The Procurator Fiscal Aberdeen v. Sean Douglas Pirie [2011] HCJAC 43

Crown Appeal under section 174 of the criminal Procedure (Scotland) Act 1995:- The respondent appeared on summary complaint that contained a charge of careless or inconsiderate driving contrary to section 3 of the Road Traffic Act 1988 at the instance of the appellant and was prosecuted in Aberdeen Justice of the Peace Court. The charge was brought following a report to the police by a Justice of the Peace who sits regularly in that court and was a principal Crown witnesses. Due to that, special arrangements were made for the trial, in that a Justice who normally sits in Banff was to travel to Aberdeen to hear the trial and it was arranged that a legal adviser who normally works in Inverness would fulfill the role of legal advisor during the trial. The respondent's agent moved to be allowed to lodge a devolution minute which was received and upheld resulting in the acquittal of the respondent. The Crown sought leave to appeal the decision which was granted. The devolution minute made reference to Articles 6 and 8 of the European Convention on Human Rights and Fundamental Freedoms, and was in the following terms:- "That the Crown in full knowledge that the principal witness for the Crown presides as a Justice of the Peace on a regular basis within the Justice of the Peace Court in Aberdeen, chose to prosecute this case in the Justice of the Peace Court in Aberdeen. The representations were made to the Crown on behalf of the Minuter that this matter should be deserted and re-raised in the Sheriff Court as a more appropriate forum. The Crown delayed or refused to consider this proposal and have insisted that the matter proceed in the Justice of the Peace Court in Aberdeen therefore the action of the Crown, in attempting to prosecute this matter in the Justice of the Peace Court in Aberdeen infringes the Minuter's right to a fair Trial." In his report the presiding Justice set out the test which he applied, namely, whether he was satisfied that the particular circumstances of the case might reasonably raise in the mind of an informed and impartial observer a doubt as to the impartiality of the court. Here it was agreed that the justice had applied the correct test, however, it was submitted on behalf of the Crown that the determination was an error in law, both in the application of the appropriate test to the circumstances and also in respect of its potential application to any Justice from any part of the Sheriffdom of Highlands, Islands and Grampian because if the Justice's views were correct they could be said to apply to a Justice from Stornoway or Shetland. It was further submitted on behalf of the Crown that if there was justification for the view the Justice took of his involvement in the case, his decision should have been confined to himself and he should have recused himself, and the respondent should not have been acquitted. Here the court considered whether, having regard to the particular circumstances of the case, there was a basis on which a reasonable member of the public, who was neither complacent nor unduly sensitive or suspicious, would conclude that there was a real possibility of the presiding Justice failing to act impartially.