Appellant: Brodie QC AD; Crown Agent

Respondent: Shead; Drummond Miller (for Graeme Murray & Co, Aberdeen)

28 April 2011

[1] The respondent was charged at the instance of the appellant with careless or inconsiderate driving contrary to section 3 of the Road Traffic Act 1988 and was prosecuted in Aberdeen Justice of the Peace Court. The charge was brought following a report to the police by a Justice of the Peace who sits regularly in that court. He is to be one of the principal Crown witnesses. In light of that, special arrangements were made for the trial, which was scheduled to take place on 10 November 2010. A Justice who normally sits in Banff agreed to travel to Aberdeen to hear the trial and it was arranged that a legal adviser who normally works in Inverness would fulfil that role during the trial.

[2] The trial did not proceed on the day set, but instead the respondent's agent moved to be allowed to lodge a devolution minute late. That motion was granted and the devolution minute was debated and determined on 15 December 2010. The court minute recording the determination is in these terms:

"The Court, having heard the Crown and the agent for the accused on the foregoing Devolution Minute, Upheld said Minute and the accused was accordingly acquitted of the charge. The Crown sought leave to Appeal said decision, which was Granted, on charge 1."

There is only one charge on the complaint.

[3] The devolution minute made reference to Articles 6 and 8 of the European Convention on Human Rights and Fundamental Freedoms, but specified a challenge confined to Article 6 only as follows:

"That the Crown in full knowledge that the principal witness for the Crown presides as a Justice of the Peace on a regular basis within the Justice of the Peace Court in Aberdeen, chose to prosecute this case in the Justice of the Peace Court in Aberdeen. The representations were made to the Crown on behalf of the Minuter that this matter should be deserted and re-raised in the Sheriff Court as a more appropriate forum. The Crown delayed or refused to consider this proposal and have insisted that the matter proceed in the Justice of the Peace Court in Aberdeen therefore the action of the Crown, in attempting to prosecute this matter in the Justice of the Peace Court in Aberdeen infringes the Minuter's right to a fair Trial."

The minute contained no more specification of the basis for that proposition.

[4] In his report to this court the presiding Justice sets out his analysis of the situation as follows:

"Having heard the two sides I retired to consider the arguments presented and the cases cited. I also took the advice of Mr Lorimer that the cases cited, whilst useful in illustrating the circumstances in which a perception of bias might and might not arise, they could not give the comfort of definitive guidance because each case must be decided on its own facts. He drew my attention to a paragraph in the judgement of Lord Justice-Clerk Ross in the case of Bradford v MacLeod at page 382, quoting with approval this dictum;

"...he must bring to the discharge of that duty an unbiased and impartial mind. If he has a bias which renders him otherwise than an impartial judge he is disqualified from performing his duty. Nay, more (so jealous is the policy of our law of the purity of the administration of justice), if there are circumstances so affecting a person acting in a judicial capacity as to be calculate to create in the mind of a reasonable man a suspicion of that person's impartiality, those circumstances are themselves sufficient to disqualify although in fact no bias exists."

I accepted Mr Lorimer's advice, repeated in open court, that if I was satisfied that the particular circumstances of this case might reasonably raise in the mind of an informed and impartial observer a doubt as to the impartiality of the court, then I should allow the minute, but that if I was not so satisfied then I should refuse the minute and fix a trial diet.

It was my view that an independent third party, being aware of the circumstances of this case, of the fact that Mr Hastie and I are both justices serving in the same Sheriffdom (albeit in different courts) and attending a number of the same training courses, with the degree of possible social contact that goes with that (although in fact I do not know Mr Hastie), might reasonably doubt that I would be able to treat his evidence with complete impartiality and, therefore I allowed the minute."

[5] Although it was accepted by both counsel that the Justice had applied the correct test, the Advocate depute challenged that determination as an error in law, both in the application of the appropriate test to the circumstances in this case and also in respect of its potential application to any Justice from any part of the Sheriffdom of Highlands, Islands and Grampian; if the Justice's views were correct they could be said to apply to a Justice from Stornoway or Shetland. The Advocate depute also submitted that, even if there was justification for the view the Justice took of his involvement in the case, his decision should have been confined to himself and those particular circumstances. The respondent should not have been acquitted; instead the Justice should have recused himself, thus keeping the complaint alive.

