Scottish Sheriff Court Decisions

Act: Mr Steven Inglis, solicitor, Aberdeen City Council

Alt: Party

Aberdeen: 20^th January 2004

The sheriff principal, having resumed consideration of the cause, answers the question of law in the negative; therefore allows the appeal and recalls the order of the sheriff dated 4^th September 2003; finds no expenses due to or by either of the parties in respect of the appeal; quoad ultra remits the cause to the sheriff to proceed as accords.

Note

1. In this case the pursuers and respondents are the landlords and the defender and appellant the tenant of a house in Aberdeen. The pursuers seek an order for recovery of possession of the house in terms of 16(2) of the Housing (Scotland) Act 2001. The basis of the action, in short, is that the defender, a person residing or lodging in the house with him and persons visiting the house have acted in an anti-social manner, and in paragraph 6 of the statement of claim no less than forty four episodes of anti-social conduct are said to have occurred between 31^st March 2000 and 27^th February 2003. In addition, in paragraph 7 it is said that the pursuers obtained an anti-social behaviour order against the defender and that he has since been convicted on two charges of breaching this order. In these circumstances it is said that the ground set out in paragraph 7 of Part 1 of Schedule 2 to the Act has been made out and that it is reasonable that an order be made for recovery of possession of the house.
2. The action was raised on 6^th March 2003, and at the first hearing on 10^th April 2003 it appears that the defender was represented by a firm of solicitors and that the upshot of the hearing was that a diet of proof was fixed for 9^th June 2003. On 24^th April 2003 answers to the pursuers' statement of claim were lodged by these solicitors. Significantly, paragraphs 6 and 7 of the statement of claim were admitted. But in the defender's answer 9 it was said that, if he were removed from the house, he would have no alternative accommodation available to him and would be homeless and that in the circumstances it would not be reasonable for decree of recovery of possession to be granted.
3. For some reason that is not immediately apparent from the papers in the case, the diet of proof which had been fixed for 9^th June 2003 was discharged and a fresh diet of proof fixed for
   21^st July 2003. This may have had something to do with an incidental application which had been lodged on behalf of the pursuers on 26^th May 2003 and which appears to have been granted on 29^th May 2003. The effect of this application was to insert details in the statement of claim of three more episodes of anti-social conduct and details also of further occasions upon which the defender had been convicted of breaching the anti-social behaviour order.
4. On 7^th July 2003 a letter was received at the sheriff clerk's office from the solicitors who had been instructed by the defender intimating that they were withdrawing from acting on his behalf.
5. At the diet of proof on 21^st July 2003 Sheriff Bowman was initially presiding in court. The defender was not present because, as I understand the position, he was then serving a sentence of imprisonment. His sister Mrs Duijverman appeared on his behalf. While it is not clear exactly what she said, it was accepted at the hearing of the appeal that the sheriff said something to the effect that she could not deal with the case because of her previous involvement with the defender. She then withdrew from the court and was replaced shortly afterwards by Sheriff Harris. Mrs Duijverman evidently persuaded him, in the face of opposition from the pursuers' solicitor, to discharge the diet of proof and the case was continued until 4^th September 2003 for the defender to instruct another solicitor or to appear himself. It appears to be clear that the hearing on 4^th September 2003 was never intended to be anything more than a procedural one to establish what, if anything, the defender was going to do about his representation in the case. Thus at the hearing of the appeal the pursuers' solicitor stated that, while witnesses had been cited for the pursuers and were in attendance on both 9^th June and 21^st July 2003, no witnesses had been cited to attend on the pursuers' behalf on 4^th September 2003.
6. On 4^th September 2003 Sheriff Bowman was once again presiding in court when the case was called. On this occasion she does not appear to have thought it necessary to withdraw as she had on 21^st July 2003. What happened then is recorded by her in the stated case as follows:

On that date the (defender) was not present but was represented by his sister
Mrs Duijverman. She informed the court that her brother had been unable to obtain the services of a solicitor. On behalf of her brother she did submit that he was disabled. The (pursuers were) opposed to any further adjournment in light of the number of complaints and incidents involved in this case. In all the circumstances I considered that the (pursuers) had grounds on which they could recover possession of the subjects and it was now reasonable to make the order.

