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You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Robbie The Pict v. Miller Buidheann Ltd, [2005] ScotSC 28 (13 May 2005)
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Cite as: [2005] ScotSC 28
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Robbie The Pict v. Miller Buidheann Ltd, [2005] ScotSC 28 (13 May 2005)
SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT PORTREE
A93/04
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JUDGEMENT of SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC |
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in the cause |
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ROBBIE THE PICT |
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Pursuer |
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against |
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MILLER BUIDHEANN LIMITED |
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Defenders |
Act: Party
Alt: Mr D McK Burd, solicitor, instructed by Shepherd & Wedderburn, Edinburgh
Portree: 13th May 2005
The sheriff principal, having resumed consideration of the cause, remits the same to a sheriff of this sheriffdom who is not a member of the Speculative Society to hear and determine the motion for the pursuer that Sheriff Pollock should decline jurisdiction in the cause.
Note
[1] In this case the pursuer originally presented a small claim summons against the defenders to this court on 14 October 2004. At that stage he sought decree for payment to him by the defenders of the sum of £49.58 with interest and expenses. In short, he averred that on thirty seven occasions between 1 January and 1 October 2004 a toll had been demanded from him to cross the Skye Bridge on the A87 public road. On each occasion a voucher from a car discount book of tickets (costing £26.80 for twenty tickets) had been handed over. Each voucher was therefore said to be worth £1.34, which multiplied by thirty seven yielded the total claimed. The pursuer averred that on each occasion the person demanding the toll from him had been an employee of the defenders and had been unable to produce any indication of evidence of his or the defenders' authority to charge tolls at that locus. Although he did not say so explicitly, it is evident that he maintained that in these circumstances he was entitled to repayment of the sum claimed, namely £49.58.
[2] The defenders were duly cited to answer the summons, and on 25 November 2004 an incidental application was lodged on their behalf in terms of which they craved the court to direct that the cause should be treated as an ordinary cause in terms of section 37(2B) of the Sheriff Courts (Scotland) Act 1971. So far as material, this section provides that in the case of any small claim the sheriff at any stage may, if he is of the opinion that a difficult question of law or a question of fact of exceptional complexity is involved, of his own accord or on the motion of any party to the small claim direct that it shall be treated as a summary cause (not being a small claim) or ordinary cause, and in that case the small claim shall be treated for all purposes (including appeal) as a summary cause (not being a small claim) or ordinary cause as the case may be.
[3] In accordance with rule 9.1(2) of the Small Claim Rules 2002, the claim duly called in court for a hearing on 6 December 2004. On that date Sheriff Pollock was presiding. He subsequently recorded what happened then in a careful note which he prepared dated 14 March 2005. He wrote:
By way of preliminary, the pursuer, appearing as a party litigant, enquired whether I was minded to make any declaration of a potential conflict of interest, given my membership of the Speculative Society, and given that certain other persons connected with the A87 road-tolling project were also members of the Society.
Having reminded myself of the opinion of the court delivered by the Lord Justice Clerk in Robbie the Pict, Petitioner (No. 2), 2003 SCCR 299 I intimated that I was not minded to make any such declaration. Thereafter the pursuer confirmed, in answer to a specific query from the bench, that he was not making any formal motion himself proponing a declinature of jurisdiction on my part.
There then followed a consideration of the defenders' incidental application to have the cause treated as an ordinary cause in terms of sections 37(2B) of the Sheriff Courts (Scotland) Act 1971. Having heard (the defenders' solicitor), and the pursuer in reply, I formed the opinion that difficult questions of law and a question of fact of exceptional complexity was involved, and granted the defenders' application.
