Consider the conduct of the judges in these instances. What grounds would justify, and what mechanisms would be available for, their dismissal in each case, if it were appropriate?

B. Consider the conduct of the judges in these instances. What grounds would justify, and what mechanisms would be available for, their dismissal in each case, if it were appropriate?

When assessing the grounds and procedure for the dismissal of members of the judiciary it is important to establish exactly who the judiciary is. Schedule 5 of the Judicial Pensions and Retirement Act 1993 lists the judiciary of the UK including the Lord Justice Clerk, judges of the Court of Session, sheriff principals and sheriffs. By examining the three situations outlined in the question it is intended to display the grounds and procedures that are required for the dismissal of the different levels of the Scottish judiciary. The first situation involves a sheriff and it is this case that I now turn to.

The grounds for possible dismissal must be established in the first situation concerning a sheriff. The issue which raises concern initially, is that Ranter has publicly expressed views on a topic, which he has at a later date adjudicated on. The second issue giving cause for concern is his agreement to join a Liberal Democrat working party. Before examining the common law it is important to assess how the statute law impacts on these situations.

The basic principle of judicial tenure stems from Article 13 of the Claim of Right 1689; that is “ad vitam aut culpam” (for life or until blame). Blame is further outlined in the Sheriff Courts (Scotland) Act 1971, s12 (2) as being

“unfit for office by reason of inability, neglect of duty, or misbehaviour”.

These are the three factors which would bring about the dismissal of a sheriff. Aside from these three broad categories there are certain standards that the judiciary are expected to adhere to and it is breach of these standards that have led to previous cases of dismissal.

Article 6 of the European Convention of Human Rights provides that

“in the determination of his civil rights and obligations of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.

This Human Rights Act 1998 is the most recent statutory provision providing for the impartiality of the judiciary. Clearly the case against Ranter would be based on his views against football violence expressed publicly in the Scotsman newspaper. As stated by Lord Hewart CJ in R v Sussex Justices ex p McCarthy,

“It is not merely of some importance but of fundamental importance that justice should not only be done but should manifestly be seen to be done”.

Following the Lord Justice Clerk Ross in Bradford v McLeod; the approach to a situation where there is the possibility of bias is based upon the case of Law v Chartered Institute of Patent Agents. The influential statement made by Justice Eve that

“if he has a bias which renders him otherwise than an impartial judge he is disqualified from performing his duty. Nay more, if there are circumstances so affecting a person acting in a judicial capacity as to be calculated to create in the mind of a reasonable man a suspicion of that mans impartiality, those circumstances ...

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This was also followed in Hoekstra v HM Advocate (No 2) where Lord McCluskey was disqualified and the decision of his bench was set aside. It appears that while Ranter should have disqualified himself from sitting on this case the defendants could apply to have his decision set aside as in the Hoekstra case.

The agreement of Ranter to join the Liberal Democrats working party goes against the convention stemming from the Avonside affair in 1968. This affair centred on Lord Avonside’s decision to join a Conservative working party, despite that fact that the judiciary should not be involved in party politics. Lord Avonside argued that there was no convention against this, but by resigning he affirmed the convention that the judiciary should not be involved in party politics in this manner. It is evident that this convention extends to sheriffs in Scotland following the dismissal in 1977 of a sheriff who had used his position as a platform for supporting independence for Scotland. Clearly the decision of Ranter to join the Liberal Democrats working party gives rise to grounds for his dismissal.

This leads us to the question of how sheriffs are actually dismissed. The procedure for dismissal of sheriffs is outlined in s12 of the Sheriff Courts (Scotland) Act 1971 as amended by the Scotland Act 1998. S12 (1) gives the Lord President and the Lord Justice Clerk powers to investigate any sheriff or sheriff principals fitness for office either on their own initiative or at the direction of the Scottish Ministers. If found to be unfit by reason of inability, neglect of duty or misbehaviour then under s12 (2) the Scottish Ministers can make an order for the removal from office of the sheriff or sheriff principal investigated.

It has been established that in the first scenario Ranter could be seen as biased and should have disqualified himself, whether or not this would open him up to dismissal would be at the discretion of the relevant bodies outlined above. In respect of his political activities Ranter has clearly breached a convention and is clearly open to dismissal if deemed appropriate by the Lord President or Lord Justice Clerk.

The second situation raises two significant issues, the first is concerning whether or not a charge of bias may be put against an Indian judge, presiding over a case where charges are brought against youths accused of random attacks on Indians. The second issue arises when during the trial, the judge discovers that the victim of the attack is the son of his next door neighbour.

The first issue is relatively simple to deal with. The test for bias was established in the case of Law v Chartered Institute of Patents Agent. While there is no Scottish authority on issues which would not disqualify a judge for bias it is presumed that the Scottish courts would follow the Lord Chief Justice, Master of the Rolls and Vice Chancellor in the Locabail Ltd v Bayfield Properties. In this case he outlined a list of factors which would not disqualify a judge on the grounds of bias. The list included the judges’ religion, ethnic or national origin, gender, age, class or means of sexual orientation. Therefore it is clear that the judge being of Indian origin has no bearing on this case.

The second issue, the fact that the judge knows one of the parties to the case, is more dangerous, this again gives rise to the question of bias. In the same Locabail case the Lord Chief Justice stated that

“a real danger of bias may well be thought to arise if there is a personal friendship or animosity between the judge and member of the public involved in the case”.

This statement was made re-emphasising the case of Metropolitan Properties Ltd v Lannon, where it was held that the decision of a rent assessment committee would be set aside where there was a reasonable suspicion that the chairman was biased for reasons of family and business connections. It is clear that by sitting on this case Singh the High Court Judge could reasonably be seen to be biased due to his relationship with one of the members of the case. Any decision as to whether or not this would constitute grounds for dismissal would have to be made following the correct procedures.

As Singh is a High Court of Justiciary judge the procedures for dismissal are different and are outlined in s95 of the Scotland Act 1998. Prior to this there was no policy for dismissal but it was presumed that if required the English policy would be followed. S95 (6) of the Scotland Act 1998 provides that the Queen on recommendation of the First Minister may only remove a judge of the Court of Session and that this recommendation would come from the First Minister. S95 (7) provides that the First Minister can only make such a recommendation if the Scottish Parliament has passed a motion resolving this recommendation should be made. This motion would only come about following the provisions in s95 (8) that a tribunal set up by the First Minister had reported to the Parliament that the Court of Session judge was unfit for duty by reason of inability, neglect of duty or misbehaviour.

Once again the first issue does not provide grounds for dismissal. However, by carrying on with the case; despite the personal relationship with one of the parties to the case; the judge may be held to have been or be seen to be biased and this may give rise to dismissal by way of neglect of duty. This would have to be through the procedures as outlined above.

In this third situation the Lord Justice Clerk presides over a case raised by the RSPB of which his wife is President, the issue again is clearly bias. The test for bias is objective

“whether a fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”.

Despite being an English case the essence is clear that justice must be seen to be done. This case has similarities to the case of R v Bow Street Metropolitan Stipendiary Magistrate ex p Pinnochet Ugarte (No 2) 2000. Where the judge would be automatically disqualified if he is acting as “the judge of his own cause” in the sense that he is connected with the subject matter of the case in front of him. While this case is distinguished from Pinochet; because it is the wife of the Judge who is related to the case; it is obvious that a reasonable person may suggest that the link between the judge and his wife and the case involving the RSPB could give rise to bias. Therefore, the Lord Justice Clerk should have disqualified himself from the case and there could be grounds for dismissal and if this was to be carried out it would have to follow certain procedures.

The procedures for dismissing the Lord Justice Clerk is regulated by s95 of the Scotland Act 1998 also and follows the same procedure as the removal of a court of session judge. However there is an additional requirement in s95 (10) (b)

“Where the person in question is the Lord President or the Lord Justice Clerk the First Minister must consult the Prime Minister

s95 (10) ( c )

“ He has complied with any other requirements imposed by virtue of any other requirement”

Based on the findings in the Pinnochet and Lannon cases it is likely that the Lord Justice Clerk would be found to have an interest in this case and should have disqualified himself from hearing the case. It is clear that this action may give rise to grounds for his dismissal on the basis of neglect of duty, but this of course would be a decision for the tribunal to make.

The independence of the judiciary is something which is closely guarded in the UK, and while the procedures for dismissing the judiciary are quite arduous they have been utilised when necessary. In the three situations it was clear that the impartiality of the judiciary was questionable. In such cases it is important for the judges in question to recognise and remedy this. However in all three situations this had not been done. By failing to recognise a situation that despite the fact they were not bias it could be conceived that they would be the judiciary have opened themselves up to criticism. A member of the judiciary can be declared unfit for office due to inability, neglect of duty and misbehaviour. In the first and last cases it could be argued that the High Court Judge and the Lord Justice Clerk had neglected their duty by failing to disqualify themselves from hearing the case. In doing so grounds for dismissal are apparent however it would be up to the recognised bodies through the correct procedures to decide whether dismissal would be appropriate. In the other case by ignoring the Avonside convention it is possible that the sheriff could be seen as unfit for office by misbehaviour. This action has given grounds for dismissal but whether or not this is the appropriate response would be dependent on the report submitted to the Scottish Ministers.

BIBLIOGRAPHY

Barnett , Constitutional and Administrative Law, Cavendish, 4th Ed 2002

Bradley and Ewing, Constitutional and Administrative Law, Longman, 13th Ed 2002

Judicial Pensions and Retirement Act 1993

Scotland Act 1998

Sheriff Courts (Scotland) Act 1971

R v Sussex Justices ex p McCarthy 1924 1 KB 259

Bradford v McLeod 1986 SLT 244

Law v Chartered Institute of Patent Agents 1919 2 Ch 276

Hoekstra v HM Advocate 2000 SLT 602

Locabail v Bayfield Properties 2000 All ER 65

Metropolitan Properties Ltd V Lannon 1969 1 QB 577

Porter v McGill 2000 All ER 465

R v Bow Street Metropolitan Stipendiary Magistrate ex p Pinnochet Ugarte (No 2) 2000 1 AC 119

Public Law of UK and Scotland

Essay: Consider the conduct of the judges in these instances. What grounds would justify, and what mechanisms would be available for, their dismissal in each case, if it were appropriate?

Karen Forbes

S0232546

Dr Jill Stavert

Monday 12-1pm

1924 1 KB 259

1986 SLT 244

1919 2 Ch 276

2000 SLT 602

1919 2 Ch 276

2000 All ER 65

1969 1 QB 577

Porter v McGill 2002 All ER 465