TC AGAINST THE AUTHORITY REPORTER [2014] ScotSC 25 (06 June 2014)

JUDGMENT of SHERIFF PRINCIPAL C A L SCOTT, QC in the cause TC Appellant against The Authority Reporter Respondent Glasgow, 3 June 2014. The sheriff principal, having resumed consideration of the appeal, Answers questions 1, 2, 4 and 7 in the stated case in the negative; Answers the remaining questions 3, 5 and 6 in the affirmative; Allows the appeal in respect of grounds 1 to 3; Refuses same quoad ground 4; accordingly, Remits the case to the procedural sheriff to determine further procedure. NOTE :- Appellant’s submissions – grounds 1 to 3 [1] This appeal largely involves consideration as to the nature and effect of rule 3.48 in the Act of Sederunt (Child Care & Maintenance Rules) 1997. That rule is in the following terms: “The sheriff may at any time, on the application of any party or of his own motion, allow amendment of any statement supporting the conditions of the grounds for referral.” [2] In the present instance, as he records at page 27, paragraph [14] in the stated case, the sheriff was invited to make amendments to render the statement of facts consistent with the evidence he had heard. The sheriff acknowledges that he was not invited by any party “to make in terms those amendments” which he did, in fact, make. [3] In the bundle of papers prepared on behalf of the appellant (for the purposes of the appeal) the grounds for referral and associated statement of facts as originally framed by the reporter are to be found at tab 1 whereas the statement of facts following amendments allowed by the sheriff appears at tab 2. At a glance, paragraphs 9 and 10 within the statement of facts appear to have been considerably expanded upon. [4] The sheriff heard proof on 16, 17 and 18 September 2013. On 25 September, the sheriff issued a note setting out his decision. He found the “statements of fact established to the extent that” he had set out in the note and found “the ground of referral established”. In the first paragraph on page 4 of the foregoing note, the sheriff made it plain that he had made additional findings (of fact) where he considered it relevant to do so, particularly in regard to statement of fact 9. He also recorded the fact that he had extended paragraphs (a) and (b) of statement 10 and added a new paragraph (d). [5] At pages 26 to 27, paragraph [14] in the stated case, the sheriff mentions that it was not obvious to him why the power to amend would not extend to adding to the statement of facts. For the avoidance of doubt, I did not understand the appellant’s solicitor to adhere to the argument that the sheriff was necessarily precluded from making such additions. However, she did contend that where material amendment to any statement of fact was envisaged by the sheriff (in terms of rule 3.48 supra ) the parties to the case ought first to be afforded an opportunity to make submissions thereanent. It was submitted that the sheriff’s failure to do so, coupled with the wholesale additions made to statements 9 and 10, was redolent of procedural irregularity. [6] In Sheriff Kearney’s work on Children’s Hearings and the Sheriff Court (2 nd Edn), the learned author made it clear that whilst a sheriff might amend the statement of facts under rule 3.48, he “…should not effect a material amendment without giving parties the opportunity to be heard.” The appellant’s solicitor founded on this authoritative proposition. Moreover, she stressed that during the proof and closing submissions, any approach to the evidence adopted on behalf of the appellant had been informed by the nature and scope of the grounds for referral and statement of facts as specifically formulated for the purposes of that proof. The appellant and her advisors had “joined issue” on the basis of the grounds and statement as they stood. [7] Therefore, it was submitted that, for the sheriff to highlight the fact that “the Appellant neither gave or lead ( sic ) evidence to contradict the evidence led by the reporter”, was neither here nor there in circumstances where, as in all such cases, the factual matrix had been “ring-fenced” within the statement of facts designed to support the grounds for referral. [8] It was maintained that no party in referral proceedings could be expected to anticipate what, if any, adminicles of evidence might, having been processed through the mind of the court, go on to form the basis for amendment of any statement of fact. Without being given prior notice as to the nature and significance of any such adminicles, in the form of factual averment, how could any party be expected to react as if they were relevant and worthy of being addressed? Where judicial case management sought to focus the relevant issues in any given case, for the court ultimately to rely upon material outwith that area of focus would, it was argued, constitute a complete reversal of how things should be approached by all those involved in the case. [9] The precise wording of rule 3.48 was scrutinised in the course of the hearing. As the sheriff has accepted, no party made “application” for him to “allow amendment” in terms of the alterations made by