[4] In the result the sheriff pronounced an interlocutor in the following terms:
The Sheriff, having chosen not to make any declaration of a potential conflict of interest and in the absence of any formal motion by the Pursuer proponing a declinature of jurisdiction on his part, and having heard the Defender's procurator and the Pursuer in person in respect of the Defender's Incidental Application seeking a direction from the court that the cause be treated as an Ordinary Cause in terms of section 37(2B) of the Sheriff Courts (Scotland) Act 1971, and being of the opinion that difficult questions of law and a question of fact of exceptional complexity are involved, Grants same; and further Directs the Pursuer in terms thereof to lodge an Initial Writ and intimate it to the Defenders within 14 days of today's date; Directs the Defenders to lodge defences within 28 days of today's date and Fixes 28th February 2005 at 11.00 am within the Sheriff Court House, Portree as the date, time and place for the Options Hearing.
[5] In obedience to this interlocutor the pursuer lodged an initial writ at this court on 14 December 2004. In this he craved the court to grant decree for payment to him by the defenders of the sum of £9.38 with interest and expenses. The averments in support of his claim were to the same effect as in the original small claim summons except that he now maintained that a toll had been demanded from him to cross the Skye Bridge on seven occasions between 12 October and 21 November 2004. Again on each occasion he had handed over a voucher from a car discount book of tickets costing £26.80 for twenty tickets. He averred that each voucher was therefore worth £1.34 which, multiplied by seven, yielded the total sum claimed.
[6] At the options hearing on 28 February 2005 Sheriff Pollock was again presiding. At the outset of the hearing the pursuer lodged a document headed "Point of Law under Section 6 of the Human Rights Act 1998". Strangely this document had two paragraphs numbered 7. For present purposes it is necessary to notice only the first of these and also paragraphs 1, 5, 6, 8 and 9. These read as follows:
1. The Pursuer/Victim has intimated to the Court an objective potential for conflict of interest, referred to in the interlocutor of 6 December 2004 but not acted upon, created by Your Lordship's undeclared membership of the Unionist sodality calling itself "The Speculative Society of Edinburgh". Membership of the Society is also enjoyed by Sir Iain Noble first chairman of the Skye Bridge Company, Lord James Douglas-Hamilton the Transport Minister responsible for providing a lawful toll regime, Sir Angus Grossart of merchant bankers Noble Grossart who received public payment to give protective financial advice on the scheme and Niall Campbell, a senior civil servant connected with the political securing of the A87 road-tolling project.
5. Since the last hearing on 6 December 2004 the Pursuer has learned that your Lordship was for some 7 years the Conservative and Unionist MP for Moray until ousted in 1987. Your Lordship was therefore not only liked to Lord James Douglas-Hamilton secretly but publicly and professionally as a fellow Tory MP during the Thatcher era.
6. Your Lordship failed to declare this potential for partiality on 6 December 2004 even although Lord James was then named as complicit in the setting up of the toll regime.
7. Any appeal from proceedings in this action would be steered towards the Sheriff Principal Sir Stephen Young who is but another member of the Speculative Society and who has already acted to defend the toll regime despite the terms of a Royal Charter.
8. Under the guidance of the British standard of compliance with the European Convention of Human Rights and Fundamental Freedoms, as set out by Lord Hope of Craighead in the case of Pinochet in 1999 (1 All ER), the pursuer respectfully requests that your Lordship now declines any further jurisdiction other than a) to accept that the decision in favour of the Defender to have the matter elevated to Ordinary Cause must be properly set aside and, b) to order that the Clerk of the Court refunds the sum of £43 to the Pursuer.
9. In the event that your Lordship fails to recognise the public perception of potential conflict of interest, a formal motion proposing declinature of jurisdiction is hereby intimated.
[7] At this point it should be recorded that both Sheriff Pollock and I are members of the Speculative Society. In addition, it is I think a matter of public knowledge that Sheriff Pollock and Lord James Douglas-Hamilton served for some years together as Conservative and Unionist Members of Parliament. Sheriff Pollock lost his seat in the General Election in 1987 and has not served as a Member of Parliament since then.