7. On 17^th September 2003 a note of appeal was lodged on behalf of the defender. It was signed by Mrs Duijverman. It purported to specify a variety of points of law upon which the appeal was to proceed. It was evidently not prepared by a qualified solicitor and the sheriff can be readily forgiven for having not apparently identified what all these points of law were. But it is only right to observe that on the penultimate page of the note of appeal there appeared the following passage:

On 21^st July 2003 this case was heard. Sheriff Bowman had to withdraw. Could not hear my motion. Sheriff Harris then took over. Explained that continuation I was seeking. And the next court hearing 4^th September 2003 procedure. I asked two solicitors what procedure meant. Did that mean eviction given on that date. Both said no. On 4^th September Sheriff Bowman in court. I surprised. I did not get the opportunity of stating Mr Robb's case. Mr Robb not in court to defend himself.

8. In response to the note of appeal Sheriff Bowman duly prepared and signed a stated case. She found in fact, inter alia, that the defender had admitted paragraph 6 of the statement of claim which at that time had specified forty four examples of anti-social behaviour, that on
   16^th January 2002 at Aberdeen Sheriff Court the pursuers had obtained an anti-social behaviour order against the defender in terms of section 19 of the Crime and Disorder Act 1998 and that on 14^th November 2002 the defender was convicted on two charges of breaching the order, and finally that he was currently serving a sentence of imprisonment for breach of the order. She found in fact and in law inter alia that, the defender having been convicted of breach of an anti-social behaviour order and having admitted forty four examples of anti-social behaviour, the pursuers had grounds for recovery of the house under paragraph 7 of Part 1 of Schedule 2 to the Act and that, in light of the extent of the anti-social behaviour of the defender, it was reasonable to make an order in favour of the pursuers for recovery of possession of the house. In the note which she appended to her findings, the sheriff recorded that she had found the defender guilty after a trial in which he had been accused of a further breach of the anti-social behaviour order and had sentenced him to a period of imprisonment. She further stated that he was still serving this sentence when the case called before her on 4^th September 2003. She posed one question of law namely: "1. Was I entitled to grant decree for recovery of possession of the subjects?" (In passing it should perhaps be observed that the sheriff did not in fact get to the point of granting final decree since the expenses still had to be dealt with - see rules 23.2 and 23.3 of the Summary Cause Rules 2002).
9. The hearing of the appeal was originally fixed for 17^th December 2003. On that date the defender appeared on his own behalf and the pursuers were represented by their solicitor. The defender persuaded me, in the face of opposition from the pursuers' solicitor, to adjourn the hearing of the appeal until 9^th January 2004. I agreed to do this since it appeared at that stage that the defender, whose application for legal aid to pursue the appeal had previously been refused, had made some private arrangement to secure the services of a solicitor to represent him in the appeal. For obvious reasons, I thought that it would be of assistance to the court (and also, for that matter, the pursuers' solicitor) if a solicitor were to appear on behalf of the defender to conduct his appeal. By that stage I had had an opportunity to consider the papers in the case in some detail, and I had noted two points of competency which troubled me. These were (1) whether, given the procedural history of the case and the fact that the hearing on
   4^th September 2003 was apparently meant to be a procedural hearing only, it was competent for Sheriff Bowman to have granted decree for recovery of possession that day, and (2) whether in any event, in granting decree, Sheriff Bowman had acted in breach of article 6(1) of the European Convention on Human Rights. At the hearing on 17^th December 2003 I indicated to the parties that I would wish to be addressed on 9^th January 2004 on these two questions in particular, and I subsequently issued a note to the parties to this effect explaining in more detail what was in my mind.
10. In the event, the defender again represented himself on 9^th January 2004. He was accompanied by his sister Mrs Duijverman and I allowed her to sit beside him and assist him informally and to address the court on a number of points. The pursuers were represented as before by their solicitor. I was addressed on various matters to do with the merits of the appeal and also on the two questions of competency which I had myself previously raised. For present purposes I think that I need deal only with the second of these, namely whether, in granting decree, the sheriff had acted in breach of article 6(1) of the European Convention on Human Rights. In the note which I had previously issued I had stated that I had here in mind the fact that on 4th September 2003 the defender had been serving a sentence of imprisonment for breach of an anti-social behaviour order which had been imposed upon him by the sheriff following a trial at the conclusion of which she had found him guilty. In this situation, and given that the sheriff had had to decide whether or not it was reasonable to make the order for recovery of possession, it seemed to me to be at least arguable that she was not independent and impartial within the meaning of article 6(1).
11. The defender was understandably unable to offer much assistance on this point. But he did submit that the sheriff had not been impartial, and he referred to the fact that on 21^st July 2003 she had withdrawn from the case having sentenced him on previous occasions.
12. Referring to article 6(1) of the European Convention, the pursuers' solicitor submitted that the impartiality of the sheriff in the present case had to be judged from both a subjective and an objective point of view. Judged subjectively, there needed to be no concern about the sheriff's impartiality. As for the objective test, the law on this matter had recently been considered in the case of Davidson, Petitioner 2002 SLT 1231. The test was whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. If the court was to hold that there was a real possibility of bias, then that possibility must have been reasonable rather than fanciful - see the Lord Justice Clerk (Gill) at page 1235H/J. In the present case the sheriff had already been aware of the defender's recent convictions for breaching the anti-social behaviour order and the sentence of imprisonment that had been imposed upon him. Even if she had not been aware of these matters, he or Mrs Duijverman would have mentioned them to her. Taking all the factors into account, a fair minded and informed observer would not have concluded from the fact that the sheriff had previously sentenced the defender to a period of imprisonment after trial for breaches of the anti-social behaviour order that there was a real possibility of bias on her part. Such an observer would appreciate that the criminal and civil proceedings were quite separate, and at least in a small court, it was to be expected that the same person would appear on a regular basis before the same sheriff. A fair minded observer, so it was said, would understand that this could happen in the normal course of events and would take into account the practicalities of the situation.
13. There is a helpful discussion of the law on this matter in paragraphs [13] to [18] of the judgement of Lord Kirkwood in Davidson where his Lordship stated:

