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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> F & Anor v Constanda & Anor [1998] ScotCS 32 (20 October 1998) URL: http://www.bailii.org/scot/cases/ScotCS/1998/32.html Cite as: [1998] ScotCS 32

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This matter has been brought before the Inner House by way of a Case for the Opinion of the Court of Session stated by the Sheriff in the course of hearing an application to the Sheriff at Glasgow under sections 42(2)(c) and 42(7) of the Social Work (Scotland) Act 1968. The application was made by the reporter in respect of a male child (d.o.b. 27.07.90) to whom we refer as "J.F.". It followed the making on 10 October 1996 of a direction by a children's hearing in respect of that child, under section 42(2)(c) and section 42(7) of the 1968 Act. The reporter was thus required to make application to the Sheriff for a finding as to whether the specified grounds for referral, which were not accepted by the child's mother, M. McA., were established. The grounds of referral related to a condition mentioned in section 32(2)(d) of the 1968 Act. The statement of facts in support of the condition referred to alleged inter alia that on a number of dates and at a number of different addresses the first-named appellant, F. F., engaged in criminal sexual behaviour with a number of young children, who were related to the second-named appellant. One of them, referred to by name in paragraphs 12, 13, 14, 15, 16 and 17 was D. McL., born 25.03.82. As the stated case explains, the case called before the Sheriff for proof on 16, and was continued for further proof on 17, 18 and 19 December 1996. All parties were legally represented. On the motion of all parties the child's attendance was dispensed with. Over the four days in December the Sheriff heard evidence from the three sisters and also from another child, Da. McL. On the fourth day of the proof the Sheriff asked questions of the witness D. McL. or made statements which led the reporter to invite the Sheriff to note an objection to the way in which the Sheriff was conducting the proof. The stance of the reporter was supported by the curator ad litem and was duly recorded. The evidence continued on the fourth day and the diet was adjourned until 3 February 1997 for the continuation of the proof, which, it was estimated, might last another five days.

At the resumed hearing on 3 February 1997 the reporter, then represented by senior counsel, moved that the Sheriff should disqualify himself from hearing the case further on the ground that the remarks he had made during the course of D. McL's evidence created a clear impression of "bias". It was asserted that what the Sheriff had then said must give rise to the impression that he was there and then rejecting evidence which she was then giving and to the further impression that he might be taking a similar attitude towards other female witnesses whose evidence had already been heard. The submission was that the Sheriff's interventions would give to the reasonable observer the impression that the Sheriff had made his mind up wholly prematurely. Accordingly justice could not be said to be seen to be done. That motion was opposed by counsel for the appellants both in substance and also on the procedural basis that there could be no remedy for a party in respect of such a matter other than to appeal to the Court of Session under section 50 of the Social Work (Scotland) Act 1968 after the Sheriff had concluded the inquiry and made his findings as to what was established in relation to the grounds referred to him. The submissions of the parties are narrated in the stated case.

The Sheriff explains in the Case stated by him that his mind remained completely open. However, he was ultimately persuaded that an outside observer might be likely to see his treatment of the witness as implying bias, in the sense of indicating that he had made up his mind on matters of credibility and reliability before the hearing of all of the evidence. Thus, regardless of the underlying reality, namely that he had not made up his mind, he concluded that the proper and fair thing to do was to disqualify himself from taking any further part in the proceedings and to put the case out for hearing de novo before another Sheriff. He did so and fixed the date 13 February 1997 as a diet for that purpose. Those representing the appellants asked for leave to appeal and he granted that leave. The result was that the matter came before the court by way of Stated Case. The Stated Case was signed on 18 April 1997.

It is appropriate at this stage to note that we were informed that, in August 1997, F. F. was convicted by a jury in the High Court in Glasgow of a number of criminal offences arising out of the same incidents of criminal sexual behaviour which were referred to in the grounds placed before the Sheriff by the children's panel. Following that conviction, F. F. was sentenced to eight years' imprisonment. It appears, however, that an appeal has been taken against conviction on a substantial number of grounds. When the present case came before the Inner House on 5 November 1997, the court was advised of these developments; and a diet for hearing the case for the Opinion of the Court was discharged on the ground that the issues raised by the Stated Case would be academic if the conviction were to be upheld. The matter came before this court again in September 1998, by which time it had become clear that the appeal had not been dealt with and, because of the substantial number of grounds of appeal, it could yet be some considerable time before it was determined. The case was then allocated to the Summar Roll for 8 October 1998. On that date the court was informed that the first-named appellant F. F. did not intend to attend the hearing on the Summar Roll or to be represented at it. The hearing, however, proceeded with all other parties represented.