[8] What happened at the options hearing on 28 February 2005 is recorded in the sheriff's note. In short, the pursuer submitted that the sheriff's membership of the Speculative Society, together with his having formerly been a professional colleague of Lord James Douglas-Hamilton in the House of Commons, were such as to lead to a public perception of his not discharging his judicial duty "to deliver a fair hearing with equality of financial arms from an impartial tribunal". It appears that, in response to a query from the sheriff as to when Lord James Douglas-Hamilton had held office as Transport Minister, the pursuer had replied that he had done so in 1991 and 1992. The defenders' solicitor submitted that there seemed to be no good reason for membership of the Speculative Society to be seen as giving rise to any conflict of interest and it was indicated that the defenders were content for the case to proceed further before the sheriff, at any rate at that stage.
[9] The upshot of the hearing was that the sheriff pronounced an interlocutor in the following terms:
The Sheriff, having heard the Pursuer in person and the Defender's procurator in respect of the Pursuer's formal motion proponing a declinature of jurisdiction on his part on the grounds (1) that the Sheriff is a member of the Speculative Society and (2) that the Sheriff formerly had a professional association with Lord James Douglas-Hamilton by virtue of both having served as follow Conservative and Unionist Members of Parliament, Makes no ruling thereon but Remits the matter to the Sheriff Principal for review; Makes no further order meantime.
[10] In his note the sheriff explained his decision in the following terms:
So far as membership of The Speculative Society is concerned, I had already intimated, on 6th December 2004, with reference to Robbie the Pict, Petitioner (No. 2) (referred to earlier), that I was not minded to make any declaration of a potential conflict of interest myself. Having now heard the Pursuer further on the matter, I saw no reason to depart from that position.
Regarding my former professional association with Lord James Douglas-Hamilton by virtue of both of us having served as fellow Conservative and Unionist Members of Parliament, I was not persuaded that that would be of itself such an association as would lead to a public perception of my impartiality being compromised. It respectfully seemed to me that it was for the Pursuer to satisfy the court that there was some reason, arising from such a former professional association, that would lead a well-informed observer to conclude that there was a reasonable suspicion of bias on my part. Having heard the Pursuer's submissions, I was not aware of any such valid reason having been advanced. Moreover, I saw no reason why any reasonable onlooker could suspect that such a former professional association - which had, in any event, ended some years prior to Lord James' tenure of office as Transport Minister - should override the obligations of my judicial oath.
Against that background, I was not prepared to accede to the Pursuer's request that I should, of my own volition, decline jurisdiction at this stage. (In so deciding I of course remained ready to reconsider matters if the case were to proceed to a proof diet, at which stage I fully accept that other considerations might well arise.) I therefore regard it as my duty to proceed with the case, whenever it happens to call before me, at any rate to a pre-proof stage - compare Robbie the Pict, Petitioner, 2003 SCCR 99, at page 103 B-C.
The matter, of course, does not end there. Given the formal motion by the Pursuer before the court "proposing declinature of jurisdiction" on my part, I am mindful of the need for a decision on the question to be made by a judge other than myself (compare Robbie the Pict, Petitioner, 2003 SCCR 99, at page 104 D-E).
Accordingly, conform to the guidance set out in Macphail in Sheriff Court Practice, 2nd Edition, paragraph 2.129, I have recorded the grounds advanced for proponing declinature in my interlocutor of 28th February 2005, and have remitted the matter to the Sheriff Principal for review.
[11] At this point it may be convenient to comment upon the procedure whereby the sheriff remitted the matter for review by myself. He did so on the strength of the passage in paragraph 2.129 of Macphail's Sheriff Court Practice (2nd Edn) which reads: "Since a judge may not rule on a declinature proponed by or against himself, it may be that the grounds of declinature should be recorded in an interlocutor pronounced by the sheriff and reviewed by the sheriff principal, who may either sustain the declinature and remit the cause to another sheriff, or repel it and remit to the sheriff to proceed". This statement is supported by a reference to Henderson's Trustees v Dunfermline District Committee of Fife C.C. 1896 12 Sh.Ct. Rep. 58. At that time the sheriff was known as the sheriff-substitute and the sheriff principal as the sheriff. An issue arose in the case whether the sheriff-substitute at Edinburgh should decline jurisdiction having previously given advice to a relative in a similar cause. The sheriff repelled the declinator of the sheriff-substitute and remitted the case for procedure before him in ordinary course. It is not clear from the report how the matter came before the sheriff in the first place, and there is no discussion in his note as to the competency or propriety of the issue of the declinator being determined by him rather than by another sheriff-substitute. It occurs to me that at that time there may not have been a second sheriff-substitute at Edinburgh which would perhaps explain why the matter came before the sheriff. At all events it seems to me that nowadays, if a motion is made to the effect that a particular sheriff should decline jurisdiction and if that sheriff considers that he or she cannot properly deal with the matter, then arrangements should be made for the motion to be determined by another sheriff in the first instance rather than the sheriff principal.