him to the statement of facts. Therefore, the amendment allowed by the sheriff had to have been “…of his own motion”. [10] The appellant’s solicitor submitted that significance attached to the use of the word “motion”. It evoked the requirement for procedure commensurate with that word, to be adopted. In the normal course, where a party with an interest in whether a motion should be granted took the view that it was controversial, that party was entitled to be heard before any decision was arrived at. [11] Accordingly, not only did the appellant found upon procedural irregularity she also maintained through her solicitor that she had not been afforded a fair hearing. The appellant had not been afforded an opportunity to address the sheriff in respect of those amendments to the statement of facts which he had in mind to allow under rule 3.48. Similarly, there was no opportunity to consider whether evidence by way of rebuttal ought to have been led. For all those reasons, the appellant’s solicitor maintained that the sheriff’s approach had been flawed and that his decision could not be allowed to stand. [12] The third ground of appeal embraced the proposition that, for the reasons already described, the appellant’s rights in terms of article 6 of the European Convention of Human Rights had been contravened. The appellant’s solicitor submitted that the arguments supporting the third ground of appeal were substantially similar to those already advanced in respect of ground 2. However, reference was made to various passages from the cases of M v Law Society of Scotland 2013 SLT 462; Hay v HMA 2012 SLT 569 ; and Authority Reporter, Edinburgh v RU 2008 FamLR 70. [13] The appellant’s solicitor stressed that any fair hearing embraced a party’s right to comment upon all of the evidence produced and “…to make observations on that evidence with a view to influencing the fact finding exercise and hence the decision.” That reflected what had been argued successfully in the case of M supra at paragraph [25]. Reference was also made to the case of Hay at paragraph [46]. Reply for reporter – grounds 1 to 3 [14] In response to the first three grounds of appeal, Ms Jack, for the reporter, defended the approach taken by the sheriff. That being so, there was no need for her to formulate and set out a line of argument distinct from what appeared in the substance of the note appended to the stated case. Consequently, the reply to the submissions advanced on behalf of the appellant was relatively concise. [15] Ms Jack submitted that when considering the terms of rule 3.48, it had been open to the sheriff to make the amendments which were now the subject of challenge on appeal. It was suggested that, as a matter of practice, sheriffs had recourse to amendment of statements of facts on a reasonably regular basis. [16] It was argued on behalf of the reporter that the terms of rule 3.48 were straightforward and that they thereby merited uncomplicated application to any given case. Put simply, the rule empowered the sheriff to amend “…any statement supporting the conditions of the grounds for referral.” Ms Jack maintained that “amendment” carried with it clear scope for supplementing any such statement. Moreover, the sheriff was entitled to adopt that sort of approach ex proprio motu . [17] As the sheriff had pointed out in his note, the appellant had been afforded the opportunity to cross-examine witnesses and to give or lead evidence. Therefore, in a very real sense, it could not be said that she had been denied a fair hearing. After all, whatever the sheriff made of it, the nature and extent of the evidence itself remained the same. [18] In the event, as the sheriff mentioned at paragraph [21] in his note, aside from agreeing the terms of a joint minute and eliciting some material via cross-examination, the appellant neither gave nor led evidence to contradict the evidence led on behalf of the reporter. All parties had confirmed that they were content for the sheriff to amend the statement of facts as he saw fit. Decision - grounds 1 to 3 [19] In the course of the debate, the strands of argument which emerged all tended to point to a succinct issue for consideration by the court. That issue might be characterised thus: “Was it fair for the sheriff to incorporate material additions to the statement of facts without the parties (and, in particular, the appellant) being given (a) due notice of the material involved and (b) the opportunity to advance submissions or lead evidence in rebuttal?” [20] It should be noted that neither the sheriff nor any of the parties sought to characterise the amendments as immaterial. Nor is it disputed that the parties “…saw no technical impediment” to amendment taking place ex proprio motu . However, the fact that parties may have been in agreement that amendment of the statement of facts was, in principle, open to the sheriff, does not cure the difficulty thrown up by this appeal. [21] The question is whether those considerations which apply to amendment, for example, in the context of ordinary procedure (see OCR 18.3) ought to apply to or be read into rule 3.48 supra ? I cannot