[13] The proper approach of the court in a case of this nature is to ascertain all the circumstances on the basis of which the complaint about a judge's participation has been made and, once these facts have been ascertained, to apply the requisite test. In the present case there is no dispute about the factual circumstances, nor is there any dispute as to the terms of the test which falls to be applied. The test 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 (Porter v Magill 2002 2WLR 37, per Lord Hope of Craighead at para. 103). Further, the fears which have been expressed by the petitioner must be objectively justified (Porter v Magill, per Lord Hope at para. 104).

[14] Article 6(1) of the European Convention of Human Rights provides inter alia as follows: "(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law".

[15] It is, of course, of the utmost importance that judges should be independent and impartial in order to preserve public confidence in the administration of justice. However, as Lord Hope of Craighead observed in Millar v Dickson 2002 SC(PC) 30 at para. 63: "(T)he appearance of independence and impartiality is just as important as the question whether these qualities exist in fact. Justice must not only be done, it must be seen to be done. The function of the Convention right is not only to secure that the tribunal is free from any actual personal bias or prejudice. It requires this matter to be viewed objectively. The aim is to exclude any legitimate doubt as to the tribunal's independence and impartiality". Lord Hope went on to observe (at para. 65) as follows: "It is no answer for the judge to say that he is in fact impartial, that he abided by his judicial oath and that there was a fair trial. The administration of justice must be preserved from any suspicion that a judge ...... is not impartial. If there are grounds which would be sufficient to create in the mind of a reasonable man a doubt about the judge's impartiality, the inevitable result is that the judge is disqualified from taking any further part in the case. No further investigation is necessary, and any decisions he may have made cannot stand".

[16] If in any case there is real ground for doubt, that doubt should be resolved in favour of recusal (Locabil (UK) Limited v Bayfield Properties Limited 2000 QB 451 at para. 25).

