Pressure to reopen Scottish judicial tribunal after complainant not given 'fair crack of the whip'

Scotland’s most senior judge is under pressure to order fresh disciplinary proceedings against a sheriff who was accused of sexual harassment.

The calls come amid criticism the first judicial fitness for office tribunal was declared unlawful by a judge who said the complainant did not receive a “fair crack of the whip”.

The original tribunal against Sheriff Jack Brown ruled his conduct towards ‘X’, who cannot be named for legal reasons, was “entirely inappropriate”, but did not mean he should be removed from his position as a sheriff.

Lord Carloway

However, ‘X’ said there was evidence from two other women with similar claims who should be heard, and judge Lord Woolman concluded the tribunal had proceeded in “ignorance of the availability of other evidence”, ruling the result unlawful.

The Lord President, Lord Carloway, who has the ultimate power to order a new tribunal that would be then approved by First Minister Nicola Sturgeon, is now under pressure to do so after stating he was “considering next steps” following the judgement.

Scottish Conservative community safety spokesperson Russell Findlay said it was a matter of public confidence in the judiciary that a new tribunal was ordered.

He said: “It seems incredible that Scotland’s first ever judicial fitness for office tribunal was so poorly executed that it ignored key evidence and has now been declared unlawful.

“For the sake of public confidence and in the interests of the complainer, I expect the Lord President would be keen to put this right and seek the First Minister’s consent for new proceedings.”

In his written judgement, Lord Woolman said: “Were it competent for me to decide these matters I would conclude that the case should be determined by a freshly constituted tribunal.

"That avoids any risk of perceived unfairness or damage to public confidence.”

A fitness for judicial office tribunal can only be started if, after a complaint is made about a judge or a sheriff and the complaint is investigated, the Lord President believes there is a case to answer.

At this point, he asks the First Minister to constitute a tribunal, with the First Minister also appointing the members of the tribunal, usually following recommendations from the Lord President.

The tribunal then reports to the Scottish Parliament.

A Scottish Government spokesperson said: “We note the outcome of the tribunal. However, it is inappropriate for the Scottish Government to comment at this stage.”

During the judicial review of the original tribunal’s decision, ‘X’s legal team said there was a “real possibility” the ruling would have been different had the evidence from the two other women been made available to the tribunal.

However, Sheriff Brown’s legal team argued the judicial review was simply an attempt for a re-run of the tribunal in the hope of getting a different outcome.

Lord Woolman concluded there was a “real possibility” the other evidence could have made an impact.

He said: “As all judges are aware, dynamics shift during the course of a hearing. Sometimes that shift can be subtle. Sometimes it can be profound.

“There is a real possibility that the allegations of C1 and C2 [the two women] might have altered the decision on the merits.”

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