conceive that they should not. In my opinion, rule 3.48 empowers the sheriff to “allow amendment” but it does not permit the court to impose such an amendment without considering the merits of any argument put forward by a contradictor. [22] The fact that allowance of the amendment may be of the court’s own motion does not alter the nature of the duty incumbent upon the court. Indeed, as was argued on behalf of the appellant, the presence of the word “motion” in the context of rule 3.48, to my mind, does carry with it certain procedural connotations in the sense that the sheriff may himself introduce a proposal for consideration by the parties but, in my opinion, such proposal cannot be given effect to in a peremptory manner. [23] It would be wrong to be too critical of the sheriff, however. The course he adopted was well intentioned. In his note he accepts that there may be circumstances “where it might be appropriate to articulate provisional proposals to amend statements of fact to parties to allow them to make submissions on them”. However, in the particular circumstances of this case, he did not consider that to be necessary (see paragraph [23]). I disagree. [24] The factual matrix underpinning the proposition that the grounds of referral ought to be held established was set out in the document headed up “Updated Grounds for Referral dated the 28 August 2013.” (Tab 1 in bundle). The inquiry designed to establish those facts was conducted by the appellant’s solicitor with those factual contentions in mind. If evidence was led without objection or was not challenged, any such approach to the conduct of the hearing was informed by the grounds for referral as allegedly supported by a statement of facts wherein all and any material said to be prejudicial to, for instance, the appellant’s case, was specified. [25] Were further or better material (of that nature) known to exist prior to the commencement of the hearing, fairness would have dictated that such material should also be mentioned in the statement of facts to enable the appellant’s solicitor to take proper instructions and to determine how to manage the questioning of witnesses etc. [26] Evidence having been led and concluded, the sheriff determined that: “The statements of fact as they stood when I continued the hearing, did not always capture what I felt could reasonably be made of the evidence.” That determination was arrived at after closing submissions. There is no suggestion that the sheriff provided parties with any insight into what it was about the (then) existing statement of facts that resulted in a failure to capture what the sheriff felt “…could reasonably be made of the evidence”. [27] In so far as the sheriff’s mind was already heading in that particular direction, in the course of closing submissions at least, the appellant, for one, remained “in the dark” as to the nature and extent of any amendment which the sheriff had in mind. [28] It is also accepted by the sheriff that he was not invited by any party to make in terms those amendments which he made. Of course, with the passing of closing submissions, the parties remained uninformed as to the allowance of any proposed amendment and, in any event, absent fresh procedural intervention, any potential for parties to challenge the basis for the amendment had evaporated. [29] Whilst the facts of the RU case are slightly different, I have nevertheless arrived at a similar conclusion to that reached by Sheriff Principal Bowen. On recognising that the amendment he envisaged might materially alter the statement of facts, at that stage, the sheriff ought to have ventilated provisional proposals by way of amendment to allow parties to make submissions in regard to those proposals or to suggest that further procedure should follow. In my opinion, the sheriff’s failure to take such a course constituted an infringement of the appellant’s right to a fair hearing and a breach of article 6 of the Convention. The appeal falls to be allowed under grounds 1 - 3. [30] The sheriff was entitled to make whatever findings in fact he considered were justified on the evidence heard and accepted by him. However, where, as in this case, he sought to reflect his factual findings in a reconfiguration and expansion of substantial portions of the statement of facts, he ought to have been alert to the significance attaching to such a discrete procedural step. Where amendment of the statement of facts might, in effect, result in a case being established which the appellant or any other parties had not been called upon to meet (as per the original grounds/statement of facts), at the very least, the sheriff ought to have afforded parties an opportunity to be heard on whether, on the evidence led and in the interests of justice, the proposed amendment should be given effect to. [31] As was observed by Sheriff Principal Bowen at paragraph [17] in the RU case, the right to be heard is absolute when it comes to human rights jurisprudence and it is unnecessary for a party to demonstrate prejudice in order to establish a breach of article 6. The submissions presented on behalf of the appellant in the