X v Sheriff Jack Brown, SCTS and the Lord Advocate
Feb 8, 2022
The lawyer, identified as X to protect her anonymity, asked the Court of Session to review the decision of a ‘fitness for office’ tribunal investigating the Sheriff’s conduct.
When the Lord President, Scotland's most senior judge, was made aware of a complaint, he had requested that the First Minster constitute a fitness for office tribunal under the Courts Reform (Scotland) Act.
The First Minister had appointed the members of the tribunal to investigate the matter with the Lord Justice Clerk, Scotland’s second most senior judge, as chair. The tribunal had determined that one of the allegations made by X was established on the balance of probabilities. The Sheriff had “made an inappropriate remark about ‘a pretty face’ and hugged someone he had, misguidedly, come to view as a friend” outwith the courtroom.
The Court heard that the police had conducted a parallel inquiry. Two other women, C1 and C2, had provided witness statements claiming that the Sheriff had behaved inappropriately towards them before he had become a sheriff. The police had sent a report, including these statements, to the prosecution service. Prosecutors had decided, upon the evidence, not to proceed with the case.
The investigating officer to the tribunal had concluded that the tribunal’s remit was to consider the complaint made by X and not the allegations made by C1 and C2.
Based on the evidence before it, the tribunal members had concluded that, although the Sheriff had behaved inappropriately, it did not justify his removal from office.
However, there had been discussion around whether the evidence of C1 and C2 should have been made available to the tribunal.
In her Judicial Review at the Court of Session, X argued that the evidence of the other complainers would have been necessary for the tribunal to reach the best and safest solution.
She contended that, while no one had been at fault, the judgment was unfair. The tribunal had reached its decision without being aware of additional allegations which could have impacted the key issues.
The Sheriff argued that the tribunal’s task was to determine X’s allegations. This did not extend to the claims made by C1 and C2. As it had correctly fulfilled its remit, its decision should stand.
The Lord Advocate and the Judicial Office for Scotland, which is a separate part of the SCTS, both entered the proceedings in the public interest, but did not seek a particular ruling.
The presiding judge, Lord Woolman, quashed the tribunal decision and ruled that the issue was now in the hands of the Lord President and the First Minister. He added: “Were it competent for me to decide these matters, I would conclude that the case should be determined by a freshly constituted tribunal”.
The judgment published on the Scottish Courts and Tribunals website is the only authoritative document.
Read the judgment.