APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Eassie Lady Smith Sheriff Principal Lockhart	[2009] HCJAC 70 Appeal No: XJ251/09 OPINION OF THE COURT delivered by LORD EASSIE in APPEAL BY STATED CASE by ANDREW GAVIN DICKSON Appellant; against PROCURATOR FISCAL, DUMFRIES Respondent: _______

Appellant: McBride, Q,C.; Paterson Bell Ltd

Respondent: Ferguson, Q.C. A.D.; Crown Agent

11 August 2009

[1] The appellant in this appeal by stated case was prosecuted on a summary complaint containing a single charge in these terms:

"On 06 November 2007 at Cell D11 HM Prison, Terregles Street, Dumfries, you ANDREW GAVIN DICKSON did assault Lee Martin Dobson and did charge at him, knock him backwards, grab him by the head and force him to the ground."

The appellant pled not guilty and the subsequent trial took place over three consecutive days.

[2] At the conclusion of the evidence for both the prosecution and the defence, the procurator fiscal depute conducting the trial made a motion, opposed by the defence, to amend the libel by inserting after the phrase "and did charge at him" the words "punch him". This reflected the evidence led from the complainer, without objection from the defence, that a punch had been delivered to him in the course of the other circumstances of the assault to which he spoke. The Sheriff convicted in terms of the amended libel. At the time of the offence with which he was charged the appellant was a prison officer serving in HMP Dumfries.

[3] The first question posed by the Sheriff in the stated case is in these terms:

"Should I have allows (sic) the amendment to the charge by adding the words 'punch him'?"

At the outset of his submissions to us counsel for the appellant made plain that the propriety of the allowance of that amendment could not be open to any challenge. The Sheriff, he recognised, was well entitled to grant the Crown motion. It follows that, by concession, the first question in the stated case should be answered in the positive.

[4] The second question contained in the stated case is couched thus:

"Was I entitled to allow the reference to a punch as part of the charge to remain in the absence of corroboration?"

The context in which the Sheriff included this question for consideration by this Court was a contention advanced in the application for the stated case that this particular aspect of the (amended) charge - namely the infliction of a punch - required specific corroboration, that is to say, corroboration other than the corroborating evidence available for the charge of assault as a whole. Counsel for the appellant made equally plain in the early course of his submission to us that he considered this contention also to be unsupportable. While he had other reasons, relating to the credibility of the complainer, for saying that the Sheriff should not have convicted of a libel including the averment of the delivery of a punch, counsel for the appellant volunteered his acceptance that the "absence of corroboration" element in the second question was not an arguable reason for excluding a conviction containing reference to the punch. While in the discussion before us it appeared to be a nice question whether in the light of that concession by counsel the question should be treated as superseded, or should be answered in the positive, or should receive an answer in amended form, we consider that, without prejudice to the other argument to which we have just alluded, since the question is truly focused on the absence of corroboration, it should be answered in the positive.

[5] The third question in the stated case is in these terms:

"Was I entitled to find Mr Lee Dobson as a credible and reliable witness in respect of his evidence?"

In order to understand inter alia the submissions made in respect of this question, it is appropriate first to set out some of the findings in fact made by the Sheriff, namely those which essentially record the nature of the assault found by the Sheriff to have been established:

"1. On 06 November 2007 Lee Martin Dobson was remanded in custody from Dumfries Sheriff Court and was taken to HM Prison Dumfries, Terregles Street, Dumfries.

2. After going through the reception procedure at about 3.00pm he was allocated Cell 11 in D Hall. This cell is rectangular being approximate 7 ft long and 10 ft wide. On entering through the cell door there is a wall to the immediate right with a door to a toilet at the far right end of that wall. On 06 November to the immediate left was a cabinet 2 ft wide on which were was a TV. This cabinet occupied the whole of the wall area beside it and to the left of the door to the point where it met the wall which ran at right angles to it. Opposite the cabinet was a bed which was approximately 6 ft 6 ins long and 21/2 ft wide. It was against the back wall. Accordingly, there was a gap of 21/2 ft between the cabinet and the bed. There was a gap of 31/2 ft between the foot of the bed and the toilet door.

