Appeal allowed over sheriff cross-examining accused

A sheriff has been criticised by the Criminal Appeal Court for undertaking a cross-examination of an accused such as to give the impression that he had formed an adverse view of the accused's credibility.

Lord Justice General Carloway, Lord Malcolm and Lord Turnbull gave the ruling in allowing an appeal by Adnan Ahmed against his conviction on five out of 18 charges in an indictment, all five under s 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 by approaching young women and attempting to engage them in conversation, making remarks about their appearance and in one case (charge 4) touching her on the cheek and attempting to kiss her.

At trial in Glasgow Sheriff Court before Sheriff Lindsay Wood, the complainers each gave evidence that they had been left uncomfortable or shaken by the incident. 

After the accused had given evidence one afternoon, the sheriff said he wished to ask some questions in clarification, but without explaining why, said he would do so the following morning. On appeal the accused maintained that the sheriff had then asked questions which were unnecessary, some which were irrelevant, some which sought comment and some in which he contrasted the accused's evidence with that of the complainers. At one stage counsel had sought to object and when she persisted, the sheriff responded: "No, would you sit down please. You will be given an opportunity and you know the rules". The Crown conceded at the appeal hearing that the sheriff had not been entitled to proceed as he did, and that he should have heard counsel on the objection.

Lord Turnbull, giving the opinion of the court, said that nothing the sheriff had raised constituted clarification. Further, his summarising aspects of the complainers' evidence, contrasting it with the accused's account and asking him whether the witness was mistaken or lying, "had all the hallmarks of cross-examination designed to undermine the testimony of the [accused], although we would observe that, in our opinion, it would be objectionable to ask a witness for comment of this sort and such evidence would be inadmissible".

In doing so he at times incorrectly stated the complainers' evidence and led to the accused referring to a matter on which evidence had successfully been objected to.

Lord Turnbull concluded on this ground: "In the present case the concession made by the advocate depute could not sensibly have been withheld. The trial sheriff engaged in an exercise which could only be described as cross-examination. The informed and impartial observer would readily have concluded that the sheriff had formed an adverse view on the credibility of the appellant’s evidence. The result was a miscarriage of justice and the appeal against conviction on each charge must be upheld on this ground."

Affirming the professional responsibility of counsel to intervene, he added: "In the present case counsel was correct to object to the sheriff’s questioning when she did. The exercise which the sheriff was engaged in had already lacked any element of clarification and at the point when she rose to her feet the sheriff appeared to be in the process of arguing with the appellant. It is unacceptable for a judicial office holder to address a responsible practitioner by telling her to sit down. Such behaviour carries the risk of demeaning the standing of the judiciary in the eyes of both the legal profession and of the public."

On further grounds of appeal the court considered that the sheriff had not misdirected the jury on the Moorov rule although he did not follow the Jury Manual, but should have upheld a no case to answer submission on three charges in relation to which there was no suggestion of any threatening language, manner or tone, or sexual innuendo. "It does not seem to us that a polite conversational request or complement can be construed as threatening merely because it is uninvited or unwelcome", Lord Turnbull observed. In those circumstances the subsequent sending of an abusive text to one complainer could not be open to mutual corroboration as between that charge and charge 4.

In the result the appeal was allowed on all remaining charges.

Click here to view the opinion of the court.