UV against The Locality Reporter Manager of the Scottish Children's Reporter Administration and WX (Court of Session)

Factual and Procedural Background

This appeal arises under the Children's Hearings (Scotland) Act 2011 section 163, brought by the Appellant (father) challenging a sheriff's decision to find grounds for referral under section 67(2)(b) concerning his daughter. The Appellant contended that the sheriff failed to pay attention during parts of cross-examination of a key witness, constituting procedural irregularity and unfairness at common law. The child's mother supported the appeal but did not appeal herself. The Locality Reporter Manager opposed the appeal.

The background facts include allegations that the Appellant committed sexual offences against the child at the family home prior to May 2023, when the child disclosed the abuse to her great-grandmother, the first witness. The proof proceeded over eight days, with multiple witnesses including the reporter’s eight witnesses, the Appellant’s three witnesses, and a safeguarder’s witness. The Appellant did not give evidence.

On the first day of proof, the sheriff court experienced IT difficulties preventing electronic access to documents. The sheriff proceeded using paper documents and had a mobile phone on the bench to communicate with court staff. The Appellant’s counsel cross-examined the first witness, the child’s great-grandmother, over two days, focusing on inconsistencies in her statements. Concerns arose about the sheriff’s attentiveness during cross-examination, particularly on the first day.

Legal Issues Presented

1. Whether the sheriff’s conduct in failing to give full attention during cross-examination of a key witness and failing to record significant parts of the evidence rendered the proceedings unfair to the Appellant at common law.

Arguments of the Parties

Appellant's Arguments

• The sheriff’s conduct amounted to a procedural irregularity under section 163(9)(b) of the 2011 Act.
• A fact-finding judge must devote full attention to all evidence and be seen to do so for a fair hearing.
• The sheriff’s use of a mobile phone during cross-examination without pausing proceedings vitiated the fairness of the hearing.
• The Court should apply the test for apparent bias by analogy, considering whether a fair-minded and informed observer would reasonably apprehend that the fairness of proceedings was compromised.
• Public confidence in the administration of justice requires that justice must not only be done but also be seen to be done.
• Reference was made to the Court of Appeal decision in Stansbury v Datapulse plc [2004] ICR 523 and other authorities addressing fairness and apparent bias.
• The appellant sought to have the appeal allowed and the case remitted for rehearing before a different sheriff.

First Respondent's Arguments (Locality Reporter Manager)

• Neither reporter observed the sheriff using her phone or being inattentive.
• The sheriff’s interventions were appropriate and correct in context.
• The sheriff agreed to record proceedings after concerns were raised, and counsel had opportunity to identify any material missed.
• The Appellant did not specify what evidence was missed or how fairness was compromised.
• Procedural irregularity must be damaging to the justice of proceedings; the hearing was fair overall.
• The sheriff demonstrated a clear understanding of evidence and law in her detailed findings and reasoning.
• The matter is for objective judicial assessment, and the conduct did not render the hearing unfair.

