Russell v Dickson
| Jurisdiction | Scotland |
| Judgment Date | 14 May 1997 |
| Date | 14 May 1997 |
| Docket Number | No. 36. |
| Court | Court of Session |
SC
Temporary Judge T G Coutts, QC.
Administration of justiceSheriffImmunity from suitSheriff exceeding common law power to adjourn after criminal case in which pursuer was pannel and remanding pursuer in custody for five days unreasonablyPursuer also refused bail unreasonablyWhether subsequent civil action for damages for such actings competentWhether sheriff entitled to absolute protection against such actionWhether actings of sheriff constituted judicial actWhether ultra vires
A pannel appeared for trial on various road traffic offences before a sheriff. During the trial the pannel pled guilty to several offences. The sheriff thereafter adjourned the cause and remanded the pannel in custody in order that inquiries could be made about the conduct of the case. The pannel appealed to the High Court of Justiciary by way of bill of suspension against the sheriff's decision. The High Court held that the sheriff had exceeded his common law power to adjourn and the purpose of that behaviour constituted no legitimate bearing on any of the decisions which the sheriff might require to take. The court also held that the sheriff had acted incompetently in remanding the pannel in custody and that the refusal of bail during the adjournment had constituted an excessive and unreasonable step. In those circumstances, the pannel brought an action of damages against the sheriff for having had to spend days in the prison on remand. The sheriff argued that his actings constituted a judicial act of which he was entitled to absolute immunity from suit. The pursuer argued that the sheriff had actedultra vires and accordingly had lost the protection of judicial immunity.
Held (1) that although the sheriff had been manifestly wrong and had acted unreasonably, it was open to doubt whether he had actedultra vires because the pursuer had been on trial on a bailable offence and there was statutory authority for his being detained in prison, the unreasonableness in the events which occurred in court being the refusal to continue bail and the impropriety being the remand in custody; (2) that it was not satisfactorily explained why the refusal of bail had not been appealed, it being manifestly unreasonable and incompetent and ought to have led to an appeal being instantly successful; (3) that, therefore, the sheriff's conduct had been a judicial act albeit an unwarranted excess of jurisdiction and although a sheriff could lose his immunity in certain circumstances, even in situations which might arise in the course of his sitting on the bench, where, as here, he was dealing with a complaint and with the pursuer as pannel before him, it could not be said that he was not acting as a judge; and case dismissed as being irrelevant.
Observed that it was against all equity and reason that the pursuer should have suffered wrongful imprisonment without any remedy but that remedy did not lie against the judge as the law presently stands even though it was inequitable by present day standards that a man could spend several days in prison unreasonably and improperly without compensation from some quarter being awarded to him.
Harvey v. DyceUNK (1876) 4 R 265 followed.
Richard Mooney Russell brought an action against Robert H Dickson, WS, sheriff at Airdrie, craving damages in respect of wrongful imprisonment as a result of a decision made by the defender to remand the pursuer in custody for a period of five days in Barlinnie prison.
The full facts and circumstances and averments of parties appear sufficiently from the opinion of the Temporary Judge (T G Coutts, QC).
The cause called on procedure roll before the Temporary Judge on parties' preliminary pleas in law.
Cases referred to:
Allardice v. Robertson (1830) 4 W & S 102
Farrell v. Walker (1963) 79 Sh Ct Rep 61
Haggart's Trs v. Lord President HopeUNK (1824) 2 Shaw 125
Hamilton v. AndersonUNK (1856) 18 D 103
Harvey v. DyceUNK (1876) 4 R 265
McC, ReELR [1985] AC 528
McCreadie v. ThomsonENR 1907 SC 1176
McPhee v. Macfarlane's ExorSC 1933 SC 163
Primrose v. WaterstonUNK (1902) 4 F 783
Russell v. WilsonUNK 1994 SLT 660; 1994 SCCR 13
Scott v. StansfieldELR (1868) LR 3 Exch 220
Sirros v. MooreELR [1975] QB 118
Williamson v. Umphray & RobertsonUNK (1890) 17 R 905
Textbooks etc referred to:
Bell, Principles of the Law of Scotland (4th edn)
Bell, Principles of the Law of Scotland (10th edn)
Carey-Miller (DL) 1980 JR 88
Cooper, Defamation (1906), pp 136/137
Fraser, Constitutional Law
Mitchell, Constitutional Law
Renton & Brown, Criminal Procedure (6th edn)
Stair, Institutions of the Law of Scotland (Tercentenary edn) IV I 5
Stair Memorial Encyclopaedia vol 15, para 15 (K McK Norrie)
At advising, on 14 May 1997, the Temporary Judge sustained the second plea in law for the defender and dismissed the action.
TEMPORARY JUDGE (T G Coutts)On 10 February 1993 the pursuer appeared for trial before the defender, a sheriff, charged with various road traffic offences. He was represented by a solicitor. The pursuer had pled not guilty. After changing his plea to guilty of certain of the road traffic offences (careless driving, driving with excess alcohol and failing to stop after an accident) the defender, instead of proceeding to sentence, adjourned the cause and remanded the pursuer in custody in order that inquiries could be made about the whole conduct of the case. As a result the pursuer spent from Wednesday, 10 February 1993 to Monday, 15 February 1993 in Barlinnie Prison. In delivering their opinion upon a bill of suspension brought on behalf of the pursuer seeking to have the sentence quashed the High Court described the defender's behaviour as having been in excess of his common law power to adjourn and the purpose of that behaviour as having no legitimate bearing on any of the decisions which the sheriff might require to take. They went on the whole matter appears to have been based on a misconception by the sheriff about the proper way to proceed, given the suspicion which he entertained. They found that all proceedings after midnight on 10 February 1993 were incompetent. They described the decision of the sheriff to remand the pursuer in custody as unreasonable and categorised his depriving the pursuer of bail during the period of the adjournment as being an excessive and unreasonable step.
Founding upon these events the pursuer brought the present action claiming damages for the loss, injury and damage he suffered as a result of the sheriff's behaviour. The action appeared before me at procedure roll on the defender's first and second pleas-in-law being pleas to the competency of the action and to its relevance. The matters which were before the High Court are reported, 1994 SLT 660 and, more fully [seeRussell v. WilsonUNK 1994 SCCR 13]. In the latter report there is reproduced the sheriff's note which he sent to the High Court which expands upon the somewhat exiguous averments in ans 5. Before this court the position of the pursuer was more broadly stated and expanded from that which it was necessary to the state in the bill of suspension. In particular the pursuer claims that the defender was throughout the course of the trial manifestly in a foul temper for which he believes there was no reason other than vindictiveness towards his solicitor. He instances the defender banging his notebook on the bench, shouting at the solicitor on many occasions, interrupting her and refusing to allow a line of cross examination to be pursued. His conduct, it was averred, was such that after the evidence of the first two Crown witnesses it was plain that he accepted their evidence and that it was pointless for the accused to proceed further with his defence. That defence had been that the accident had not occurred and that he had...
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