Appellant: G Markie, Solicitor Advocate; George More & Co

Respondent: A Miller, AD; the Crown Agent

7 December 2012

[1] On 24 July 2012, in the dedicated domestic abuse court at Edinburgh Sheriff Court, the appellant appeared for trial on charges of assaulting his cohabitee on 6 May 2012 at an address in the city. The complainer had commenced her evidence on that date, but the trial required to be adjourned until 2 August, before her evidence-in-chief had been completed. She failed to appear at the continue diet and a warrant was granted for her arrest. The case again called on 9 October, when evidence-in-chief continued and was completed in short compass.

[2] The sheriff reports that, during the continued examination of the complainer, the appellant was making a variety of "extreme facial expressions from time to time which may be best described as 'smirking'". He was doing that whilst looking in the direction of the complainer, the sheriff and his own agent. When cross-examining the complainer, the sheriff notes that the appellant's agent took up a position near the dock and slightly beyond the appellant, so that the complainer had the appellant in her field of vision when responding to the agent's questions. The sheriff noted that, as the cross-examination continued, the appellant's smirking continued and became more exaggerated. She became concerned about the effect of his conduct on the complainer's ability to give her evidence. This was combined with what the sheriff considered to be an unnecessarily aggressive tone in the questions. The sheriff determined to interrupt the cross-examination and did so, stating that she had observed the appellant "smirking" and that she considered that to be distracting and intimidating. She also expressed the view that she regarded the agent's manner as unnecessarily intimidating.

[3] The appellant's agent took umbrage at this and moved the sheriff to decline jurisdiction on the ground that she had held the appellant's actions to be distracting and intimidating and that justice could no longer be seen to be done (Bradford v McLeod 1985 SCCR 379). The sheriff refused to accede to that motion. She explained, again, that her concerns were in relation to the effect of the conduct of the appellant, and his agent, on the complainer's ability to give her evidence properly. She arranged for screens to be introduced and the cross-examination was completed without further disruption. The appellant's facial expressions reverted to normal. Cross-examination, whilst forceful, ceased to be unnecessarily aggressive. Having heard all of the evidence in the case, the sheriff found the appellant guilty of the charge of assault. Sentence has been deferred until 11 December 2012.

[4] The sheriff has explained in her report that she regards it as her duty to ensure that proceedings in her court are conducted fairly, so far as both the accused and witnesses are concerned. Inappropriate behaviour, therefore, requires to be addressed immediately so that, for example, a witness can give evidence without fear of intimidation.

[5] The appellant has presented a Bill of Suspension in respect of the conviction. This Bill does not suggest that the sheriff's remarks, in relation to the conduct of the appellant, were not accurate. The contention is that justice could no longer be seen to be done, standing her approach at the time.

[6] An accused person is entitled to have his trial dealt with by an impartial court and that impartiality has to be objectively verifiable. In Bradford v McLeod the Lord Justice Clerk (Ross) (at 382) and Lord Hunter (at 383-4) approved the dictum of Eve J in Law v Chartered Institute of Patent Agents (1919) 2 Ch 276 (at 289) that:

"If there are circumstances so affecting a person acting in a judicial capacity as to be calculated 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".

If the impartial and informed observer would take the view that the sheriff had prejudged the case against the appellant by reason of her conduct during the trial, then justice will not have been seen to have been done.

[7] The informed and impartial observer, who appears to have taken the place of the reasonable man, would have in mind the need for a court to control the proceedings before it and to ensure that witnesses are able to give their evidence in a dignified fashion, without harassment by way of intimidation or unnecessary aggression. A sheriff has a duty to control the proceedings before him/her and, in particular, to intervene when the actions of an accused person in the dock are perceived to be intimidating of a witness, or when cross-examination, or indeed examination-in-chief, strays into the unnecessarily aggressive. The observer would perceive the actions of the sheriff in this case as entirely justified and would not take them to mean that the sheriff was thereby prejudiced against the accused. Indeed, it would only be fair to an accused person, who was apparently engaged in an exercise of intimidation, or to an agent who was indulging in overly aggressive cross-examination, for the sheriff to intervene at the earliest possible stage to ensure that that conduct did not continue or, if unintended, to allow an appropriate explanation to be proffered. Thereafter, the trial could proceed in a manner which was fair to all.

[8] The court will refuse to pass the Bill.

DL