At the outset of the hearing, counsel indicated that the reporter was maintaining that the issue was still live, despite the passage of time. Counsel for the reporter explained that the first-named appellant was at liberty, having been released on bail pending the determination of his appeal, and that the reporter did not accept that, as the second-named appellant was asserting, her relationship with the first-named appellant was over and finished. As the child was residing with the second-named appellant, the matter was still live. The court accepted that the case should not be treated as raising purely academic questions.

On the first matter of competency, Mr. McLeod, who appeared for the second-named appellant, submitted that it was not competent, at this stage, to review the Sheriff's decision by way of stated case. In essence, his submission was that no provision was made for any such appeal in the 1968 Act or the relevant rules. (We should note that the pertinent provisions of the 1968 Act have now been repealed and replaced by provisions in the Children (Scotland) Act 1995). In relation to competency, the essence of the submission was that the Act and the relevant rules did not allow for any such appeal. It was intimated on behalf of the reporter and the curator ad litem that they were not intending to make submissions about the competency of an appeal under the provisions of the Social Work (Scotland) Act 1968 but would contend that, if such an appeal were not competent, the court should consider the matter under its nobile officium jurisdiction. Counsel for the second-named appellant, M. McL., was content that the matter should be so considered. Having regard to the fact that the 1968 Act has now been replaced by new provisions, to the fact that the question of competency of an appeal at this stage were not to be fully argued before us and the desire of parties to have this matter determined as soon as possible, a long delay having already occurred, the court concluded that without deciding any of the questions of competency it should determine the live issues raised by the first five questions posed in the stated case.

In relation to the first two questions, counsel for the second-named appellant submitted that, except in the rare case of impossibility, a Sheriff could not disqualify himself from hearing further evidence once he had started to hear evidence following an application to him under section 42. The submission was that, whatever his personal circumstances (apart from some supervening impossibility) the Sheriff to whom the application had been made and who had started to hear evidence, required to hear all the evidence and make a determination as to which grounds were established. No appeal could be taken until after such a determination had been made.

In our opinion, this argument is wholly without merit. It is clear that the Act and the appropriate rules made thereunder do not contemplate that the ordinary rules of procedure applicable to civil proceedings apply to references to the Sheriff under Part III of the Social Work (Scotland) Act 1968; but there is nothing in the Act to oust the ordinary provisions of the common law in relation to declinature of the Sheriff's jurisdiction. It is clear that any objection to the continued exercise by a Sheriff of his jurisdiction ought to be stated when the ground of objection emerges: Duke of Athole v. Robertson (1869) 8 M. 299; and it is perfectly clear that the ground of objection to the exercise of jurisdiction might not emerge until after the commencement of the proof, as in the present case where the ground of objection arises out of the alleged conduct of the Sheriff in the course of the proof itself. In our view it is too clear for argument that, if a Sheriff concludes that there are substantial and compelling grounds for holding that he is or has become disqualified from hearing the case, he should not continue to do so but should decline to continue to exercise jurisdiction. If there was indeed a fatal objection to the continued exercise by him of his jurisdiction, any proceedings affected thereby would be wholly vitiated by such a circumstance.

On the merits, counsel for the second-named appellant further submitted that, in the circumstances narrated by the Sheriff in the case, the Sheriff should not have disqualified himself. He accepted that the language used by the Sheriff in relation to the witness and her evidence was not appropriate and might lead the impartial observer to conclude that he had made up his mind prematurely. However, since the Sheriff had made it abundantly clear that he had not made up his mind, what he should have done was to explain that publicly; that would have led the reasonable and impartial observer to conclude that there was in fact no risk to the proper administration of justice in the cause. The Sheriff had been wrong to exercise his discretion by concluding that he should cease to hear the case. He should not have granted the motion made on behalf of the reporter and should not have put the case out for hearing de novo before another Sheriff. It was submitted on behalf of the second-named appellant that this court should send the matter back to the Sheriff who had heard the first four days of evidence to continue to hear such evidence as was presented to him. Accordingly the first five questions should be answered in the negative.