3. There were two chairs in the cell and at 7.00pm on 06 November 2006 Mr Dobson was seated adjacent to the bed in a chair watching the television. The other chair was in the area between the door and the chair in which Mr Dobson was sitting. Mr Dobson wanted his prescribed methadone at that time.

4. During the time he was in the cell Mr Dobson had on three occasions pressed the bell which was for use in emergencies only. As a prisoner with a substantial criminal record and because it had been explained to him that afternoon Mr Dobson knew that the bell, which required to be answered by a prison officer, was for emergencies only. None of Mr Dobson's requirements, for paper to write a letter, for a brush to sweep his cell or for his prescribed methadone was an emergency. His persistent use of the emergency procedure was annoying to prison officers and on the final occasion, at around 7.00 pm, he left his finger on the bell for a considerable period.

5. The appellant attended outside Cell 11 and switched off the light showing the bell had been ringing. He then used his keys to effect entry. Mr Dobson, who remained seated, demanded his methadone. He was verbally abusive when the appellant correctly told him that he, Mr Dobson, would be taken to the medical area for his methadone when the time was available and there were officers available to escort him.

6. The appellant returned to the door area while Mr Dobson remained seated on the seat adjacent to the bed facing the cell door. There was a gap of more than 5 feet between the appellant and where Mr Dobson was seated. He told the appellant to "Fuck off" and the appellant then left the door area and charged at Mr Dobson. He tripped over the other chair and lost his balance and fell. Mr Dobson laughed at him and the appellant punched him to the left side of his face. The blow was delivered from a position while the appellant was still off his feet and while he still had one hand on the floor. Mr Dobson then stood up.

7. The appellant rose to his feet (he is 6 ft 6 ins in height and weighs in excess of 18 stone) and grabbed Mr Dobson, a slight built man, by the head dragging him to the ground. The appellant ended on top of Mr Dobson in the space between the bed and the cabinet. The appellant summoned help by radio and a number of colleagues attended.

8. Mr Dobson was restrained by the prison officers in a perfect text book 3 man restraint manoeuvre and was removed from the cell. He offered no resistance while he was restrained and remove from Cell 11.

9. Mr Dobson complained to Mr Ian Duff, the prison officer who supervised the manoeuvre that he had been punched in the face by the appellant. This was also heard by another officer involved in the restraint procedure, Mr Ian McIver. Mr Dobson complained that his face was bleeding but this was incorrect. He had redness to the left side of his face where he had been struck and where his face had been against the floor during the relevant procedure. The redness to his face was consistent with inter alia having been punched as described by Mr Dobson."

[6] As respects those findings in fact - which involved acceptance of the complainer as a credible and reliable witness also as respects the punch - counsel for the appellant advanced a submission respecting the credibility and reliability of the complainer which can be described as falling into two limbs or branches.

[7] The first of these might be described as the narrower branch. Against the background of Mr Dobson's evidence of having been punched by the appellant as the appellant was getting up off his feet after having tripped over the chair to Mr Dobson's hilarity, the contention that the complainer should not have been believed in that particular respect focused on the evidence of the prison nurse, Miss Belford, summarised and commented upon by the Sheriff at pages 12-13 of the print, in his note to the findings in fact. The Sheriff says this:

"Evidence was also led from Jean Belford a practitioner nurse at the prison. She had examined Mr Dobson in the observation area and noticed redness to the side of his face. In her professional opinion this was entirely consistent with his head having been pressed to the floor in the course of a restraint procedure. When asked as to what she would have expected had Mr Dobson been punched to the side of the face she indicated that she would have expected far more evidence of injury and possibly a cut.

No attempt was made to describe to Miss Belford the circumstances in which Mr Dobson stated he had been struck namely that his assailant had been on the ground supporting himself with one hand and hitting out with the other.

