Sheriff’s comment that child witness was ‘very brave’ did not render trial unfair

The Sheriff Appeal Court rejected the argument that the sheriff was “apparently biased” as it refused to pass a bill of suspension by Tariq Chaudhry, after ruling that the remarks did not reveal the sheriff’s view as to the teenager’s credibility, reliability or quality of her evidence.

Sheriff Principal Mhairi Stephen QC, sitting with Sheriff Principal Alastair Dunlop QC and Sheriff Michael O’Grady QC, heard that the 59-year-old complainer was sentenced to nine months imprisonment after being convicted following a trial at Hamilton Sheriff Court in October 2016 of three separate contraventions of section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995.

The three female complainers gave evidence in support of the charge in which they featured in the case, in which the Moorov doctrine applied.

The sheriff found that the complainer had “systematically abused” young girls who were working for him in what was their first job.

But the complainer argued that his conviction and sentence should be quashed as he was denied a fair trial.

He based his argument on remarks made by the sheriff at the conclusion of the evidence of the complainer in charge 1, which was the most serious of the three charges.

The court was told that the complainer “NF”, a vulnerable witness who was allowed her to give evidence with the use of screens and in the presence of a supporter from the witness service, became “significantly distressed” during her evidence.

At the conclusion of her evidence the sheriff thanked her then told her that she had been “very brave in giving her evidence”.

In his report the sheriff accepted that he made that comment, but said it was an “instinctive remark” given the context, adding that he had not made up his mind on the credibility and reliability of the witness when he made the comment.

However, it was submitted that the sheriff acted “erroneously, oppressively, unjustly and contrary to law”.

In support of the bill counsel for the complainer argued that the remark made by the sheriff was “sufficient to raise a suspicion in the mind of a reasonable man that the sheriff was not impartial”, thereby denying the complainer a fair trial.

It was submitted that the case was similar in facts and circumstances to that of Hogg v Normand 1992 SLT 736, in which the sheriff commented to the mother of two young girls who had just given evidence that they could leave the court and that she should be proud of her daughters who were a credit to her, which was held sufficient to raise a suspicion in the mind of a reasonable man that justice was not impartial.

Although it was accepted that the remark made by the sheriff in the present case was made in good faith and with the best of intentions, it could be interpreted as “approval or acceptance” of the evidence given.

However, the appeal sheriffs held that the comment was “likely in the mind of a fair minded and informed observer to relate to the distress she suffered in giving her evidence”.

Delivering the opinion of the court, Sheriff Principal Stephen said: “In our opinion, the words do not betray the sheriff’s view as to her credibility, reliability or the quality of her evidence.

“Further, no conviction could follow in this case without there being evidence from more than one complainer as to the accused’s behaviour towards them of a sexual nature which the sheriff could accept as credible and reliable.

“Another factor which can be taken into account and which is referred to by the sheriff in his report is this – the accused and his solicitor were present in court when the remark was made yet no objection was made at the time nor in submissions at the conclusion of the evidence.

“That is yet another factor which the fair minded and informed observer would have had regard to. For these reasons we cannot find any proper basis in the argument that the sheriff was apparently biased and we decline to pass the bill.”