[12] Having considered the interlocutor of the sheriff dated 28 February 2005, I appointed parties to be heard thereon on 14 April 2005. It did cross my mind that, since I was also a member of the Speculative Society, I ought ex proprio motu to decline jurisdiction and make arrangements for the Scottish Ministers to appoint someone else to act as sheriff principal to deal with the matter in terms of section 11(1A) of the Sheriff Courts (Scotland) Act 1971. In the first paragraph 7 of the document lodged by the pursuer on 28 February 2005 he had stated, correctly, that I was a member of the Speculative Society and he had also asserted that I had "already acted to defend the toll regime despite the terms of a Royal Charter". This last assertion was a reference to my decision in the case of The Procurator Fiscal, Dingwall v Robbie the Pict (Dingwall, 18 August 2004) in which I had repelled a plea to the competency and relevancy of a summary criminal complaint against the pursuer. I subsequently issued a note dated 27 August 2004 explaining my decision, and a copy of this note may be seen on the Scottish Court Service website at http://www.scotcourts.gov.uk/opinions/ROB.html. In short, the pursuer had claimed in that case that he was entitled to the benefit of the exemption from tolls which had been granted by King William the Lion in 1180 in terms of a Royal Charter in favour of the burgesses of Inverness. I had no difficulty in repelling the pursuer's plea upon the basis that it was plain that he did not qualify as a burgess of Inverness.
[13] Having considered the two opinions of the court in Robbie the Pict v HM Advocate dated respectively 10 December 2002 and 13 March 2003, I concluded that I ought not to recuse myself ex proprio motu. The pursuer was in touch with my secretary on various occasions before the hearing on 14 April 2005, and on one of these occasions she advised him (on my instruction) of my decision not to recuse myself. The defenders' principal agents were similarly advised.
[14] At the hearing on 14 April 2005 I was addressed first by the pursuer. He helpfully produced a typed version of his submissions and these have been retained as no. 12 of process. He supplemented these submissions with some additional oral submissions. In short, he advanced two lines of argument. He submitted in the first place that the remit to myself by Sheriff Pollock in terms of his interlocutor dated 28 February 2005 had been incompetent in light of the sheriff's failure (so the pursuer asserted) to disclose his membership of the Speculative Society. The pursuer referred to paragraph 2.129 of Macphail's Sheriff Court Practice (2nd Edn) and pointed out firstly that Sheriff Principal Macphail (as he then was) was also a member of the Speculative Society (which I did not know), and secondly that the second edition of his book had been published in 1998 before the coming into force in the United Kingdom of the Human Rights Act 1998. It was submitted that the effect of this was to supersede and render anachronistic what had been said in paragraph 2.129.