Accordingly, while I did not find that Miss Belford's evidence in any way assisted the Crown in their assertion that there had been a punch I did not find that her evidence detracted from it because the alleged scenario had not been explained to her and she was clearly speaking about a normal full range punch blow delivered whilst standing up and with a normal swing and force."

It was said by counsel for the appellant that Miss Belford's evidence of her expectation of more evidence of injury, and possibly a cut, were the complainer to have been punched was in conflict with the complainer's account and therefore did not have the neutral nature found by the Sheriff. Counsel submitted that the evidence of Miss Belford was thus strongly supportive of the defence.

[8] In considering this contention we think it important to bear in mind that the summary given by the Sheriff of the evidence of the nurse is not a verbatim report of that evidence. The Sheriff however did have the advantage of hearing the full verbal exchange between the cross-examiner and the witness and was thus in a position to form an impression of what the witness had in mind as respects the nature of the punch when expressing the opinion which she did. The Sheriff states, in the passage quoted above, that the nurse "was clearly speaking about a normal full range punch blow delivered while standing up and with a normal swing and force". That was not the nature of the punching action described by the complainer in his evidence. The complainer said that the blow was not severe (see, page 9 of the print, the note to the findings in fact). It is a matter of ordinary experience and common sense that the extent of injury, if any, from a punch will depend on the force with which it is delivered. We would add that the fact that the subsequent restraint procedures may have caused reddening to the same area of the complainer's face as to that on which the punch was said to have been received does not mean that reddening of that area was not present prior to the execution of the restraint procedures.

[9] Accordingly we are unable to regard the criticisms advanced by counsel of the Sheriff's evaluation of the evidence of Miss Belford as being persuasive. In particular we are not persuaded that her evidence required to be treated as destructive of the complainer's evidence that he had been punched in the manner and circumstances described with him with the consequence that, whatever else may have been proved in the prosecution, the Sheriff could not properly have convicted of a libel containing the reference to a punch which was inserted by the amendment to which we referred above.

[10] We turn now to the broader branch of the submission respecting this third question in the stated case, relating to Mr Dobson's credibility and reliability.

[11] Counsel for the appellant accepted, in our view rightly, that, leaving aside the subsidiary issue of the punch, if the complainer were to be accepted as credible and reliable respecting the other aspects of the assault, there was sufficient corroborative evidence and the Sheriff would have been entitled to convict. Counsel's contention was however that no reasonable sheriff could have accepted the complainer in any respect concerning the assault as a credible and reliable witness. And the submission respecting the third question turned essentially on that particular contention.

[12] In support of that broader contention counsel again invoked the issue of the claimed incompatibility between the between the evidence of the complainer as to his having been punched in the course of the episode and the evidence of nurse Belford which we have already discussed. For the reasons already explained, we are not persuaded of the soundness of that submission. Counsel further invoked the fact that there were inconsistencies between a prior statement from the complainer noted by the police and his evidence on oath. Counsel also prayed in aid, understandably somewhat faintly, the fact that the complainer was a drug addict; his record of previous criminal convictions; and his obstructive and quarrelsome behaviour, spoken to by others, on the evening in question.

[13] The Sheriff discusses Mr Dobson's credibility and reliability at a number of points in his note.

[14] At page 17 of the print of the stated case the Sheriff says:

"I was convinced of the reliability and strength of the Crown's case because of the demeanour of Mr Dobson in the witness box compared to that of Mr Dickson. Mr Dobson seemed to me to be straightforward in his evidence under oath, he did not seek to exaggerate to me the nature of the attack upon him and he was straightforward about his provocative and very annoying behaviour. He had complained about the assault immediately to other officers. He had persisted in it later to Mr Duff and again to Mr Reston and he found support for his allegation that Mr Dickson had charged at him and grabbed the back of his head before bringing him to the ground from the statement written and signed by the appellant himself. I accepted as accurate and truthful that having fallen to the ground after charging at him and heard Mr Dobson laughing at him that Mr Dickson punched Mr Dobson once."

