Scottish Sheriff Court Decisions

This hearing arose from a finding of prevarication which I was obliged to make in the course of the witness, Cheryl Little's evidence. Her evidence was crucial to the Crown case to prove the charge of robbery against her partner the accused Craig Anstruther. The Crown relied upon a passage in evidence in which she said that the accused had told her that he had taken £15 or something from the taxi driver.

In examination in chief, she was asked whether she had had a conversation with her boyfriend, Craig Anstruther, relating to an assault and robbery upon the taxi driver. She said "During the time he was in my company he never spoke to me about the taxi driver".

Mr McMahon queried this reply and put it to the witness that she had seen Mrs McDonald, the Precognition Officer in his office. She had also been seen by police officers on 20^th and 30^th April.

On 30^th April she admitted having a conversation with the accused relating to the taxi trip. She was warned by Mr McMahon relating to the crime of perjury which was lying on oath. She was asked "Are you committing perjury?" She said "Yes I am".

She then elaborated upon her evidence and said "I had a conversation with Craig the next day. He said he "bumped" the taxi driver, meaning that he had failed to pay the taxi fare.

She went on to say "He said that the taxi driver tried to attack him but that was all he said". She then said "I can't remember if I said something different in the past".

I then warned her relating to prevarication.

She admitted that she had spoken to two police officers and she did say something different.

On 20^th April she said that she had told a police officer that the accused had hit a taxi driver. She said "Craig might have told me that".

She agreed that she had visited Craig in Saughton and spoken to him about the incident. He said that he had been attacked with a tyre lever and that he had done nothing. He said nothing about what he had done.

She then said "Craig said that he took £15 or something. He never said how he had got it".

Then she said "Craig told me that he had hit a taxi driver. He said that the taxi driver had come at him with a wheel wrench. He said nothing about the hammer". She agreed with Mr McMahon that she had first denied in her evidence that Craig had spoken to her.

She was then cross examined by Mr Martin in relation to her statement to the police, production 18. Mr Martin went over each line of the statement with her, putting it to her that that was all she had said. She said that the statement was the truth.

She then said "I'm not sure if Craig said that he was fighting with the taxi driver or that if he hit him".

In relation to page 3 of her statement, Mr Martin asked her "Where does it say that he picked up £15?" She admitted that this was not in the statement but insisted that he had told her that. She then said "I never told the police he picked up £15. I forgot to tell the police that he had said he had picked up £15".

After considerable pressure from Mr Martin, she said she had lied to the police. Then in a complete volte face she declared that Craig had never said to her that he had picked up £15.

When Mr McMahon re-examined the witness in relation to this statement attributed to the accused she gave her third version of this item of evidence by saying that she didn't know if Craig had said to her that he had picked up £15.

It was now apparent to me that despite the warning which had been given to her by me in relation to the power of the Court to find her in contempt for prevarication, she was quite prepared to ignore the consequences.

I formed the view that she had been prevaricating and I warned her. I advised her to consult the duty solicitor for advice over the lunch interval. Whilst she was not remanded in custody I told her to remain on the premises and have lunch here. I urged her to see Mr Hunter, solicitor, since I believed that she ought to have the opportunity of purging her contempt.

At 2 pm outwith the presence of the jury, the witness was recalled and appeared in the witness box. Mr Hunter appeared on her behalf. It was suggested by Mr Martin that I had not actually made a finding of contempt. I disagreed but, for the avoidance of doubt, found her guilty of prevarication and explained to her that it was for the reasons set out above.

At no time did the witness offer to purge her contempt and she was released on bail to appear each day in court at 10 am and on the conclusion of the trial for the purpose of being sentenced.

At the end of the trial, the witness was recalled when Mr Hunter appeared for her, and stated that he had submissions to make. Owing to the lateness of the hour I agreed that he should defer making these submissions until 27 August 2001 at 10 am.

When this case called before me today, Mr Martin on behalf of the accused submitted that I had not been entitled to find the accused guilty of prevarication following upon the evidence which she gave in the case of HMA -v- Craig Anstruther. He said nothing about the circumstances leading up to the witness being found guilty of prevarication and from his silence I take it, since he was present at the trial himself and heard my reasons for reaching that judgement stated at the time, that there was no objection to my finding.