[6] We agree with counsel that, in a case of apparent bias such as this, the test to be applied is that set out in inter alia the opinion of the Lord Justice-Clerk (Ross) in Bradford v MacLeod 1985 SCCR 379. Further elaboration of that test is to be found in the speech of Lord Hope of Craighead in Porter v Magill [2001] UKHL 67, [2002] 2 AC 357 at paragraph 103 as follows:

"The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased."

There is no reason to doubt that that was the test applied by the Justice.

[7] The Advocate depute also made reference to Lawal v Northern Spirit Limited [2003] UKHL 35, [2003] ICR 856 relating to the position of counsel who was a part-time judge in the Employment Appeal Tribunal and sat there with one of the lay members of the Employment Appeal Tribunal panel before which he was appearing, and R v Abdroikov and others [2007] UKHL 37, [2007] 1 WLR 2679 relating to the position of serving police officers or solicitors in the prosecution service sitting as jurors. He submitted that these were interesting examples of the application of the test in practice which provide valuable general guidance, but related to circumstances quite different from those of the present case.

[8] In his submissions for the respondent Mr Shead founded upon the speech of Lord Bingham of Cornhill in R v Abdroikov and others, in particular paragraphs 24 and 26. In these paragraphs Lord Bingham referred to the bonds that exist in the police service and the instinct, however unconscious, of a police officer on the jury to prefer the evidence of a brother officer to that of a drug-addicted defendant to emphasise the importance in this context of the potential for unconscious bias. Mr Shead submitted that that was an obvious danger among Justices in a small court covering a small geographical area. The matter was one of impression. Unfortunately the Justice has not informed us whether that possibility featured in his thinking. Indeed his report does not identify any way in which he might be thought to be at risk of being unable to act impartially.

[9] We agree with the Advocate depute, and on this Mr Shead made no counter submission, that the proper course to follow is to consider specifically what information would be available to the informed observer of this particular case and, in the words of Lord Steyn in Lawal v Northern Spirit Ltd, to assume "that such an observer will adopt a balanced approach" to the assessment thereof, an "idea succinctly expressed in Johnson v Johnson (2000) 201 CLR 488, 509, paragraph 53, by Kirby J when he stated that 'a reasonable member of the public is neither complacent nor unduly sensitive or suspicious' ".

[10] The critical facts are these. The Justice witness and the presiding Justice sit in different districts of the Sheriffdom. The presiding Justice does not know the witness and is not aware of ever having met him. They may have attended a number of the same training courses, with a degree of possible social contact that goes with such attendance. We agree with the submission of the Advocate depute that it could not be taken from that by a reasonable observer that the presiding Justice would be inclined to accept the word of the witness as against the word of any other witness. It was not suggested that in this case there was likely to be a sharp issue of conflicting evidence; but even if there was, we do not consider that there is any basis in the foregoing for a reasonable observer to doubt the impartiality of the presiding Justice. There is nothing of the nature of a conflict of interest. He holds a judicial office for which he has sworn a judicial oath or made a judicial affirmation undertaking to administer justice impartially. He sits with a legally qualified legal adviser whose responsibility it is to explain to the Justice the law and its significance, including how to approach any issues in the evidence that may arise.

[11] At the end of the day the highest at which the case for the respondent can be stated is that, because the witness is also a judicial office holder, his evidence might be better received by a fellow judicial office holder. We consider that the circumstances as set out above do not provide a basis on which a reasonable member of the public, who was neither complacent nor unduly sensitive or suspicious, would conclude that there was a real possibility of the presiding Justice failing to act impartially. For these reasons we consider that the Justice erred in law in sustaining the devolution minute. We shall therefore recall the decision of 15 December 2010 and remit the case to the Justice of the Peace Court at Aberdeen to proceed as accords. In all the circumstances it may be thought appropriate that a different Justice from another part of the Sheriffdom and a different legal adviser from another part of the Sheriffdom should sit at the trial.

[12] Although submissions were made to the Justice at the debate that taking proceedings in the Justice of the Peace Court in Aberdeen in itself infringed the respondent's right to a fair trial, in respect that the very fact that the Justice was a familiar face was likely to lead to his receiving preferential treatment from all authorities involved in the court process, to the detriment of the respondent's right to a fair trial, this part of the respondent's case was departed from before us.