11 July 2011

"Humour is not without its place in the criminal courts..."

Unaccountably, the pickings from the Supreme Courts of Scotland have been remorselessly dry of late. No single mirthful judicial gewgaw have I spotted, to ease the tedium of unadorned legal analysis. No legal poetics on life's fankled untidiness, no sexual acts in Dundee cemeteries. Nowt. Nada. Zip. Dearth cannot last forever, and with Procurator Fiscal, Aberdeen v. Forrester, we have a cracker. The facts disclosed are rather bizarre. Thomas Forrester is a chief inspector of police in Aberdeen and at the time of the alleged offence, was head of Grampians road policing. The procurator fiscal charged him with dangerous driving under the Road Traffic Act 1988...

"The specification was that, on 26 November 2008 on the B977 Belhelvie to Dyce Road, he instructed Constable Ashley Forbes: (i) to activate the warning lights and sirens on the car in which they were both travelling; and (ii) to move the car into the offside lane, thus precipitating a collision between two cars travelling in the opposite direction. Constable Forbes was charged with the same offence, and ultimately convicted of careless driving, contrary to section 3. The respondent was also charged with wilful neglect of duty by failing to prevent the dangerous driving and not reporting the nature of the driving to the appellant."

The progress of Forrester's trial was hampered by delays. Seeking to come to some understanding of these delays, and eager to expedite proceedings, the sheriff called the lawyers into his chambers to discuss the case's progress.

"The [procurator fiscal] depute advised the sheriff that, amongst other witnesses remaining to be called, there were the police officers who had investigated the incident and ultimately interviewed the respondent. Upon hearing this, the sheriff remarked: "Oh! That will be the Gestapo!" Perhaps sensing that others may not have shared his sense of humour, the sheriff added "I didn't say that". No action followed immediately upon the sheriff's remark."

This choice piece of gay wit seems to have been discreetly ignored by the parties. Nobody likes to dwell on a failed jest, after all. Evidence progressed and the police witnesses who had interviewed Forrester appeared for the Crown. It transpired that their interrogation of Forrester ran almost unabated (there were two 20 minute breaks) for no less than four hours. Towards the end of this interview, amid protestations "of his strong ethical values and integrity and swearing on his daughters' lives that he had not done anything deliberate to put anyone in danger", Forrester "appeared to make an admission" capable of corroborating the evidence against him that was put before the judge. Subsequently, the presiding sheriff ruled this interview evidence to be inadmissible as unfairly obtained, holding that "the true object of the interview was to get the respondent to incriminate himself". This evidence being ruled out, there was no corroboration for the evidence adduced against Forrester - and the prosecution failed. Undeterred by this defeat, the Fiscal appealed, the Advocate-Depute arguing that the sheriff's Gestapo gag...

"... had it been overheard by the informed and independent observer, would have carried with it an inference of bias on the part of the sheriff. On being pressed on where that bias was directed, it was said that it was against the police instructed to carry out the investigation of the respondent's actions. Furthermore, the eventual decision of the sheriff on the admissibility of the interview disclosed that he had actually been biased."

According to Dorothy Bain QC, the sheriff's remark "had not been a joke, it had been an insult to the professional integrity of the officers about to give evidence." As such, because it "was in the public interest that trials were conducted in an independent and impartial manner and this had not been done", she invited to court to set aside the sheriff's decision.  Giving their judgment, Lord Carloway (joined by Lord Bonomy and Sheriff-Principal Lockhart) gave the Crown a classic understated judicial caning. Compared to the orotund prose of Judge Giovanni Bonello of the European Court of Human Rights, Carloway's remarks seem the very model of Scotch sobriety, more in sorrow than in anger.  As any Court of Session Kremlinologist would tell you, although ostensibly mild, the word "regrettable" should be read with a kick...

"An allegation that a judicial office holder is biased against the Crown, in the form of the local procurator fiscal, and investigating police officers is an extremely serious one. It should only be made where there is evidence to support it. Such evidence is not present in this case and the court is bound to comment that it is regrettable that the appellant appears to have lacked a sense of perspective in this matter. The court notes in this regard that the appellant's depute took no action at all in relation to the remark until after the sustaining of the respondent's submission. If the depute had seriously considered that the remark displayed bias, then she ought to have taken action at the time. Her failure to do so strongly suggests that no such bias was inferred and the court notes that the Advocate Depute did not submit that the appellant's depute had, in fact, so regarded the remark at any time."

Given the foregoing, it will come as no surprise that the bench refused the Crown's appeal. Giving their reasoning, Carloway offers us this splendid quotation from an earlier case, explaining the proper ambit of judicial drollery and Court clowning. The humorous golden mean for which any gentle shrieval revels should aim...