Counsel for the reporter, whose submissions were adopted on behalf of the curator ad litem, explained that it had been felt necessary to raise the matter before the Sheriff on the occasion when it was raised because that was the earliest opportunity for making the submission that the Sheriff should hold himself disqualified from continuing to exercise jurisdiction in the case. Had the point not been taken at that stage, the reporter might not have been able to raise it at any subsequent stage, notably after the Sheriff had determined the matters of fact which were before him for the making of findings. While it was accepted that the evidence of D. McL. did not relate to every single incident of criminal sexual behaviour covered by the narratives in paragraphs 2 to 17, counsel argued that the Sheriff's openly expressed views about D. McL's evidence, in the course of her evidence, could throw into doubt the Sheriff's impartiality so far as the whole proceedings were concerned and, in particular, so far as the evidence already given by the crucial female witnesses whom the Sheriff had already heard. In this connection he referred to the Sheriff's statement, on page 14 of the Case, to the effect that he was satisfied that an impartial observer might have formed the impression that the Sheriff's impartiality was in doubt in relation to the whole proceedings. In these circumstances, this court had no reason to interfere with the Sheriff's judgment of the issue and should decline to interfere with the course which he had adopted. It was, therefore, submitted that this court should send the matter back to the Sheriff, making it clear, however, that the Sheriff who should now hear evidence in relation to the matters referred should be a different Sheriff from the one who heard the part proof. Counsel for the reporter asked that it should be noted that the substantial delay in this case was attributable to the reluctance of the Court of Session to hear what might well turn out to be a purely academic appeal if the convictions of the first-named appellant in relation to the same course of conduct were to be upheld on appeal. However, as it had now become apparent that that appeal might not yet be determined for some time, and as the first-named appellant was at liberty it was appropriate to decide the matters now.

In response to questions by the court, counsel for the reporter explained that the reporter had written to the procurator fiscal on 18 April 1997 drawing attention to the provisions of section 48 of the Criminal Procedure (Scotland) Act 1995 with a view to obtaining an order under that section by the court in the event of the conviction of the first-named appellant. It is not clear, however, that any attempt was made by anyone in court to bring the terms of section 48 to the attention of the court following the conviction of the first-named appellant. This appears to us to be regrettable. We would expect that criminal courts should always give consideration to exercising their powers under this section in appropriate cases.

In relation to the main issues raised by questions 3, 4 and 5, we consider that we must proceed upon the basis, which is largely common ground between the parties and the Sheriff himself, that the Sheriff's interventions during the evidence of D. McL. would have been likely to cause the impartial and informed observer to conclude that the Sheriff was displaying "bias", in the sense that he might have appeared to have formed prematurely a view as to the credibility and reliability of an important witness before the conclusion of that witness's evidence and when there was much other evidence yet to be heard. On this basis, the first matter that we wish to note is that, even accepting the criticism of the Sheriff which parties were agreed upon and the Sheriff himself accepted, it did not follow that his judgment in relation to matters wholly unaffected by the evidence of D. McL. was tainted by any premature forming or expressing of a view about her credibility. It might well have been possible for the Sheriff, in the light of the whole evidence, to reach conclusions in relation to several of the other matters without coming to any final view as to the reliability and credibility of the witness D. McL. That was a factor which the Sheriff should have taken into account in deciding whether or not to conclude that he should cease to deal with the case. It would, in our opinion, have been entirely appropriate for him to have had in mind the observations of the Lord President in McGregor v. D. 1977 S.C. 330 at p. 336 to the effect that the scheme of Part III of the Social Work (Scotland) Act 1968 is to search for a solution which will be in the best interests of the child, and to do so without pleadings or pleas derived from ordinary civil procedure, in proceedings which were "quite informal". When a reference was before the Sheriff "the ordinary codes of civil and criminal procedure do not apply". He adds on page 337 that, even if in a few cases the use of civil procedures might save time, the scheme of the Act, avoiding such procedures, was designed to secure "simplicity and informality". In our opinion, the Sheriff should have had such considerations in the forefront of his mind in determining whether or not he should proceed with the hearing. He should furthermore have had expressly in mind the undesirability of taking a course that would require the children whose evidence he had already heard over a period of days to give that evidence all over again before a different Sheriff. He should certainly have borne in mind that the issue of the child's welfare required an early conclusion to the proceedings and that the course he was being invited by the reporter to adopt would be likely to result in significant delay. He should also have considered that, even if he were wrong not to disqualify himself, that matter could, if necessary, be raised appropriately under an appeal brought under section 50 of the Act after he had made his findings as to what was established in relation to the grounds of appeal. In our view, the Sheriff misdirected himself by not expressly taking all these matters into account when exercising his judgment as to whether or not the mere appearance of "bias" on his part was sufficient to render the first four days of the proof entirely nugatory and to necessitate a fresh start. To be fair to the Sheriff, however, we must note that these considerations do not appear to have been placed before him.

We must, however, decide the matter now upon the basis that the Sheriff has in fact concluded that what he did might have cast into doubt his impartiality so far as the whole proceedings were concerned and that he should therefore be disqualified from taking any further part in the proceedings. In the light of those views, and having regard to the lapse of time since the Sheriff last heard evidence, we have come to the conclusion that we should simply send the matter back to "the sheriff" (within the meaning of section 42(2)(c) of the 1968 Act). We shall, however, direct that any further proceedings be conducted before a different Sheriff from the one who has stated the present Case. This was the course taken by the court in Sloan v. B. 1991 SC 412.

We accordingly answer questions 1 and 2 in the affirmative. We do not find it necessary to give specific answers to the remaining questions.