Second Respondent's Arguments

• The decision was highly significant with profound implications, requiring close attention to evidence including demeanour and intangible impressions.
• It is axiomatic that a sheriff must hear all evidence; any lapse undermines justice being seen to be done.
• The sheriff’s use of the phone during evidence raised suspicion of inattention.
• The harm done on the first day could not be cured by subsequent cross-examination.
• The alleged inattentiveness was serious enough to render the hearing unfair and require remittal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Stansbury v Datapulse plc [2004] ICR 523	Test for apparent bias and fair hearing; a tribunal member must be alert and attentive.	The court considered the analogy with apparent bias to assess whether the sheriff’s conduct caused unfairness or reasonable apprehension of unfairness.
Porter v Magill [2002] 2 AC 357	Fair-minded and informed observer test for apparent bias.	Guided the court’s approach to whether the sheriff’s conduct created a reasonable apprehension of unfairness.
Helow v Secretary of State for the Home Department 2009 SC (HL) 1	Fair-minded and informed observer must consider context and not rush to judgment.	Applied to caution in evaluating alleged procedural irregularity affecting fairness.
Lawal v Northern Spirit Ltd [2003] ICR 856	Public confidence in administration of justice requires fairness and appearance of fairness.	Supported the importance of justice being seen to be done.
Chief Constable of Lothian and Borders v Lothian and Borders Police Board 2005 SLT 315	Caution in accepting reasons provided after challenge is intimated.	Considered but found to have little traction in this case.
C v Miller 2003 SLT 1379	Procedural irregularity must damage justice of proceedings to succeed on appeal.	Informed the court’s assessment that mere use of phone or appearance of inattention is insufficient without damaging effect.
JS v Children's Reporter 2017 SC 31	Fairness must be assessed by considering all aspects of proceedings as a whole.	Supported the court’s holistic assessment of fairness.
CD v ND [2025] CSIH 12	Objective judicial assessment of fairness rather than relying solely on apparent bias test.	Applied to assess whether sheriff’s conduct rendered proceedings unfair.
In Re B (A Child) (Care Proceedings: the Threshold Criteria) [2013] 1 WLR 1911	Importance of considering demeanour and intangible impressions in referral hearings.	Emphasized the sheriff’s role in evaluating witness evidence holistically.
Frew v Brown 1996 SLT 282	Justice must be seen to be done; a judge falling asleep during evidence vitiates proceedings.	Distinguished from this case where sheriff remained awake but was alleged briefly inattentive.
Bradford v McLeod 1986 SLT 244	Natural justice requires justice to be seen to be done; apparent bias grounds.	Supported principle that fairness includes appearance of fairness.
Morrison v PF Paisley (unreported, 1994)	Judge’s transitory distraction did not give rise to reasonable suspicion of prejudgment or inattention.	Distinguished from the present case on facts.
Al-Megrahi v HM Advocate (No 3) 2021 SLT 73	Evidence must be assessed in context; isolated inconsistencies may not undermine credibility.	Supported court’s approach to evaluating witness evidence comprehensively.
JB v Authority Reporter (unreported, 2014)	Individual pieces of evidence in abuse cases must be weighed in context of entire evidence.	Used to illustrate proper approach to evidence evaluation in referral hearings.
Schatschaschwili v Germany (2016) 63 EHRR 14	Fair hearing assessed by looking at proceedings as a whole including evidence and rights of all parties.	Applied to reinforce holistic assessment of fairness.

Court's Reasoning and Analysis

The court carefully examined the circumstances surrounding the sheriff’s attentiveness during cross-examination of a key witness on the first day of the proof, particularly the sheriff’s use of a mobile phone to receive and send messages about court programming without pausing proceedings. The court acknowledged the IT difficulties which deprived the sheriff of normal electronic communication means, explaining why the mobile phone was on the bench.

The court recognized that while it might have been preferable for the sheriff to pause proceedings to attend to messages, the sheriff’s conduct did not amount to a failure to hear or give full attention to the evidence. The sheriff’s interactions with counsel in chambers and subsequent decision to record the remainder of the evidence demonstrated responsiveness to concerns.

Applying the test for procedural irregularity under section 163(9)(b) of the 2011 Act and principles from apparent bias jurisprudence, the court assessed whether the sheriff’s conduct caused unfairness or a reasonable apprehension of unfairness. It contrasted this case with Stansbury, where a tribunal member’s intoxication and falling asleep rendered the hearing unfair.

The court emphasized that judges may perform other functions during evidence so long as they maintain focus on the case and absorb the evidence. It acknowledged that judges often use technology and may engage in note-taking or administrative communications during pauses or gaps in evidence without compromising fairness.

The court found the sheriff had a clear understanding of the evidence and law, made detailed findings, and properly evaluated the evidence in context. The concerns raised by counsel did not demonstrate that the sheriff failed to absorb material evidence or that justice was not seen to be done.

Overall, the court concluded that the alleged procedural irregularity did not damage the justice of the proceedings and the hearing was fair when viewed as a whole. The sheriff’s conduct, while perhaps discourteous, did not render the proceedings unfair or undermine public confidence in the administration of justice.

Holding and Implications

The court REFUSED the appeal.

The direct effect is that the sheriff’s decision to find grounds for referral established remains upheld. The court found no procedural irregularity sufficient to vitiate the hearing or require a rehearing. No new legal precedent was established beyond affirming the application of existing principles regarding procedural fairness, judicial attentiveness, and use of technology during court proceedings.