Bench Technology and Procedural Fairness: UV v Locality Reporter Manager & WX
([2025] CSIH 19) — A New Touchstone on Judicial In-Court Use of Electronic Devices

1. Introduction

The Inner House of the Scottish Court of Session, Second Division, in UV against The Locality Reporter Manager of the Scottish Children’s Reporter Administration and WX has delivered what is likely to become the leading Scottish authority on two related questions:

• When does alleged judicial distraction amount to a “procedural irregularity” under s 163(9)(b) of the Children’s Hearings (Scotland) Act 2011 (the 2011 Act)?
• To what extent may a fact-finding judge use electronic devices or handle administrative matters while a witness is giving evidence without breaching the common-law duty of fairness (and the Article 6 ECHR equivalent)?

The appellant father, UV, appealed a sheriff’s decision that sexual-abuse grounds of referral were established in respect of his daughter, YZ. His sole remaining ground was that the sheriff failed to give her full attention—specifically, she read and replied to messages on her mobile phone—and therefore the hearing was unfair.

2. Summary of the Judgment

The Inner House (Lord Justice Clerk Beckett delivering the opinion with Lords Malcolm and Lady Wise concurring) unanimously refused the appeal. Key points are:

• Section 163(9)(b) requires an appellant to show a procedural irregularity “damaging to the justice of the proceedings”. Mere shortcomings are insufficient.
• Brief, purposeful use of a mobile phone to deal with urgent court programming during a pause (“hiatus”) in cross-examination did not prevent the sheriff from absorbing the evidence.
• The Court distinguished between a judge who falls asleep (or is intoxicated) and one who remains awake but multitasks; the former inevitably undermines fairness, the latter does not necessarily do so.
• The correct approach is a holistic, objective assessment of the entire proceedings. Even if the Porter/Helow “fair-minded observer” test is employed, that observer must be “sufficiently informed” of modern judicial practice.
• On the facts, the sheriff’s detailed findings, grasp of inconsistencies, and reasoned evaluation showed she had in fact engaged fully with the evidence.

3. Analysis

3.1 Precedents Cited and Their Influence

• Stansbury v Datapulse plc [2004] ICR 523 – Establishes that a tribunal member sleeping or appearing intoxicated can vitiate fairness. The Court of Session analysed Stansbury closely and limited its reach to situations of genuine inattention, distinguishing it from mere multitasking.
• Porter v Magill [2002] 2 AC 357 and Helow v SSHD 2009 SC (HL) 1 – Tests for apparent bias. The Inner House accepted their relevance but emphasised that the “reasonable observer” must appreciate normal judicial working methods.
• C v Miller 2003 SLT 1379; JS v Children’s Reporter 2017 SC 31 – Clarify that not every irregularity merits reversal; it must be “damaging to the justice of the proceedings”. Adopted directly for s 163 appeals.
• CD v ND [2025] CSIH 12 – Recent authority that a judge’s interventions, even if occasionally inappropriate, do not necessarily render a proof unfair. Provided the template for the Inner House’s “careful scrutiny” approach.
• Frew v Brown 1996 SLT 282 and Bradford v McLeod 1986 SLT 244 – Examples where sleeping on the bench or apparent bias defeated convictions; contrasted to show the higher threshold here.
• Al-Megrahi v HM Advocate (No 3) 2021 SLT 73; JB v Authority Reporter (26 Mar 2014, unrep.) – Cited for the principle that evidential inconsistencies must be viewed in the context of the whole proof.

3.2 Legal Reasoning

1. Statutory Hook – s 163(9)(b)
   The Court reaffirmed that “procedural irregularity” is not an automatic ground of success; the appellant must prove material unfairness. This meshes domestic law with the Article 6 fair-trial guarantee.
2. Two-Stage Fairness Analysis
   a) Objective judicial assessment – The court itself reviews the entire process.
   b) Appearance-based review – If one prefers the apparent-bias analogy, the fair-minded observer must be “sufficiently informed” of courtroom realities (use of laptops, liaison with court staff, etc.).
3. Distinction Between Distraction and Inattention
   The Court drew a firm line between temporary multitasking (with retained awareness) and lapses such as sleeping or alcohol impairment, which fundamentally negate attention.
4. Evidential Grounding
   The Inner House relied heavily on: (i) the sheriff’s minute-by-minute narrative; (ii) transcripts showing her grasp of cross-examination; (iii) her comprehensive written findings; and (iv) lack of specific prejudice identified by counsel despite full opportunity in submissions.

3.3 Likely Impact

• Judicial Practice: Confirms Scottish judges may continue to use laptops, phones or pass notes during lulls, provided they remain engaged and proceedings remain intelligible. Sheriffs, however, are warned to signal pauses or adjourn briefly to avoid misperception.
• Procedural Challenges: Raises the bar for success when alleging unfairness based on judicial conduct. Future appellants must pinpoint tangible prejudice, not mere optics.
• Children’s Referral Proofs: Re-emphasises the court’s reluctance to upset first-instance credibility findings in sensitive child-protection cases absent compelling procedural failure.
• Technology & Bench Management: The opinion provides a blueprint for acceptable on-bench technology usage, likely to influence guidance notes for the Scottish Courts and Tribunals Service and judicial training.

4. Complex Concepts Simplified

• Children’s Hearings (Scotland) Act 2011, s 67(2)(b) – Allows a Children’s Reporter to refer a child to a hearing if they believe a “Schedule 1 offence” (sexual offences against children) has been committed against the child.
• Section 163 appeal – A party to a referral proof may appeal to the Court of Session on grounds such as a legal error or “procedural irregularity”.
• “Grounds of referral established” – Finding that the alleged facts (here, sexual offences) are proved on the balance of probabilities, enabling compulsory measures for the child.
• Joint Investigative Interview (JII) – A video-recorded police/social-work interview conducted under national guidelines to capture a child’s account.
• Apparent bias vs. procedural unfairness – Apparent bias taints the tribunal itself; procedural unfairness focuses on the process. UV clarifies that distraction allegations fall into the latter category.

5. Conclusion

UV v Locality Reporter Manager sets a modern, pragmatic benchmark: judges may, in controlled and minimal fashion, attend to essential administrative communications on electronic devices without fatally compromising the fairness of ongoing testimony. The decision narrows the path for challenges based on perceived inattentiveness, insisting on demonstrable prejudice and contextual evaluation of the whole proof. It simultaneously cautions the judiciary to manage perceptions—brief adjournments or explicit pauses remain best practice.

More broadly, the ruling strengthens confidence in the Children’s Hearings system by resisting attempts to overturn carefully reasoned first-instance findings on slender procedural grounds, while reaffirming that genuine lapses such as sleeping, alcohol impairment, or protracted distraction will still invalidate proceedings.