To put that passage better into context it is appropriate to quote the further findings in fact of the Sheriff:

"13. The appellant completed a form for a suspected breach of discipline alleging a breach of code Rule 113Q by using threatening, abusive or insulting words or behaviour. He did not allege on the form that he had been assaulted nor that an attempt had been made to assault him.

14. The appellant in his written report stated that Mr Dobson was consistently pressing his buzzer and stated that he wanted his methadone. After recording an exchange of comments between Mr Dobson and himself he wrote 'Without warning Mr Dobson jumped from his chair and came towards myself in an aggressive manner shouting "Take me to the fucking basement, I'm going to smash this fucking place up". At this point I charged Mr Dobson pushing him to the back of the cell. I then grabbed the back of his head and forced him to the floor.' Thereafter the appellant's report records that he radioed for assistance and that Mr Dobson was properly restrained and removed to the observation suite.

15. On 07 November the Assistant Prison Governor, Mr Craig Reston, convened a discipline inquiry at which Mr Dobson, Mr Duff and the appellant were present. The appellant read out his statement and Mr Reston asked him if he was sure that that was what had happened. The appellant said it was. Mr Dobson said he had been punched by the appellant. Mr Reston, because of his concern at the appellant's statement that he had 'charged towards Mr Dobson knocking him to the back of the cell' and had then grabbed his head and forced him to the floor stopped the inquiry and instructed that the police should be informed. Even without Mr Dobson's assertion that he had been punched, Mr Reston would have stopped the inquiry and instructed that the police be informed as he considered the appellant's written statement which he had adopted, amounted to an account of assault.

16. The video of the various movements of the appellant from the time of his arrival at the cell were viewed by Mr Reston. In his professional opinion, even if Mr Dobson had come towards him in an aggressive manner, the appellant had sufficient time to leave the cell closing the door behind him, thereby avoiding any conflict.

17. The video records the appellant's arrival at the cell, his entering it and then reappearing at the door which remained partially open. He remained at the door with a hand on it before pushing it wide open with force and disappearing from view. Thirty-four seconds later the first of his colleagues arrived and entered the cell. Thereafter Mr Dobson was removed from the cell."

[15] At the foot of page 18ff of the print the Sheriff narrates and addresses the submissions advanced at the trial respecting Mr Dobson's credibility and reliability and his assessment of those criticisms. The passage is in these terms:

"Mr McKie [the solicitor representing the appellant at trial] on behalf of his client sought to discredit Mr Dobson's evidence. While I accept that there were clear discrepancies between the version which Mr Dobson had given to the police which involved more than one blow and suggested that the use of the emergency button had related firstly to the need for a brush and then for paper rather than the other way round, and while I accepted the evidence given by Officer Johnstone that on a previous occasion in December 2006 Mr Dobson had been aggressive towards an officer and that on 06 November he was aggressive in that observation suite to other officers I did not consider that these factors raised in my mind a doubt as to the credibility and reliability of Mr Dobson in the evidence which he gave as to what occurred in cell 11 on the evening of 6 November.

He was clear and straightforward about the circumstances of how the appellant had charged at him, tripped, struck out, grabbed the back of his head, pushed him to the back of the cell and pulled him to the ground before lying on top of him. He did not try to embellish his story and he was frank about his annoying and provocative attitude.

I consider it important to note that he had from the start alleged that he had been struck and that the video showed an apparent violent pushing of the door wide open by the appellant before he finally disappeared into the cell (presumably on his own statement to 'charge towards' Mr Dobson). There was sufficient credible and reliable evidence based on Mr Dobson's statement, Mr Dickson's written statement and the supporting evidence given by in particular Mr Reston which entitled me to reach the sad conclusion that this was a case of a prison officer who had reacted physical (sic) to verbal provocation."

