It is well established and acknowledged that judges should remain independent from certain areas, such as political affiliation and relationship with the parties before them. However, in some cases, this autonomy is put in jeopardy, and these cases must be scrutinised. In this essay, it will be necessary to examine three different situations- those of Ranter, Singh and Twitcher. After analysis of their circumstances one must then consider the grounds which could justify their dismissal and also the mechanisms which would be employed if removal from office is justified.
Firstly, the case of Ranter must be studied. Ranter is a full time sheriff who writes a weekly column for The Scotsman, a quality broadsheet newspaper. After the imposition of significant sentences on football hooligans, controversy develops over his extra-judicial journalism and it emerges that he had expressed views on the seriousness of football violence in his column three months before. In this situation, the suspension of the sentences and convictions of the alleged football hooligans would be a likely outcome. My view is backed up by the case of Bradford v McLeod1.
In this situation, a sheriff, while attending a social function in Ayr, made remarks to the extent that he "would not grant legal aid to miners". Subsequently, fourteen miners who had appeared before the sheriff sought to have their convictions overturned. Their appeal at the High Court was successful, and it was held that there had been a miscarriage of justice. Therefore, it is in my opinion that this situation would once again transpire in the case of Ranter, due to his views he expressed in the Scotsman regarding the parties who would in future appear before him.
Furthermore, Ranter has been asked and has agreed to join a Liberal Democrat working party on penal policy. In this situation, it is my submission that Ranter would be obliged to resign from the working party. Members of the judiciary are perfectly entitled to take part in commissions and working parties. However, when these enquiries are to do with the preparation of party policies, such as Ranter's Liberal Democrat group, the situation is different.
Political parties are not entitled to ask judges to assist them in the preparation of their policies2, and it is on these grounds that Ranter would be obliged to step down. In the unlikely situation of Ranter refusing to step down, one can refer to statute in order to decipher what mechanisms would be available for his removal. The Sheriff Courts (Scotland) Act of 1971 deals with the removal of sheriffs from office. It states that the Lord President of the Court of Session and the Lord Justice Clerk, either of their own accord of under request by the Secretary of State, undertake an investigation of the sheriff.
On completion, a report of this investigation is forwarded to the Secretary of State, which either proposes that the sheriff remains in office or is removed. If the sheriff is deemed unfit for office, then the Secretary of State makes an order that the sheriff be removed, which is then implemented by statutory instrument. The next situation involves Singh, a judge of the High Court of Justiciary. He is currently sitting in a cease where charges have been brought against youths accused of random attacks on Indians in Glasburgh.
He himself is of Indian origin, and also during the trial he realises that the victim of one attack is the son of his next-door neighbour. In this situation, it is my submission that Singh could be dismissed from presiding over the case of these attacks. It could be construed that even if there is no actual bias, a reasonable impression of bias could be in existence. This question was asked in the case of Metropolitan Properties Corporation v Lannon3, where it was presumed that the "supposition of bias would inevitably rise" even if none existed.
Therefore, it is my opinion that Singh could be dismissed from this case, due to the ties of a social and personal nature that link him to one of the parties. These would indubitably be enough to create reasonable grounds for dismissal. As for the removal of Singh from his office should the situation get out of hand, it would be much more difficult than with Ranter. He is a judge of the High Court of Justiciary, and therefore his removal from office is subject to a series of stringent measures.
Firstly, a tribunal must be established in order to scrutinise his conduct. This tribunal must be established by a resolution of the Scottish Parliament. During the deliberation of this tribunal, the judge in question may be suspended, although this is not a compulsory state of affairs. One compulsory rule, however, is that the chair of the tribunal must be eligible to sit as a member of the Judicial Committee of the Privy Council, with the other members not expressly required to have held judicial office.
The tribunal may decide either that the judge in question ids fit for office, in which case he would be exonerated of any wrongdoing, or that he is unfit for office. If the latter option arises, and the judge is "unfit for office by reason of inability, neglect of duty or misbehaviour"4 then the First Minister may then make a motion in parliament requesting the judge's removal from office. Subsequently, and only if the motion is passed, the First Minister may then recommend to the head of state that the judge be removed.
The last case in this trio of judicial quandaries involves Twitcher, who is the Lord Justice Clerk. In this instance, Twitcher is sitting on a case raised by the Royal Society for the Protection of Birds (RSPB). However, he neglects to divulge that his wife is the current president of the RSPB. Undoubtedly, Twitcher would have to be dismissed from this case, and for a number of reasons. Firstly, the very fact that his wife is president of one of the litigants in the case means that close ties exist connecting Twitcher to the pursuers, the RSPB.
This situation can be seen in the aforementioned case of Metropolitan Properties Co v Lannon. 5 Furthermore, because of these ties, Twitcher may be construed as to having a pecuniary interest in the outcome of the case. An example of this type of financial situation can be seen the case of Dimes v Proprietors of the Grand Junction Canal. 6 In this case, it was held that due to the financial interest that Lord Cottenham, the then Lord Chancellor had in the pursuers, he was unfit to preside on the case.
In his famous dictum, Lord Campbell states that " the maxim that no man is to be a judge in his own cause should be held sacred". 7 And it is due to failing to uphold that maxim that Lord Cottenham was dismissed. It is my submission that this case would be followed in the dismissal of Twitcher. However, although the grounds for Twitcher's dismissal are clear cut, the mechanisms that would be involved should he require removal are somewhat more complex. Due to the fact that he is the Lord Justice Clerk his removal is infinitely harder that that of Ranter, though very similar to those of Singh.
As with Singh, a tribunal must be established in order to examine his behaviour. A motion of the Scottish Parliament must establish this tribunal, and for the duration of the deliberation of this tribunal, the judge in question may be suspended, although this is not an obligatory situation. One essential rule, conversely, is that the chair of the tribunal must be entitled to sit as a member of the Judicial Committee of the Privy Council, with the other members not explicitly obliged to have held judicial office.
The tribunal may choose either that the judge in the matter is fit for office, in which case he would be cleared of any misconduct, or that he is unfit for office. If the second alternative crops up, and the judge is "unfit for office by reason of inability, neglect of duty or misbehaviour"8 then the First Minister may then make a motion in parliament appealing for the judge's dismissal from office. In this situation, as Twitcher id the Lord Justice Clerk, it would be necessary that the First Minister had consulted the Prime Minister prior to commendation to the sovereign that the judge be removed.
In conclusion, it seems that in all three cases, Ranter, Singh and Twitcher, there are reasonable grounds for their removal from their respective cases or committees. However, as one progresses through the judicial ranks, i. e. sheriff, judge and Lord Justice Clerk, the mechanisms for their ultimate removal from office become much more complicated.
The Politics of the Judiciary: Griffiths. Constitutional Texts: Brazier. Studies in Constitutional Law: Munro. The Scottish Legal System: Walker. The Legal System of Scotland: Paterson, Bates and Poustie.