not possibly have been a practical joke. It was the most important golfing day of this man's life. This went beyond a normal practical joke."
The answers which have been submitted for the procurator fiscal in response, admit that in the course of the evidence of Mrs Milton the sheriff made a remark upon the lines of "Surely that went beyond a practical joke". Mr McBride for the complainer noted of course that these two versions are not identical. It is plain that each was founded upon the perception of the party in question. So far as the version contained in the Bill is concerned we were informed that the words were based upon a written note taken by the agent at the time. The submission was that whatever the precise words it was evident that the sheriff had reached what was or would appear to be a concluded view upon the acceptability of the defence account of matters. He had expressed this view during the course of the evidence and that was sufficient, it was said, to taint the eventual decision, it being an indication that the sheriff had or might have made up his mind during the course of the evidence. We were referred to the case of Miller v Lees 1991 SCCR p. 799 where a sheriff expressly indicated his position on the acceptance of evidence while evidence was still being given.
In addition to the remarks that we have quoted, it is said that a further remark was made by the sheriff during the course of the same witness's evidence where the sheriff is alleged to have said "Oh come on Mrs Milton, live in the real world". The answers admit that in the course of Mrs Milton's evidence the sheriff made a remark about living in the real world. In the answers it was explained that that remark was made in the context of Mrs Milton being cross-examined by the Depute as to whether she and the complainer had discussed in detail the events of the date in question and Mrs Milton having denied that they had. This matter was not put forward as in itself establishing that the sheriff had gone too far but it was indicated that when taken with the other remarks he had indeed gone beyond the proper scope of the duties of a judge. It is of course accepted that the function of a judge is to raise matters which require clarification and the like and it was submitted that these remarks could not be seen as falling within that category.
We have a good deal of hesitation about intervening on the basis of precise words attributed to a sheriff in circumstances such as this. There are no doubt many ways in which a matter can be put to a witness well within the ordinary role of the judge in clarifying or trying to give the witness an opportunity to give further detail which may be seen as necessary in order to clarify the position. It is unfortunate that in this case the sheriff himself has no recollection of the words attributed to him. While we have some hesitation about intervening, in the absence of any contradiction from the sheriff we think it right to proceed upon the basis that remarks were made either in the words actually quoted in the Bill or in some form very like that. Moreover we think it right to proceed upon the basis that these were, as they are described, remarks rather than questions put as a hypothetical matter to the witness. That being so we have come to the view that the verdict cannot safely stand and that there was a risk in the light of such remarks that justice was not evidently being done. In view of that risk and in the absence of any ability on the part of the sheriff to explain that further, we are satisfied that the conviction cannot stand. It will be set aside, the pleas in law will be sustained and the Bill will be passed. We would add that while it was accepted on behalf of the complainer that the Crown would be entitled to seek a new prosecution since nothing turned on what had happened in the evidence, the Advocate Depute expressly indicated that he sought no authority to do that.