In his submission I was not entitled to reach a finding of prevarication against the witness, Cheryl Little, since the witness had been deprived of her right to a fair hearing of her case under article 6 of the European Convention on Human Rights. According to him she had been deprived of an "independent and impartial tribunal". He accused me of acting as prosecutor and judge in respect of the witness. I was a judge and prosecutor in my own cause.

In his submission the court procedure had to be balanced with an obligation to act so as to comply with the Convention Rights afforded to the witness. I had failed to be independent and impartial. He referred to the case of Pullar v UK 1996 22 ECHR 391.

In the present case I had failed to act in such a way as to allow an impartial observer to conclude that justice had been seen to be done.

He referred to Bradford v McLeod 1985 SCCR at 379. He referred to the oft quoted passage of Eve J. which is repeated page 382 there to the effect that "Each member of the council in adjudicating on a complaint thereunder is performing a judicial duty and he must bring to the discharge of that duty an unbiassed 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 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."

According to Mr Martin it was not a question of whether I had been impartial but whether an observer in my court might conclude from the proceedings that I could not be impartial. He referred to the case of Hoekstra v HM Advocate (No 2) 2000 SCCR 367.

He referred to the oft repeated dictum at page 380 that "Where a judge is performing a judicial duty he must not only bring to the discharge of that duty an unbiased and impartial mind. He must be seen to be impartial."

He submitted that in order to conform with the spirit of the of the Convention the witness should have been prosecuted by the Procurator Fiscal in respect of her admission of perjury when she could have received legal advice and could have led witnesses in her defence. In such a prosecution she could have taken advantage of the full rights implicit in article 6 of the Convention. In other words Mr Martin's view was that people who prevaricate will require to be prosecuted and not simply dealt with in a summary way by the trial judge. He accepted that what I had done was simply to follow a standard practice which had been followed in the courts for years but nonetheless the time had come to look anew at the fairness and justice of such a practice in light of article 6 of the Convention.

I should add that Mr Martin drew my attention to a decision by Sheriff Simpson at Airdrie Sheriff Court dated 11 April 2001. He did not find it helpful. I have had an opportunity of reading it.

Where I differ from Sheriff Simpson is that I do not agree that as he says in paragraph 17, prima facia the common law power of a sheriff to punish persons in contempt of his court contravenes the affected person's right to a fair trial before an independent and impartial tribunal. I do not consider that there is any question of the presumption of innocence being perceived as being illusory if one considers the actual function which is being carried out by the judge when dealing with a question of prevarication.

Contrary to what Mr Martin has affirmed, in my opinion the sheriff is not acting as prosecutor and judge at the same time in holding that a witness has prevaricated. He is simply assessing the evidence of the witness which is already before the court. He is not prosecuting the witness. He is assessing the credibility and reliability of the witness from her demeanour and the mutual inconsistencies present in the body of her evidence. He reaches his decision in relation to the way in which the evidence has been given which is what he does for all witnesses in all trials. This is the normal function of the sheriff.

The judge does not present the evidence to the court. He simply assesses it and this is the key to the problem of the alleged duality of role of the judge. This is the effective answer to the challenge that he is not impartial. He is carrying out a judicial role only. All he has done is to condemn the evidence as being so unsatisfactory as to be worthy of contempt. Contemptuous evidence has to be punished and all that he is doing is selecting the evidence which is clearly in contempt either because of the material contained in it or based on the demeanour and attitude of the witness.

It is the trial judge alone who is in the best position to assess the evidence as it is he only who can savour the flavour of the evidence given by the witness. The witness is entitled to and indeed has been afforded the services of a solicitor and can profit from his advice. The reason one gives the witness an opportunity of seeking advice is so that she can be advised whether to purge her contempt by telling the truth. If that advice is rejected then of course the solicitor has a secondary function which is to present any factors in mitigation when the judge comes to impose a penalty upon the witness for her contemptuous evidence. He can explain why the witness gave her evidence in the unsatisfactory manner referred to and can draw the attention of the judge to any factors in mitigation such as her close attachment to the accused or her fear of reprisals in the event of her making a clean breast of her evidence. For these reasons I consider that I was justified in making my finding of prevarication in this case. Accordingly I repel Mr Martin's submissions.