Humour in Court

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The Procurator Fiscal, Aberdeen v Thomas Scott Forrester, [2011] HCJAC 71

The respondent, a police chief Inspector, was charged with dangerous driving after allegedly instructing a police constable driving a police car, in which he was travelling to catch a plane, to put the sirens on and move to the wrong side of the road. When the constable did so, a collision occurred between two cars travelling in the opposite direction.

During a delay in proceedings, the sheriff (a judge in Scotland) called the procurator fiscal’s depute and the defence counsel into chambers to inquire as to progress. He was told by the depute that, amongst other witnesses waiting to be called, were the police officers who interviewed the police chief inspector. The sheriff then remarked “Oh that will be the Gestapo!”

The sheriff ultimately found that the interview of the police chief inspector by the investigating officers was unfair and he excluded it as evidence. The Procurator Fiscal appealed to the High Court on the basis that the sheriff’s remarks inferred bias and, his decision to exclude the interview as evidence, disclosed actual bias.

The High Court refused the Appeal. In coming to its conclusion, the High Court referred to Wallace v Thomson (2009):

“Humour is not without its place in the criminal courts. No doubt, when used by a judge or sheriff, it requires to be used sparingly, with caution and not inappropriately. However, a Sheriff may consider that an element of levity might be temporarily introduced for a particular purpose; perhaps to put a nervous witness at his ease or to defuse a moment of unnecessary tension between procurators. No doubt, if the
Court turned a trial into something akin to a comedy, an accused would have grounds of complaint were he to be convicted. Nothing of that kind has occurred in this case. The Sheriff appears to have made one flippant remark intended to be humorous. Perhaps it was; although it seems to have lost something in its translation to the printed page. The suggestion that an informed and reasonable observer would consider that this was an element demonstrating partiality is without foundation".

Similar considerations, held the High Court, applied with regard to the sheriff’s comments in this case. It was “bordering on the ludicrous” to suggest that the sheriff was actually comparing the behaviour of the police officers with that of the Gestapo during the Second World War. On hearing the words used in context,there was no prospect of a fair minded individual concluding that the sheriff was biased against the procurator fiscal and, having regard to the way the sheriff approached the objection to the admissibility of the interview and the reasoning he employed, there was also no prospect that a fair minded individual would form the view that the sheriff was biased when deciding the issue.

Source: Legal Knowledge Scotland.

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