For completeness we record that as respects the terms of the prior statement noted by the police from Mr Dobson the Sheriff (p8 of the print) reports thus:

"His [Mr Dobson's] evidence was clear and he did not budge from it. Where it disagreed with what he was told he had stated to the police ... Mr Dobson maintained that he could not recollect what he had told the police, he did not recollect signing any statement and that his evidence in Court was what had happened.

Amongst the differences between his statement to the police and that which he gave in Court was that to the police officer he said he had been struck more than once. Mr Dobson was challenged about this but maintained that the true position was that there had been one blow to the side of his face. His version in Court was less serious than that contained in the statement he gave to the Detective Sergeant."

[16] It is thus evident that the Sheriff was clearly aware of the complainer's addiction; his previous convictions including convictions for dishonesty; and the existence of discrepancies between what was (a) noted by the police officer of the complainer's statement to that officer and (b) the complainer's testimony on oath. But none of these required or dictated that the Sheriff find Mr Dobson untruthful or unreliable. In our view, as a trier of fact and having considered those matters the Sheriff was entitled to form the assessment of Mr Dobson's evidence which he did.

[17] As part of that broader limb of the submission, counsel for the appellant also averted to the evidence of a defence witness, Mr George Stewart, whom the Sheriff "found impressive". Counsel referred in particular to the passage within the Sheriff's summary of Mr Stewart's evidence at the foot of page 15 of the print:

"His evidence was clear that prison officers (like police officers) frequently find themselves in situations in which they are under physical threat. It is appropriate for them to react in a moderate manner consistent with their safety and it is with this in mind that a three man restraint procedure is to be operated. Mr Stewart confirmed that based on what he had heard from the point that other officers joined Mr Dickson in the cell that the correct and proper procedure had been applied. This was supported by the video which showed pictures of Mr Dobson being carried out of the cell by the officers concerned under supervision of other officers, including Mr Duff."

[18] However, it is important to note that in that passage what is being discussed is the execution of restraint procedures after the alleged assault, when other officers had joined the appellant. The Sheriff goes on to note that Mr Stewart agreed that the critical issue was that which the Sheriff identified, namely whether the appellant had been "justified in charging towards Mr Dobson, knocking him to the back of the cell, grabbing Mr Dobson by the back of the head and bringing him to the ground."

[19] As respects that matter the Sheriff goes on to report Mr Stewart's evidence in these terms:

"The important issue so far as Mr Stewart was concerned was whether Mr Dobson had invaded the appellant's space and that the appellant had considered that he was under danger of physical attack. He indicated that in his opinion it was difficult to understand how if that was so it was necessary for the appellant to drive Mr Dickson across the cell to the back and that this would be 'exceptional'. He also agreed that if Mr Dobson had been some space away from Mr Dickson that it would not be necessary for the appellant to become involved in any physical confrontation as his presence at the door would have enabled him to pull the door behind him leaving the prisoner inside.

In his evidence Mr Stewart spoke to a report he had prepared based on the statements he had received and what he had understood to be the appellant's version. In it, and Mr Stewart confirmed this on his evidence, where there is a potential conflict situation it is normal for a person to maintain a space of 0.5 and 1.2 metres - 'safe separation'. If this is reduced for any reason below 0.5 metres then 'intimate space' will have been encroached upon. To exacerbate this solution it may be that a person raises his voice or becomes abusive or non co-operative and makes threatening gestures.

Mr Stewart stated that the resolution to this situation can be if a person backs down and walks away. Alternatively, that person may take the initiative and create space between the parties by the minimum use of force in a body check or the use of fend off techniques which generally means taking with one or two hands the other person to a safe distance. This allows the reassessment of options.

He agreed that if the appellant had had this intimate space invaded that it was 'extraordinary and exceptional' that he had not only projected Mr Dobson the length of the cell but had followed up by taking hold of his head (and not his clothing as the procedure requires) and had forced Mr Dobson to the ground when he had an open door through which he could have retreated."

