Outer House quashes tribunal decision that sheriff who acted inappropriately towards female lawyer should not be removed from office

Lord Woolman

About this case:

• Citation:
  [2022] CSOH 15
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Woolman

A petition challenging the decision that Sheriff John Brown was fit for office was made by the lawyer, X, who argued that the tribunal’s decision was unfair as it was made without consideration of allegations made by two other women who gave statements to the police.

The petition was heard by Lord Woolman. McBrearty QC appeared for the petitioner and Duncan QC for the sheriff as the first interested party. The Scottish Courts and Tribunals Service and the Lord Advocate also appeared as interested parties.

Outside the remit

The petitioner had regularly appeared at hearings before Sheriff Brown in 2018 and alleged that he had acted inappropriately towards her in this period. She voiced her concerns to her manager, who lodged a formal complaint on her behalf which led to a “fitness for office” tribunal being convened by the Judicial Office for Scotland. While the tribunal found that one allegation had been proved, it did not recommend he should lose his office.

A parallel investigation was undertaken by the police, who took statements from two other females, C1 and C2, who claimed the sheriff had acted inappropriately towards them prior to his appointment to the bench. C1 stated that the sheriff had placed his hand inside her bra one evening in 1999 and touched her breast, while C2 referred to incidents from the early 2000s when he kissed her on the mouth in a courtroom and patted her bottom when congratulating her on a recent promotion.

It was ultimately decided by COPFS not to prosecute the case, but it forwarded the statements of C1 and C2 to the Judicial Office for Scotland with their consent. A retired Court of Session judge, Lord Bracadale, had been appointed the tribunal’s Investigating Officer. He concluded that C1 and C2’s statements fell outside his remit.

The tribunal found that on the balance of probabilities the only allegation that had been established was that the sheriff had made an inappropriate remark about X having a “pretty face” and hugged her. It was contended by the petitioner that without being aware of the allegations of C1 and C2, the tribunal’s decision was in breach of the rules of natural justice.

Counsel for the sheriff argued that the scope of the tribunal’s jurisdiction did not extend to the claims made by C1 or C2. As an alternative position in the event that the court found against the sheriff, it was argued that it would be unjust to remit the case as it would amount to double jeopardy.

Proceeded in ignorance

In his decision, Lord Woolman said of the likely effect of the statements had they been admitted as evidence: “No doubt any attempt to refer to this evidence would have resulted in an objection. But there are grounds for thinking that the tribunal would have ruled in favour of admissibility.”

He explained further: “The 2015 rules envisage that the investigating officer may uncover matters beyond the terms of the original complaint. It would be odd if such new material could not figure in the tribunal hearing. The tribunal has wide powers to regulate its own procedure, including the power to amend documents, which must include the statement of reasons.”

Addressing arguments that he should not interfere with the tribunal’s decision, Lord Woolman said: “Decisions of specialist tribunals should command respect. [The] force of that proposition is not in issue. But it is inapt in this case because X does not quarrel with the reasoning or approach of the tribunal. Instead she says that the integrity of its decision is compromised because it was not put in possession of all the facts.”

He went on to say: “As all judges are aware, dynamics shift during the course of a hearing. Sometimes that shift can be subtle. Sometimes it can be profound. There is a real possibility that the allegations of C1 and C2 might have altered the decision on the merits.”

Lord Woolman concluded: “The tribunal proceeded in ignorance of the availability of other evidence. That fact is not contentious. X and her advisers were not responsible for the mistake. It did have an impact on the reasoning. Accordingly I shall quash the tribunal’s decision.”

In a postscript addressing further procedure, he added: “My task has been to determine whether the tribunal’s findings can stand. I have completed that task. I do not consider that it is appropriate or perhaps even competent for me to decide if (a) the original tribunal, if it does still exist, can reconsider this matter, (b) a new tribunal should be constituted, or (c) the individuals who should serve on such a tribunal. Were it competent for me to decide these matters I would conclude that the case should be determined by a freshly constituted tribunal.”