"In Wallace v Thomson 2009 SCCR 421, the sheriff had, in open court, made a flippant remark to a witness. This had prompted a ground of appeal concerning his assessment of credibility and reliability. This court said this:

"[18] Humour is not without its place in the criminal courts. No doubt, when used by a judge or sheriff, it requires to be used sparingly, with caution and not inappropriately. However, a Sheriff may consider that an element of levity might be temporarily introduced for a particular purpose; perhaps to put a nervous witness at his ease or to defuse a moment of unnecessary tension between procurators. No doubt, if the Court turned a trial into something akin to a comedy, an accused would have grounds of complaint were he to be convicted. Nothing of that kind has occurred in this case. The Sheriff appears to have made one flippant remark intended to be humorous. Perhaps it was; although it seems to have lost something in its translation to the printed page. The suggestion that an informed and reasonable observer would consider that this was an element demonstrating partiality is without foundation".

Very similar considerations apply in this case. The remark made by the sheriff was in chambers. It was not delivered in an open public forum. It was spontaneous and flippant. It may, or may not, have been regarded as humorous by those in chambers, even if, with hindsight, it cannot now be seen as either witty or appropriate. But the suggestion, which appeared to be implicit in the submission presented to the court, that the sheriff was actually comparing the behaviour of the Grampian police, in questioning a fellow police officer in Bucksburn police station, with the tactics of the Gestapo during the Second World War, must be dismissed as bordering on the ludicrous."

Everyone's a critic, eh?


  1. Richard Thomson11 July 2011 at 11:21

    You've just prompted a few laughs round the ofice about the wit and wisdom of Sheriff Irvine Smith...

  2. Dear me, yes! The Herald archive still have a piece or two from (mostly) Tom Shields' diary columns featuring tales from Sheriff Smith's court in Greenock.

    Here's a choice example from 1996 and the childhood of Ford Kiernan...

    "My shock-horror revelation concerns Ford's performing debut at the age of 14. The venue? Not Edinburgh's Fringe, no. Cowie Miners' Welfare? Nope. Ford Kiernan first fretted his stuff before the public at Glasgow's old sheriff court on a charge of being an accessory to the theft of a motor vehicle, the case being presided over by the legendarily sarky and quick-witted Sheriff Irvine Smith. Looming large among Ford's co-accused was one Kung Fu, so called because his limited wardrobe featured a jumper embroidered with those two words.

    Having been the one apprehended at the wheel of the stolen car, a dilapidated Mini estate, Kung Fu was thus called upon to outline the night's events. "We hud tae push tha effan thing fur three streets," Kung Fu explained. Having listened intently, Sheriff Smith repeated Kung Fu's phrase with a puzzled air before asking for details of his means of escape. "Ah goat a punty o'er a wa'," said Kung Fu. "A punty? O'er a wa'?" said the sheriff, looking more bemused. Kung Fu continued his defence, lamenting the Mini's unreliability: "The real bassterrty it wis we cudny get the c*** startet."

    At this point Sheriff Smith's air of bafflement intensified. "There's a word there I don't understand . . . perhaps you could explain it to me, young man," the sheriff said, as the courtroom held its breath. "Tell me, what does 'startet' mean?" It is no wonder that Sheriff Smith is now a star turn on the after-dinner speaking circuit."

  3. Richard Thomson11 July 2011 at 12:39

    Top notch. My personal favourite, in amongst fecund liars and chaps between legs, is this one:

    Lawyer: "And what is your occupation?"

    Accused: "Humphin' ginger at Springwells."

    Sheriff: "What?"

    Lawyer: "My client is endeavouring to inform the court that he is employed in a menial capacity by a well-known firm situated on the outskirts of Blantyre, which is engaged in the manufacture of aerated waters."

    Sheriff: "Oh. Why couldn't the fellow have said that in the first place?"

  4. There is nothing quite like the classlessness of the Scottish justice system...

    I had forgotten that the "fecund liar" was attributed to Irvine Smith - though predictably enough, the anecdote has mutated with the telling. In some versions, the sheriff's analysis of the panel's honesty is followed by mercy, "but I'm giving you one last chance" - to which the wag replies "Thank you, your Honour, you're a fecund good judge!"

    In other versions, there's no mercy, and the man meets the sheriff's allegation with "Oh no I'm not, I'm telling the fecund truth!"

    Which tale fits better with Sheriff Smith's reputation and character, I commend to your judgement!

  5. Dorothy Bain QC has to learn sometimes results go against you - 'n it's no funny.

  6. terrence,

    I imagine Ms Bain is quite recoiled to that! Perils of an adversarial system of justice: someone tends to lose out.