[15] The pursuer submitted in the second place that I should myself decline jurisdiction in the matter upon the basis that I was a member of the Speculative Society, membership of which also included Sir Iain Noble, Lord James Douglas-Hamilton, Sir Angus Grossart and Mr Niall Campbell as narrated in paragraph 1 of the document produced by the pursuer at the hearing on 28 February 2005. It was said that there was "thus a prima facie potential for partiality, and lest the objective is denied there is a list of subjective experiences, a pattern". For reasons which I confess that I did not follow, he sought to distinguish the decision of the High Court of Justiciary in Robbie the Pict v HM Advocate and to maintain that I was not bound by it. He suggested that the status of this decision was "suspect". He submitted, as I understood him, that I should recuse myself just as Lord Osborne had done in Robbie the Pict v HM Advocate, and here he referred to the opinion of the court in that case dated 10 December 2002 and article 6(1) of the European Convention on Human Rights. He produced a document headed "Speculative Society of Edinburgh: Pattern of Influences and Judgements" in which are listed details of twenty one cases in either the Court of Session or the High Court of Justiciary in all of which, broadly, the lawfulness of the Skye Bridge tolls had been an issue and in the majority of which members of the Speculative Society had been involved either as counsel or judges. He confirmed that a copy of this list (which has been retained with no. 12 of process) had been before the court in Robbie the Pict v HM Advocate. He suggested that the list featured a pattern of influence which demonstrated what happened when members of the Speculative Society were on the bench in cases involving the Skye Bridge tolls and he submitted that a reasonable and well informed observer would have grounds for suspicion. He drew attention to what he described as further developments which had served to colour the public view of the Speculative Society. These included developments in the Dunblane Primary School murders as reported in the News of the World, and the perspective of the UN-appointed Monitor for the Lockerbie trial. He stated that in an International Progress Organisation press release, their president Professor Hans Koechler had called for a fresh investigation into the bombing due to:
The revelations published in the British newspaper The Guardian (16 August 2002) and in the Sunday Herald, Glasgow (18 August 2002) about the membership of many people in the legal establishment of Scotland in the so called Speculative Society, a group of "friends" dating back to the 18th Century, that keep membership secret - similar to Masonic traditions.
According to names leaked to the media, a considerable number of the protagonists of the Lockerbie trial (from the panel of judges, and from the prosecution and defence teams) supposedly belong to this group, which raises questions in regard to fairness and impartiality of the proceedings as required under article 6 of the European Human Rights Convention.
[16] In conclusion, the pursuer submitted under reference to Locabail (UK) Limited v Bayfield Properties Limited 2000 QB 451, R v Bow Street Metropolitan Magistrate, ex parte Pinochet Ugarte (No 2) 2000 1AC 119, Starrs v Ruxton 1999 SCCR 1052 and Davidson v Scottish Ministers 2004 SCLR 991 that I should decline any further jurisdiction in the case other than:
1. (a) to accept that the decision by Sheriff Pollock in favour of the Defender to have the matter elevated to Ordinary Cause must properly be set aside and,
(b) to order that the Clerk of the Court refunds the sum of £43 to the pursuer, or
2. to refer the question of the potential for perceived compromise to the Court of Session where, in line with the guidance from the Lord Justice Clerk on this topic in (Robbie the Pict v HM Advocate 2003 J C 78), it might be considered by a panel of judges without the presence of a Member of the Speculative Society;
[17] In response, the defenders' solicitor submitted in short under reference to Robbie the Pict v HM Advocate that neither Sheriff Pollock nor I should decline jurisdiction and that I should remit the cause to the sheriff to proceed as accords.
[18] In Robbie the Pict v HM Advocate the pursuer (who was the petitioner in that case) had appealed against his conviction at Dingwall Sheriff Court of a contravention of section 38(1) of the New Roads and Street Works Act 1991 for failing to pay tolls on the Skye Bridge. He appealed to the High Court of Justiciary by stated case, and his appeal was refused on 16 December 1999. An appeal by others convicted on a different occasion of similar charges was likewise refused on 13 July 2001 by an appeal court which consisted of Lords Kirkwood, Penrose and Osborne. The pursuer thereafter lodged a petition to the nobile officium of the High Court of Justiciary craving the court to set aside the decision dated 16 December 1999. This petition was dismissed as incompetent in terms of the decision of the court dated 21 December 2001. The pursuer then lodged a further petition to the nobile officium seeking to have the decision dated 21 December 2001 set aside. In due course this second petition was heard by a court comprising the Lord Justice Clerk (Gill), Lord Kirkwood and Lord Osborne.
