JUDICIAL RECUSALS

 

The role of a judge is to interpret and apply the law without bias or prejudice. Judges have a duty to sit on the cases allocated to them based primarily on their availability, and must deal with them efficiently avoiding unnecessary delay.

Declinature of jurisdiction, or recusal, refers to the act of a judicial office holder abstaining from taking part in legal proceedings due to a conflict of interest; or in cases where their impartiality might reasonably be questioned. Judges can decline to sit; or parties to a case can object to the judge’s involvement by making a motion for declinature. This might involve financial interest or a close family relationship. 

More minor conflicts may be declared before the court. The parties to the case can then either object to the judge’s involvement or proceed based on agreement that the interest is suitably insignificant.

Cases where senators, temporary judges, sheriffs principal, sheriffs, summary sheriffs, justices of the peace, or a member of a Scottish tribunal, grant or refuse a formal motion for recusal, or recuse themselves of their own accord, in open court, are recorded for the current year in the table below.

Previous years have been archived.

 

2024

 

Date JOH & Court/Chamber Case Name/Reference Motion By Refused /Granted Reason
10/04/2024 Sheriff James Varney - Greenock Sheriff Court Barry McLaughlin v Louise Watt Pursuer Refused

The sheriff refused to recuse for the following reasons:

(i) No such active bias was shown

(ii) No hostile treatment was shown

As a consequence, no such breach of human rights or fair trial would occur.

08/03/2024 Lord Malcolm - Court of Session P394/22: Petition of J Halley for Judicial Review Petitioner and Reclaimer (John Halley) Refused The reclaimer moved for Lord Malcolm to recuse himself on the basis he was Vice Dean of Faculty from 1996-1997 and was likely to have knowledge of some material events referred to in this matter. Lord Malcolm refused to recuse himself on the basis that he was aware of nothing from his time as the Vice Dean of Faculty which would require him to withdraw from the bench dealing with this reclaiming motion. 
08/03/2024 Lord Beckett - Court of Session P394/22: Petition of John Halley for JR Petitioner and Reclaimer (John Halley) Refused The reclaimer moved for Lord Beckett to recuse himself on the basis his Lordship had a long professional and personal proximity to the Lord Advocate and her husband Lord Turnbull. Lord Beckett refused to recuse himself on the basis that while he had professionally and personally encountered the Lord Advocate and Lord Turnbull in neither case was that to the extent which would require his recusal in a case of this nature.
08/03/2024 Lord Tyre - Court of Session P394/22: Petition of John Halley for Judicial Review Petitioner and Reclaimer (John Halley) Refused The reclaimer moved for Lord Tyre to recuse himself on the basis his Lordship dealt with an earlier application by the reclaimer for leave to appeal from the EAT and did not engage with the issues of corruption the reclaimer sought to raise; the reclaimer was concerned Lord Tyre would adopt a similar approach in this matter. Lord Tyre refused to recuse himself from this matter, it not being the case that he failed to engage with the issues of corruption that the reclaimer raised in the separate application but rather that the procedural manner in which the reclaimer sought to raise these issues, by application to the nobile officium, was incompetent in the EAT appeal process.  A full explanation of the reasons why it was incompetent was given in that separate process.
12/02/2024 Sheriff Nicola Patrick - Dunoon Sheriff Court PF v Scott Currie Defence Granted Sheriff conducted lengthy criminal case in which the complainer in this criminal case was found not guilty. Sheriff heard evidence from two of the children together with an expert witness in relation to potential coaching and manipulation of the children, and has formed a view in relation to that evidence. In addition submissions were invited in relation to recusal and the Defender was seeking the Sheriff to recuse herself.
12/01/2024 Sheriff Anthony McGlennan - Stranraer Sheriff Court STR-F59-23 Ex proprio motu Granted The Sheriff had presided over a previous action involving a different child in which the current defender had opposed a counterclaim for contact to which he rejected her objections to contact and made an order in favour of that childs father.  Defender made a subsequent judicial complaint regarding Sheriff's conduct during the action, which was investigated and Sheriff was exonerated. The defender's solicitor submitted that his client considered that the Sheriff should recuse himself in light of the aforementioned involvement in her other case and the subsequent complaint on the basis that the perception of partiality may be obtained.
11/01/2024 Sheriff Jillian Martin-Brown - Dundee Sheriff Court Katie McKenzie v Christopher Sinclair Katie McKenzie (Pursuer) Refused The Sheriff refused to recuse for the following reasons: (i) and (iii) As a general rule, a previous finding or previous findings by a judge against a party will rarely, of themselves, provide a ground for disqualification. (ii) [The Sheriff's] husband's relative is neither a witness nor a party to the action. (iv) [The Sheriff] am not listed on the pursuer's list of witnesses.
03/01/2024 Sheriff V Lunny - Glasgow Sheriff Court GLW-F1148-21 Ex proprio motu Granted The Sheriff's son and the daughter of the parties attend the same Primary School.

 

 

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