Lowe v Brown
| Jurisdiction | Scotland |
| Judgment Date | 13 March 1997 |
| Neutral Citation | 1997 SCCR 340 |
| Docket Number | No. 27. |
| Date | 13 March 1997 |
| Court | High Court of Justiciary |
JC
L J-C Cullen, Lord McCluskey and Lord Cowie
Procedure—Summary procedure—Trial—Conduct of sheriff—Sheriff questioning co-accused “with some incredulity”—Whether bias—Whether justice seen to be done
The complainer and others were tried on a complaint which libelled,inter alia, the assault of a man. That man spoke to there having been a commotion at his door and when he went to open it there were two women, the co-accused and the complainer, standing outside brandishing baseball bats. He said that the co-accused had swung at him and his wife with the bat and then the two women cried out for the other co-accused, who was wearing a mask, and who attacked the man and his wife. The co-accused, in her evidence, said that, after a telephone call, the two women had gone round to the man and wife's house where there was an exchange of abuse. She also said that the man had run out of his house with a knife and fell. He then shouted out and, according to her, a man with a mask on came running out of the man and wife's house, at which point the co-accused and the complainer ran away. The sheriff stated in his report that that evidence was so diametrically opposed to what he had already heard from the complainers, and so inherently improbable, that he asked the co-accused some questions “with some incredulity”, in order to test her evidence. On being convicted, the complainer appealed to the High Court of Justiciary by bill of suspension averring that the judge's behaviour showed that justice was not being seen to be done.
Held that it was difficult to see what made the account of the co-accused inherently improbable as opposed to the account which had been given by the complainers for in each case, for example, there was a masked man who had rushed out in order to carry out certain actions but that, taking into account the fact that the sheriff stated that he was testing the evidence and limited the scope and number of the questions, as well as the fact that no jury was present, the sheriff did not cross over the boundary from indicating a provisional view to entering the area of indicating a concluded view on credibility; and billrefused.
Observed that there were risks in a sheriff in summary proceedings indicating in any way by his questions of a witness that he had begun to form a view in regard to credibility and any questions which were put to a witness should be put with clear restraint and also with careful regard to the possible consequences; much might depend on how the case was being conducted before him but any display of disbelief in the witness's evidence should be avoided.
Mrs Jane Prentice or Lowe presented a bill of suspension to the High Court of Justiciary, the terms...
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