All we need is “ze fallen Madonna with ze big boobies” and it could be an episode of Allo, Allo. Instead, this is a case concerning an appeal by the Procurator Fiscal of Aberdeen against a sheriff’s decision on the grounds of bias.

The case involved Chief Inspector Thomas Forrester who was charged with dangerous driving[1] after allegedly instructing a constable driving a police car, in which he was travelling to catch a plane, to put the sirens on and move to the wrong side of the road. When the constable did so, a collision occurred between two cars travelling in the opposite direction.

During a delay in proceedings, the sheriff called the procurator fiscal’s depute and the defence counsel into chambers to inquire as to progress and was told by the procurator fiscal’s depute that, amongst other witnesses waiting to be called, were the police officers who interviewed Chief Inspector Forrester. The sheriff then remarked “Oh that will be the Gestapo!”

The sheriff ultimately found that the interview of Chief Inspector Forrester by the investigating officers was unfair and excluded it as evidence. The Procurator Fiscal appealed to the High Court on the basis that the sheriff’s remarks inferred bias and, his decision to exclude the interview as evidence, disclosed actual bias.

The High Court refused the Appeal.  In coming to its conclusion, the High Court referred to Wallace v Thomson (2009):

 “[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”.

Similar considerations, held the High Court, applied with regard to the sheriff’s comments in this case.  It was “bordering on the ludicrous” to suggest that the sheriff was actually comparing the behaviour of the police officers with that of the Gestapo during the Second World War. On hearing the words used in context, there was no prospect of a fair minded individual concluding that the sheriff was biased against the procurator fiscal and, having regard to the way the sheriff approached the objection to the admissibility of the interview and the reasoning he employed, there was also no prospect that a fair minded individual would form the view that the sheriff was biased when deciding the issue.

It was noted (the court’s opinion being delivered by Lord Carloway):

“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..”

With regard to the interview, the issue was whether the sheriff had erred in determining that the Crown had failed to demonstrate that the interview had been fair and that admissions made had been spontaneous and voluntary. The sheriff had rejected evidence of the detective chief superintendent who conducted the interview to the effect that the interviews purpose had been to allow the chief inspector to tell his side of the story. Instead the sheriff concluded, from the manner of the interview and the surrounding circumstances[2], that the true intention had been to prompt the chief inspector into making an admission. On reaching that conclusion the sheriff was bound to sustain the objection to the interview as evidence. Authority for that finding came from Chalmers v HMA (1954) and the words of Lord Justice General (Cooper):

 “It is not the function of the police… to direct their endeavours to obtaining a confession from the suspect to be used as evidence against him at the trial”

 Herr Flick would not have approved.

A full report of the decision is available from Scottish Courts here.