Judge quashes sheriff investigation tribunal findings
A judge quashed the decision of a tribunal investigating the conduct of a sheriff accused of inappropriate conduct towards a court lawyer, because information had been withheld from the tribunal.
The tribunal was set up under statutory rules to investigate Sheriff Jack Brown following a complaint by a female lawyer ("X") over alleged behaviour in 2018. Chaired by Lord Justice Clerk Lady Dorrian, it appointed Lord Bracadale, a retired judge, as investigating officer. He became aware of a police inquiry into complaints by two other women, C1 and C2, that the sheriff had behaved inappropriately towards them on occasions in 1999 and the early 2000s before he became a sheriff. Prosecutors had decided, on the evidence, not to proceed.
Lord Bracadale had concluded that the tribunal’s remit was to consider the complaint made by X and not the allegations by C1 and C2, and their statements were not put before the tribunal.
The tribunal determined that the sheriff had "made an inappropriate remark about ‘a pretty face’ and hugged someone he had, misguidedly, come to view as a friend" outwith the courtroom. Two further allegations of misconduct made by X were been found not proven. It concluded that, although the sheriff had behaved inappropriately, it did not justify his removal from office.
In a judicial review, X argued that the evidence of the other complainers would have been necessary for the tribunal to reach the best and safest solution. While no one had been at fault, the judgment was unfair. The tribunal had reached its decision without being aware of additional allegations which could have impacted the key issues.
The sheriff argued that the tribunal’s task was to determine X’s allegations. This did not extend to the claims made by C1 and C2.
Lord Woolman ruled that X had not received "a fair crack of the whip". The case met the test of objective unfairness in R v Criminal Injuries Compensation Board, ex p A (1999), as well as the four stage test in E and R v Secretary of State for the Home Department (2004). However further procedure was for the Lord President and the First Minister to determine. He added: "Were it competent for me to decide these matters, I would conclude that the case should be determined by a freshly constituted tribunal".