Motorist who claimed justice of the peace ‘lacked impartiality’ loses appeal against conviction for driving while using mobile phone

The complainer alleged that the justice demonstrated “bias” by bringing the defence’s cross-examination of a police witness to a “premature end” and commenting that she found the two officers who gave evidence to be “credible and reliable”.

But the Sheriff Appeal Court ruled that the justice was simply attempting to bring to an end “repetitive, aggressive and ultimately futile and unproductive questioning” and that the a “fair minded and informed observer” would not conclude that there was a real possibility of bias.

Sheriff Principal Mhairi Stephen QC, sitting with Sheriff Principal Craig Turnbull and Sheriff Nigel Ross, heard that the complainer James Mullen was charged with driving a van in King Street, Nairn on an occasion in March 2017 when using a mobile phone as a sat nav, contrary to regulation 110(1)(b) of the Road Vehicles (Construction and Use) Regulations 1986 and section 41D(b) of the Road Traffic Act 1988.

He was tried and convicted of the charge at Inverness Justice of the Peace Court in December 2017, following which the justice imposed a fine of £300 and six penalty points.

‘Unfair trial’

However, the complainer appealed against his conviction by Bill of Suspension, claiming that the justice “lacked impartiality”.

The court was told that the offence was proved on the evidence of two police officers who were on duty at the locus - one of whom had made an entry in his pocket book at the time and the other some days later.

Both recorded the complainer’s name accurately as James Mullen, but in a subsequent disclosure statement the complainer’s first name was given incorrectly as “Steven” - an error replicated in the statement of each officer.

The defence agent cross-examined the officers about this anomaly with the purpose of establishing that they had “colluded” with each other to present “false evidence” to the court.

It was suggested that the second police officer, Sergeant Murray, had not observed the complainer with a hand-held device but had simply “copied his colleague’s notebook”.

The complainer’s position was to the effect that the justice brought the defence agent’s questioning of Sergeant Murray to a premature end with the comment that she found the police officers to be credible and reliable.

In doing so, it was argued, she disclosed “bias”, as the comment indicated that she had already “made up her mind” as to credibility and reliability at that stage and before the complainer gave evidence, meaning the complainer could “no longer receive a fair trial”.

‘Badgering the witness’

However, in her report to the appeal court the justice observed that when the police witness did not accept the defence case the cross-examination developed into alternative propositions that the officer was either mistaken or lying, and it was repeatedly put to the officer that he had colluded with his colleague to “fabricate evidence” against the complainer.

The witness refuted these suggestions, explaining that the anomaly was an “innocent mistake” arising from a typographical error in producing the disclosure statement.

The defence agent, the justice reported, “proceeded to put the same position repeatedly to the witness in a progressively more aggressive manner accusing him of lying and collusion”.

The justice said she allowed the defence “considerable latitude” but she thought he was simply “badgering the witness” in an “unacceptably aggressive manner” and directed him to move on.

It was at around this stage in the trial that the justice made the remarks complained of.

The complainer then gave evidence in his defence to the effect that the device which the police officers noticed was not a mobile phone but a ‘Tom Tom’ sat nav which had fallen into the foot well and he had picked it up.

At the conclusion of the evidence the justice found the Crown witnesses to be credible and relatable and gave reasons for rejecting the complainer’s evidence.

However, it was submitted that in terms of article 6 of the European Convention on Human Rights the courts required to show both “objective and subjective impartiality”, and that in these circumstances a fair minded and informed observer would conclude that there was “a real possibility that the tribunal was biased”.

‘No actual or real possibility of bias’

Refusing the appeal, the court observed that by the stage the remarks were made, whatever they may have been, the fair minded observer would know that the defence had been conducted in a “confrontational and unpleasant manner” and that the justice’s comments were not an assessment of the evidence.

Delivering the opinion of the court, Sheriff Principal Stephen said: “We do not consider it is necessary to resolve the apparent conflict about what the justice said at the conclusion of cross-examination of Sergeant Murray. Although it is contended by the complainer that the justice mentioned the words ‘credible and reliable’ it appears that the recollection, and it is only recollection not record, of the respondent’s depute is that the justice mentioned ‘credible’ (with no mention of reliable).

“It appears to us that plausible and credible in their ordinary sense, are synonyms or near synonyms. Credible, of course, has a technical and an ordinary meaning. The technical or legal meaning in the context of a criminal trial refers to the judge’s important function in assessing and evaluating the oral evidence of witnesses to determine issues of primary fact. However, in their ordinary sense, plausible and credible mean that the individual is capable of being believed although plausible may carry with it the suggestion of a mere appearance of being acceptable or trustworthy.”

She added: “We consider that the justice’s use of the expression plausible or credible is explicable in the context of what preceded it, namely, the prolonged and unproductive cross-examination of a police officer who was repeatedly accused of lying. In mentioning the explanation given for the error in the complainer’s name the justice does no more than indicate that the police officer’s explanation for the entry in the disclosure statements is potentially exculpatory.

“In our view, it does not indicate that the justice was expressing a view about the Crown evidence overall but was simply attempting to bring to an end a lengthy, unjustified and apparently abusive line of questioning. In these circumstances, we are not persuaded that the Justice, who is not a professional judge, by her words would lead the fair minded and informed observer to conclude that there was actual bias or the real possibility of bias. Accordingly, we decline to pass the bill.”