In our view the evidence of Mr Stewart, far from having the negative effect on Mr Dobson's credibility for which counsel's opening part of his submissions respecting Mr Stewart's evidence contended, can be seen as being, on the contrary, supportive of the Crown case.

[20] In these circumstances we are well satisfied that the Sheriff was entitled to find the complainer credible and reliable as respects all material matters. As the Advocate depute pointed out under reference to Ruben v HM Advocate 1984 S.C.C.R. 86, 103 such questions of credibility and reliability are primarily a matter for the trier of facts. We must accordingly answer the third question in the stated case in the positive.

[21] The fourth question in the stated case is in these terms:

"Was I entitled to convict the appellant on the facts admitted or proved?"

No argument was addressed to us to the effect that on the facts found by him the Sheriff was not entitled to convict and we therefore answer this question in the positive.

[22] The final question posed in the stated case reads thus:

"Did my intervention during the evidence of Mr Ian McIver cause a miscarriage of justice?"

[23] The intervention in question was described in the application for the stated case (para. 2(b)(vi)) in these terms:

"In the course of the Crown case, when witness Ian McIver, a prison officer gave evidence, the Sheriff interjected in the course of the witness giving evidence, saying to him 'You seem to be very keen to support the defence case. I am not satisfied you are telling the whole truth. You're very keen to give information which will help your pal'. These remarks were highly inappropriate and would lead any reasonable observer of the proceedings to conclude that the Sheriff had formed an adverse view of the defence case at an early stage in the Trial and accordingly justice was not done and was not seen to be done and in these circumstances, there has been a miscarriage of justice."

[24] In response to the particular terms of that sub-paragraph of the application for the stated case the Sheriff, in addition to stating the question set out above, states (p. 20 of the print) this:

"A further point is taken by the appellant in relation to what occurred during the evidence of Mr Ian McIver. Mr McInver gave evidence that he was an experienced prison officer who had responded to the call for help from the appellant. He was not the first supporting officer to arrive at the cell but had remained and assisted in removing Mr Dobson from the cell.

Mr McIver's evidence was evasive and repeatedly he prevaricated. Despite requests from the fiscal he persisted in avoiding answering questions or supplementing the answer with a piece of information which had not been sought. He was warned by me about his evidence and was also warned by the fiscal. He persisted in stating that he could not recall Mr Dobson saying anything despite being reminded that he had given a statement to police officers which indicated that he had heard Mr Dobson make certain remarks. He persisted in using vague words in relation to his description of events.

Mr McIver's evidence continued to cause concern and he was asked by the fiscal if he had observed any marks on Mr Dobson's face. He replied that he had and these had been caused by the pressure of his face being pressed to the ground in the course of the restraint procedure. The fiscal reminded him that the question had been whether he had seen any remarks and he again repeated the answer emphasising that the cause of the marks was the pressure to the ground.

At that point and in light of the warnings which both the fiscal and I had given him I make a remark which on reflection I accept was ill-advised by its terms. I cannot remember the exact words but they were along the lines of 'you seem to be very keen to support the defence case. I am not satisfied you are telling the whole truth. You are very keen to give information which will help your pals'. I am quite clear that I did not say that he was helping his pal i.e. referring to the accused but that I was indicating that he appeared keen to support his professional colleagues namely prison officers. I recollect continuing to point out to him that his duty was to tell the whole truth rather than only tell me points which were in favour of prison officers as opposed to a prisoner.

I regret this remark is interpreted as prejudicial but certainly no complaint was made by Mr McKie about it at the time. My assertion that Mr McIver was not telling the whole truth proved to be correct as he was later in his evidence to admit that he had heard Mr Dobson say certain things including that he had been punched by Mr Dickson. He also agreed that he was not certain which side of the face had been near to the ground. Other officers were however clear that the left side of Mr Dobson's face was nearest the floor.

Mr McIver's evidence was so unsatisfactory that I required him to remain in court during the remainder of the case. The procurator fiscal indicated to me that he wished to consider his position as to whether the Crown should take proceedings in relation to the standard of the witness' evidence but ultimately advised me that the Crown had decided not to do so.