[19] The pursuer took three preliminary objections to the composition of this court. For present purposes it is necessary to notice only the second and third. The second was that Lord Kirkwood could not properly take part in the proceedings since he had presided over the court which had refused the appeals on 13 July 2001. It was said that, having formed an adverse view on those appeals, he could not be seen to approach the decision on the petition then before the court in an impartial and objective spirit.
[20] The third objection related to Lord Osborne. It was submitted that he could not properly take part in the proceedings since he was a member of the Speculative Society, and it was said that other members of the Society included Sir Iain Noble, Lord James Douglas-Hamilton (who was said to be the Minister with responsibility for the construction and financing of the Skye Bridge) and Lord Justice General Cullen who had presided over the court which had issued the decision dated 21 December 2001 which it was then thought to have set aside.
[21] In the opinion of the court delivered on 10 December 2002 it was said in paragraph [16]:
A judge who considers that there is a sound objection to his participation in a case has a duty to recuse himself at once. If he is in doubt, he should disclose his difficulty to the parties. But if he considers that there is no sound objection to his participation, it is his plain duty to proceed with the case (Locabail (UK) Limited v Bayfield Properties Limited).
[22] The court went on to consider the first objection which had been taken by the pursuer which was to the effect that all three judges had been appointed by the Lord Advocate. At paragraph [18] it was said:
In any event, the submission for the petitioner overlooks the fact that the Lord Advocate appears in litigations only in a representative capacity. In our opinion, even if any of us had been appointed by the present Lord Advocate or any of his predecessors, no fair-minded and informed observer, having considered the facts, could have concluded that there was a real possibility of bias on the part of the court (Porter v Magill 2002 2WLR 37 and Millar v Dickson 2002 SC (PC) 30). We therefore reject this submission.
[23] The court then turned its attention to the objection which had been taken to Lord Kirkwood. At paragraph [21] it was said:
In our opinion, this objection is worthless and it is our duty to repel it ...... In (the decision dated 13 July 2001) the appeals raised a pure question of law concerning the 1991 Act and the 1992 Order. That question was unrelated to the issue in this petition. Applying the test to which we have referred in our discussion of the previous objection, we consider that it is fanciful to suggest that Lord Kirkwood could not approach the issue in this petition with an open mind. The objection was unsound when it was advanced at the previous hearing and was rightly repelled. It remains unsound. Lord Kirkwood's judicial oath is a conclusive answer to it.
[24] The court then turned its attention to the objection which had been taken against Lord Osborne. It was pointed out at paragraph [22] that the petitioner had asked the court to decide that membership of the Speculative Society was per se a ground of disqualification in the case, and at paragraphs [23] and [24] it was said:
This objection is materially distinguishable from that made against Lord Kirkwood. Whereas the objection against Lord Kirkwood can be ruled on as a straightforward matter of law, this objection involves an assessment of the impact, if any, of membership of a private society on the integrity of the judicial process. It involves contentious questions of fact, none of which are within judicial knowledge, and the making of a judgement on the significance of such facts as are established.
In our opinion, the objective appearance of impartiality that is required by both Scots law and the Convention necessitates that a judge who is a member of the Society should not take part in a decision on the question. Lord Osborne is in that position and therefore recuses himself. Without reaching any conclusion on the factual allegations of the petitioner, or on the proposition that membership of the Speculative Society is a ground of disqualification in this case, we conclude that the hearing on this objection should proceed before a bench of judges who are not members of the Society.
[25] The case was duly continued to a reconstituted bench which comprised the Lord Justice Clerk (Gill), Lord Kirkwood and Lord Wheatley. The opinion of this court was delivered on 13 March 2003. At paragraph [12] it was said:
We therefore turn to the merits of the objection on which this hearing was appointed. The onus rests on the petitioner to substantiate his objection. He must satisfy us that if a judge who is a member of the Society were to take part in the case, there is some reason, arising from his membership of the Society, that would leave a well-informed observer to conclude that there was a reasonable suspicion of bias on his part. The petitioner has led no evidence. He has merely given us some information about the history of the Society taken from published sources. The Crown has lodged the Rules of the Society and an affidavit by its current librarian in which he describes its constitution and activities.