present case were not concerned with what her position might, for instance, have been had she been afforded an opportunity to be heard in respect of the amendments proposed by the sheriff. That was not required for the purposes of her argument nor did Ms Jack suggest that it was an essential feature. Ground of appeal 4 [32] This ground of appeal was couched in the following terms: “Without having identified any unnecessary suffering or serious impairment in the child’s health or development due to a lack of parental care in the past, or identifying the nature of the impairment to health or development and whether it would be serious, as a consequence of lack of parental care in the future, was the Sheriff entitled to hold as established the Ground of Referral?” The appellant’s solicitor accepted that the sheriff had correctly identified the applicable law but submitted that he had erred in its application to the facts. Reference was made to the cases of M v McGregor 1982 SLT 41; D v Kelly 1995 SC 414; H v Harkness 1998 SC 287; and M v McClafferty 2008 FamLR 22 . It was contended that there required to be material flowing from the evidence from which it could be demonstrated that there had been identifiable and unnecessary suffering. It was not open to the sheriff to speculate. [33] In reply, Ms Jack for the reporter submitted that the sheriff had correctly applied the law to the facts of the case as established. She argued that from paragraph [28] onwards in the sheriff’s note it was plain that the sheriff had correctly addressed the relevant issues thrown up by the authorities. Ms Jack submitted that the appeal should be refused in regard to ground 4. [34] Given my decision in respect of grounds 1 to 3, the court’s decision in relation to ground of appeal 4 is, perhaps, academic. Nevertheless, having considered the sheriff’s detailed explanation as to the approach taken by him on the facts of the case I am not satisfied that he erred in any way and, in particular, in the manner suggested in ground of appeal 4. There is, in my opinion, much force in what the sheriff had to say at paragraph [30] onwards within his note. When it comes to the welfare of children, issues surrounding lack of parental care and impairment to health or development cannot be weighed too finely in the balance. In my view, the sheriff’s approach in this regard was beyond criticism. [35] A series of seven questions were posed by the sheriff in his stated case. Those questions are set out at pages 35 and 36. When looking to the appeal as a whole, it may be that those questions are not couched in ideal terms. However, by answering those questions along the lines set out in the foregoing interlocutor, I am satisfied that I have given effect to my decision to allow the appeal under reference to grounds 1 to 3 and to refuse it when it comes to ground 4. [36] For the sake of clarity, I have answered the first question in the negative on the footing that to the extent that he did so the sheriff was not entitled to reconfigure and add to the statement of facts where the appellant had not been afforded an opportunity to be heard. With regard to the second question, a negative answer is appropriate. Patently, the appellant was not denied the opportunity “to lead evidence in rebuttal of the evidence led by the Reporter”. However, the issue with which this appeal is primarily concerned did not arise during the proof. It only arose after the close of submissions. The answers to questions 3, 4 and 5 are consistent with the views expressed herein, subject to the caveat that I am doubtful as to whether the hypothesis introduced at the beginning of each of answers 4 and 5 actually serves a useful purpose. [37] My fundamental conclusion is that the sheriff was not entitled to make material additions to the statement of facts without affording the appellant an opportunity to be heard. That omission, in itself, amounted to a contravention of article 6 of the Convention. Given that I have refused the appeal under ground 4, question 6, taken in isolation, falls to be answered in the affirmative. Question 7 falls to be answered in the negative since, in light of my decision, the sheriff was not entitled to find the grounds for referral established, as he purported to do so having regard to the significantly amended statement of facts. [38] The appellant’s solicitor submitted that there would require to be a re‑hearing of the case before a different sheriff. In principle, having allowed the appeal, I agree with that submission. I share the view expressed by Sheriff Principal Bowen in the RU Case. Whatever the benefits in terms of expedition, I do not necessarily consider that to remit the case back to the same sheriff for the purpose of hearing further submissions/evidence would be commensurate with the concept of a “fair” hearing. However, in the first instance, I have remitted the case back to one of the procedural sheriffs to hear parties’ submissions as to the precise nature of further procedure and, thereafter, to determine what procedure ought to flow from my decision in the appeal. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII