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Aberdeen City Council v Robb

2004 SLT 21

Court: Sh Ct

Judgment Date: 20/01/2004

Cases considered by this case
Annotations: All CasesCourt: ALL COURTS

HUMAN RIGHTS - SHERIFF - BIAS - SHERIFF WITHDRAWING FROM HEARING CASE BECAUSE OF PREVIOUS INVOLVEMENT WITH DEFENDER - SHERIFF SUBSEQUENTLY PRESIDING OVER LATER HEARING OF SAME CASE - WHETHER GIVING RISE TO APPEARANCE OF BIAS - EUROPEAN CONVENTION ON HUMAN RIGHTS, ART 6(1)

The pursuers were the landlords and the defender the tenant of a house in Aberdeen. The pursuers sought an order for recovery of possession of the house in terms of s 16(2) of the Housing (Scotland) Act 2001. The basis of the action was that the defender, a person residing in the house with him and persons visiting the house had acted in an anti-social manner. A diet of proof was fixed for 21st July 2003. The sheriff initially presiding in the court, Sheriff Bowman, withdrew saying that she could not deal with the case because of her previous involvement with the defender (who was not present in court). Sheriff Bowman had previously found the defender guilty of breaching an anti-social behaviour order and had sentenced him to a period of imprisonment. She was replaced by another sheriff who discharged the diet of proof and continued the case until 4 September 2003 for a procedural hearing. On that day the defender was again not present. Sheriff Bowman, who was once more presiding in court when the case was called, did not think it necessary to withdraw this time and decided to grant the order sought by the pursuers. The defender appealed. In this hearing the only question considered was whether in granting decree the sheriff had acted in breach of art 6(1) of the European Convention on Human Rights. The defender submitted that the sheriff had not been impartial. The pursuers submitted that the impartiality of the sheriff had to be judged from both a subjective and an objective point of view. Judged subjectively, there was no need for concern. The objective test was whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. The pursuers submitted that a fair-minded observer would appreciate that criminal and civil proceedings were quite separate.
Held - The appeal would be allowed. A fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the sheriff had been biased against the defender when she presided at the hearing of this case on 4th September 2003. While the court was by no means persuaded that there was in fact any need for the sheriff to have withdrawn from the case on 21st July 2003, the fact of the matter was that she had evidently felt obliged to do so, and had done so on her own initiative. A fair minded and informed observer would quite legitimately ask why, if the sheriff was unable to preside at the hearing on 21st July 2003, she was nonetheless able to do so on 4th September 2003. The principal issue in each hearing was the same and in neither hearing was the defender actually present. The reason for the sheriff's behaviour was not known. It was unlikely that there would be a difference in the procedure to be followed at the later hearing as compared with that at the earlier hearing which might have had a bearing on the issue of the sheriff's impartiality. In these circumstances the sheriff's presiding over the later hearing constituted a violation of art 6(1) of the Convention and was as such unlawful in light of s 6 of the Human Rights Act 1998. In this situation the correct course was to recall the order of the sheriff dated 4 September 2003 and remit the cause to be dealt with by another sheriff.