[17] These observations accord with the Strasbourg jurisprudence relating to the test which should be applied when the court is considering whether the circumstances give rise to a reasonable apprehension of bias (Piersack v Belgium 1982 5 EHRR 169; Hauschildt v Denmark 1989 12 EHRR 266; Procola v Luxembourg 1995 22 EHRR 193 and McGonnell v United Kingdom 2000 30 EHRR 289).

[18] In Hauschildt v Denmark, at para. 48, the court made the following observations: "Under the objective test, it must be determined whether, quite apart from the judge's personal conduct, there are ascertainable facts which may raise doubts as to his impartiality. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public ........ Accordingly, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw".

14. Applying these principles to the present case, I am of the opinion that a fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the sheriff had been biased against the defender when she presided at the hearing of this case on 4^th September 2003. I do not think that the fact that she had previous knowledge of his circumstances, and in particular had presided at his trial for breach of an anti-social behaviour order and had thereafter sentenced him to a period of imprisonment which he was still serving, would necessarily have created in the mind of a reasonable man a doubt about the sheriff's impartiality on either 21^st July or 4 September 2003. Thus I am by no means persuaded that there was in fact any need for the sheriff to have withdrawn from the case on 21^st July 2003. But the fact of the matter is that she evidently felt obliged to do so, and moreover to do so on her own initiative rather than at the instigation of either of the parties. A fair minded and informed observer would I think quite legitimately ask why, if the sheriff was unable to preside at the hearing on 21^st July 2003, she was nonetheless able to do so on 4^th September 2003. Here it should be noted that the principal issues which the court had to determine on both dates, namely whether the ground specified in paragraph 7 of Part 1 of Schedule 2 to the Act had been established and whether it was reasonable to make an order for recovery of possession of the defender's house, remained the same. So the fair minded and informed observer would I think then ask in what other way the hearing on 4^th September 2003 would be likely to have differed from that on 21^st July 2003. One obvious answer would be that the earlier of these hearings had originally been fixed as a diet of proof whereas the later hearing had been fixed merely as a procedural hearing. But it was not as if the sheriff was going to be required to hear evidence from the defender at the earlier hearing since he was not in court that day, being detained in prison at the time. Nor of course was there ever any possibility that the sheriff would hear evidence from the defender at the hearing on 4^th September 2003 so that, from a practical point of view, it does not appear to me that it was likely that there would be a difference in the procedure to be followed at the later hearing as compared with that at the earlier hearing which might have had a bearing on the issue of the sheriff's impartiality .
15. A fair minded and informed observer would no doubt be interested to know why the sheriff herself had thought it right to withdraw on 21^st July 2003 but not on 4^th September 2003. There may in fact be a ready answer to this, but it is not to be found in the stated case (and I intend no criticism of the sheriff in saying this). Left in ignorance as to what was in the sheriff's mind I think that the fair minded and informed observer would inevitably conclude that there had to be a possibility that whatever consideration had persuaded the sheriff that she should withdraw on the first occasion (and it could well have been a consciousness on her part of possible bias against the defender) remained no less a consideration on the occasion of the later hearing on 4^th September 2003, and hence that there was a real possibility of bias on the part of the sheriff on that date. Accordingly, in my respectful opinion, the sheriff's having presided at the hearing on this last date constituted a violation of article 6(1) of the European Convention - and this of course was unlawful in light of section 6 of the Human Rights Act 1998.
16. I was not addressed on what should be done in the event that I was persuaded that there had been a breach of article 6(1). I certainly do not think that it would be right to allow the appeal and dismiss the action altogether. In my view the correct course would be to recall the order of the sheriff dated 4^th September 2003 and remit the cause to be dealt with by another sheriff (which is bound in any event to happen since Sheriff Bowman has recently moved from Aberdeen to Glasgow). This is what I have done, and in this situation I do not think that it would be appropriate that I should express a concluded opinion on any of the other issues which were canvassed during the hearing of the appeal. I will only say that I think that, in order to obviate any argument along the lines of the first point of competency raised by myself, and so long as the defender maintains his defence to the action, it would be prudent in the first instance to fix a further diet of proof, and thereafter to take the matter from there.
17. It was accepted that no expenses should be found due to or by either of the parties in respect of the appeal.