I thereafter arranged for Mr McIver to obtain legal advice and having heard his solicitor explain that Mr McIver had certain personal problems, that his natural way of expressing himself was imprecise and that he had been nervous in the witness box I decided to take no action.

My assessment of Mr McIver's evidence did nothing to detract from my duty to assess the evidence as a whole, to decide whether the Crown had established its case beyond a reasonable doubt and whether if they had established an assault had taken place."

[25] We would observe at the outset that in any dispute as to whether the Sheriff deployed the singular "pal" (as set out in the application for the Sheriff's stated case) or the plural "pals" we have to accept the Sheriff's report. But perhaps more importantly, we do not find the issue of his employment of the singular as opposed to the plural to be of any real materiality. While the reference to the plural might be seen as indicating a lack of particular attention to the appellant, as was pointed out in the discussion before us, if the reference were in the plural to a notion of "esprit de corps", that was nonetheless a reference also encompassing the appellant.

[26] Counsel for the appellant approached his submissions under this branch of his argument by reference to what was said in Hogg v Normand 1992 S.C.C.R. 26. But then, it having been pointed out to him that there were subsequent judicial discussions of this issue, expressed his contentment to proceed on the "reasonable onlooker" test developed in later cases. For his part the Advocate depute referred us to the passage in paragraph [3] of the Opinion of Lord Bingham in Kearney v HM Advocate [2005] UKPC D1; 2006 SC (PC) 1 reflecting what had been said in Porter v McGill [2001] UKHL 67; [2002] 2 AC 357 as being the appropriate test for deployment in this area namely: "whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased".

[27] In our view the test to be applied in this case is therefore that of the fair minded and informed observer. But we would observe that the fair minded and informed observer is, of course, not to be taken as having viewed only the Sheriff's intervention of which complaint is made. The observer, being informed, must, in our view, be taken to have seen all that preceded and followed the Sheriff's intervention.

[28] Accordingly, the fair minded observer would be aware that the witness, Mr McIver, was a prevaricating witness to whom warnings had already been given by the procurator fiscal depute and also by the Sheriff about respectively the unsatisfactory nature of his giving of his evidence; the need to answer questions truthfully; and the need to confine himself to the subject matter of the questions asked. Regrettably any judge presiding in a trial in a legal system which has as its basis the giving of oral evidence on oath as the primary material for fact finding must on occasion have to deal with unsatisfactory, prevaricating witnesses (and also witnesses committing evident or possible perjury). In so dealing the presiding judge will require to issue warnings and admonitions to the witness to tell the truth and to perform his duty, on oath or affirmation, as a witness. The very exercise of that responsibility to warn, admonish and thus encourage the witness necessarily involves the expression of a negative view of the witness at that point and his testimony as so far given. The Sheriff's comments to the witness, Mr McIver, of which complaint is made, must therefore be seen in the particular context of his having been under the earlier, and still subsisting, necessity of displaying a negative view of the evidence thus far tendered by Mr McIver. They must also be seen in the context of Mr McIver's admitting, after the Sheriff's comments had been made, that he had in fact heard Mr Dobson say certain things which, earlier in his testimony, he had persistently stated he could not remember having heard.

[29] A further aspect of the context in which the Sheriff's remarks must be seen by the observer is that other prison officers gave evidence - on much the same matters as those covered in the examination, or attempted examination, of Mr McIver - without any adverse comments being made to them about the tenor of their evidence or the manner of their giving it.

[30] In these circumstances we have come to the view that while, as the Sheriff on reflection accepted, the remarks which he made may not have been well advised, the fair minded and informed observer would see them as infelicitously couched but as being part and parcel of dealing with a prevaricating witness and not as demonstrating any animus against the accused or any premature rejection of the defence position.

[31] We therefore conclude that we should answer the fifth question in the negative.

[32] It follows from what we have said by way of answer to all of these questions that this appeal by stated case fails.