[26] The submissions for the petitioner were then summarised. These included a reference to a short passage in a chapter by Sir Derrick Dunlop in The History of the Speculative Society (1968) in which he referred to the arrangement by which the Society occupies premises within the University of Edinburgh. In short, it was hinted in this passage that the University would have little chance of removing the Society from their premises in view of the number of members of the Society among the judges of the Court of Session.
[27] At paragraph [18] it was recorded that the advocate depute had submitted that an informed, fair-minded and reasonable observer would conclude that there was no real possibility of bias on the part of a judge who was a member of the Society. Then at paragraphs [19] to [26] the court set out its conclusions on the facts and its decision in the following terms:
Conclusions on the facts
[19] We base our findings in this case on the affidavit and the Rules of the Society. These represent authoritative source material on the objects and activities of the Society. The petitioner does not challenge the factual accuracy of the affidavit in any respect.
[20] The Society is a Society for young men. According to the affidavit, the Society can have no more than 30 ordinary members at any time. Membership is gained by invitation and is subject to voting by secret ballot. The rules provide for a procedure of black-balling. When a member joins, he joins as an ordinary member for a period of three years. There is nothing in the rules to prohibit female membership, but there are no female members and there have never been any.
[21] During the period of ordinary membership the member must attend meetings of the Society which are held weekly during the winter months; he must deliver three essays, typically of about 15 minutes duration, and he must open debates.
[22] On completion of ordinary membership, the member may apply for extraordinary membership. Extraordinary members have no duties but may attend meetings if they choose. Occasionally honorary members are appointed.
[23] The meetings of the Society are held in private and are restricted to members. Dinners are held from time to time, to which guests are sometimes invited. Few extraordinary members attend meetings.
[24] The proceedings at meetings begin with the reading of an essay which is then commented upon. After an interval for drinks, there is a debate on a motion previously intimated. The motion is then voted on. Miscellaneous matters are then discussed and the meeting concludes with the reading of an item of interest from the minutes of 100 or 200 years ago.
Decision
[25] In our opinion, the petitioner has failed to substantiate his objection. At the previous hearing on the point, he submitted that a reasonable suspicion of bias arose from the fact that the chairman of the Skye Bridge Company and the former Scottish Office Minister who promoted the Skye Bridge legislation were members of the Society. The petitioner has not renewed that submission. His central argument now is that the nature of the Society itself compromises the integrity of its judicial members.
[26] In our opinion, the origins and history of the Society, which have not been discussed in any depth, have no great significance in the decision on this objection. The objection falls to be judged by the present state of the Society, its activities and its ethos. On the information before us, we conclude that the Society is neither secret nor sinister and that it simply makes its own refined contribution to the public stock of harmless pleasure. It appears to be careful in its choice of members, but many societies are. Those elected are no doubt happy to be members. Others will be happy not to be. Live and let live is a useful principle in such matters. Notwithstanding the ill-advised remarks of Sir Derrick Dunlop, we can see no reason why any reasonable onlooker could suspect that the loyalties and friendships that typify any society of this kind should in this case override the obligations of the judicial oath.
[28] I deal first with the ground of objection to myself which is based upon my having repelled the pursuer's plea to the competency and relevancy of the complaint against him at Dingwall Sheriff Court. I consider that there is no substance in this objection. The issues which I have to decide in this case are, firstly, whether I should myself decline jurisdiction and, secondly, whether Sheriff Pollock should decline jurisdiction. Needless to say, these issues are quite different from the issues that arose in the Dingwall case and there is no hint in the pleadings in the present case that the issues in that earlier case will arise in this case. In these circumstances I consider that the objection on this ground is unsound and, had it not been for my decision on the other objection to myself which I am about to explain, I should have repelled this first objection without further ado just as the court in Robbie the Pict v HM Advocate repelled the objection which the pursuer had taken against Lord Kirkwood.
