NM v Children’s Reporter and IM 

http://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2017-sac-(civ)-037.pdf?sfvrsn=0 (Sheriff Appeal Court [2017] SAC (Civ) 37 13 December 2017)

Background: The appellant NM married LM in 1997. They have three children, FM, IM and EM. FM and IM had made a number of allegations of sexual abuse against, among other people, the appellant. In respect of IM and EM, the children’s reporter arranged for a children’s hearing the basis of those allegations which, if established, would fall within the grounds contained within section 67(2)(b) and (g) of the 2011 Act. NM and LM rejected the supporting facts so the reporter applied to the sheriff to determine whether grounds were established.  

Just as she had made clear was her intention early on in the proceedings, the children's reporter brought evidence from IM by way of three visually recorded joint investigative interviews (JIIs) and did not call her as a witness. In the first JII, IM made allegations which she then retracted in the third JII. LM planned to call IM as a witness in court, whereas it appears NM did not. IM did not want to attend court so only the hearsay evidence from the JIIs was heard. No party objected to IM not appearing. The sheriff was given no reason by any party to identify that IM's absence posed a fundamental obstacle to fair procedure or fair assessment of evidence. 

After the evidence had concluded NM argued that the sheriff should have no regard to IM's evidence on the ground it was unfair. This is the subject of his appeal. 

The sheriff found that the appellant had committed certain sexual offences against FM and IM and that the ground contained within section 67(2)(b) of the 2011 Act had been established. S6 7(2)(g) ground were established in respect of EM.

The appeal asked 1) whether or not the sheriff was entitled to have regard to the hearsay evidence of IM in the particular circumstances by which it came before him, and 2) whether then the sheriff was entitled to find the grounds of referral established.

IM applied and was allowed to be party minuter in the case. She made similar arguments to NM and wished to be discharged from the referral to the children's hearing.  

Held: The starting point in the appeal was the sheriff's duty to ensure a fair hearing in line with article 6(1) ECHR. Overall fairness in the proceedings must be evaluated. The Appeal Court applied the Al-Khawaja test, an evaluation of fairness from three perspectives when the state relies on a hearsay statement in the absence of the witness (see JS v Children's Reporter 2017 SC 31, para 36) and found that there were sufficient counterbalancing factors to compensate for the evidence not being tested in court which permitted a fair and proper assessment of the reliability of IM's hearsay evidence. 

Whilst criticising the sheriff's approach to IM's evidence and his failure to raise the issue of fairness when it became apparent IM would not give evidence, the court concluded that given the whole circumstances of the case, including the counterbalancing factors present, the proceedings were fair. The appeal was refused.