[29] I turn now to the objection that I am a member of the Speculative Society. As in Robbie the Pict v HM Advocate, the pursuer has not sought to lead any evidence to support his objection on this ground. He did not seek to expand upon the reasons why he had suggested that the decision in that case was "suspect". Nor did he otherwise challenge the decision or the factual conclusions that underpinned it as unsound. It will be apparent from what I have already said that more or less all the material in relation to the Speculative Society which he has put before the court in these proceedings was before the court in Robbie the Pict v HM Advocate as well. So far as I can judge, the only new matters are the references to Sir Angus Grossart and Mr Niall Campbell and perhaps also the alleged developments in the Dunblane Primary School murders as reported in the News of the World and the comments of Professor Hans Koechler which I have quoted in paragraph [15] above. In my opinion, had the ground of objection against myself been simply that I was a member of the Speculative Society, none of these matters would have added anything of significance to the essential point of this objection. The merits or otherwise of this ground of objection were fully investigated and considered in Robbie the Pict v HM Advocate, and in the result the court concluded at paragraph [26] of the decision dated 13 March 2003 that "we can see no reason why any reasonable onlooker could suspect that the loyalties and friendships that typify any society of this kind should in this case override the obligations of the judicial oath". Likewise, I should have considered that in the present case the pursuer had said nothing to vouch satisfactorily his submission that I ought to decline jurisdiction on the ground of my membership of the Speculative Society. Having regard to what was said by the court in Robbie the Pict v HM Advocate I should not have thought that there was any need for a decision on this aspect of the matter to be made by a judge other than myself. On the contrary, and to borrow the language of the court in paragraph [16] of the decision dated 10 December 2002, I should have considered that it was my plain duty to proceed with this case.
[29] But, having had an opportunity to reflect upon the position, I think that there may be an important distinction to be made between this case and Robbie the Pict v H M Advocate. In paragraph [25] of the later decision it was pointed out that the pursuer at the previous hearing had submitted that a reasonable suspicion of bias arose from the fact that the chairman of the Skye Bridge Company and the former Scottish Office Minister who promoted the Skye Bridge legislation were members of the Speculative Society. It was then said: "The petitioner has not renewed that submission. His central argument now is that the nature of the Society itself compromises the integrity of its judicial members", and it was this argument that the court proceeded to address. By contrast, if I understand correctly what the pursuer is now saying (and I have to say that the point is not entirely clear), his objection to myself is not merely that I am a member of the Society, but that Sir Iain Noble, Lord James Douglas-Hamilton, Sir Angus Grossart and Mr Niall Campbell (all of whom were supposedly involved in one way or another in the construction of the Skye Bridge) are also members so that a reasonable suspicion of bias arises. In other words the pursuer is now making the submission that he did not at the end of the day advance in Robbie the Pict v H M Advocate and that was therefore not considered by the court in that case. If I am correct in this, then I do not think that I can properly repel the objection to myself based on my membership of the Speculative Society on the basis of the decision in Robbie the Pict v H M Advocate. On the contrary I think that I shall have to recuse myself so that the objection to Sheriff Pollock may be considered by another judge who is not a member of the Society.
[30] As already indicated, the pursuer proposed that I should remit this remit this matter to the Court of Session to be determined by a bench of judges who are not members of the Society. I am doubtful whether it would be competent for me to do this, and in any event I think that it is quite unnecessary. In my view the proper course would be to remit the cause to another sheriff of this sheriffdom who is not a member of the Speculative Society to hear and determine the pursuer's motion that Sheriff Pollock should decline jurisdiction. If the motion is granted, then arrangements can be made for future stages in this action to be dealt with by a sheriff other than Sheriff Pollock. On the other hand, if the motion is refused, then Sheriff Pollock can take the case over again.
[31] No motion was made in regard to the expenses of the hearing on 14 April 2005.