Right to a Fair Trial: The Painted Bird by Tom Muirhead & Alan Aitken
It is contended that no litigant involved in civil proceedings or an accused in a criminal trial has ever had a ‘fair hearing’ in Scotland. As a result, and as you read this paper, thousands of innocent people are being held in jail. This paper, that is the first of a ten part series, will show why the wearing of gowns and wigs by officers of the court introduces ‘bias’ into all legal proceedings.
In the courts of Scotland all judges, advocates and solicitors wear a uniform that consists of a black gown and a ceremonial wig. It is obvious to the author that this form of dress means that no litigant can ever receive a fair hearing. It is contended that a judge will subconsciously favour those who wear a similar uniform to him or herself as opposed to those who don’t.
Consider the case of a litigant who acts for him or herself and who has raised an action against the state. In Scotland this would be an action against the Scottish Ministers who are represented by the Lord Advocate. In litigation of this type or in any criminal case the party litigant might well be the only person in court not wearing the uniform of a gown and wig.
Before setting out the facts, laying out the relevant law and then applying the law to the facts this paper will start by giving a perspective on this type of bias from a great work of literature…
The Painted Bird
In the Painted Bird, the author Jerzy Kosinski depicts the nightmarish wanderings of a young boy among brutal peasants in a nameless Eastern European country (presumably Poland) during World War II. The boy lives, for a while, under the protection of Lekh, a huge, solitary, man, who makes his living as a bird trapper. The following passage is taken directly from the book:
One day he [Lekh] trapped a large raven, whose wings he painted red, the breast green, and the tail blue. When a flock of ravens appeared over our hut, Lekh freed the painted bird. As soon as it joined the flock a desperate battle began. The changeling was attacked from all sides. Black, red, green, blue feathers began to drop at our feet. The ravens ran amuck in the skies, and suddenly the painted raven plummeted to the freshly plowed soil. It was still alive, opening its beak and vainly trying to move its wings. Its eyes had been pecked out, and fresh blood streamed over its painted feathers. It made yet another attempt to flutter up from the sticky earth, but its strength was gone.
In this passage Kosinski describes the primeval instinct that exists within us all – we will inevitably reject any outsider that comes within the presence of the flock or herd, even to the point of death. If the outsider is different or unlike the members of the flock, he or she is cast out of the group and destroyed. Kosinski brilliantly illustrates that there is a real danger of encountering prejudice when anyone has to deal with a group of people who look or dress differently to him or herself.
- In Scotland, while the court is in session, all judges throughout the court hierarchy wear a uniform consisting of a black gown and a wig.
- The Sheriff Principals do not follow this custom.
- All solicitors and advocates while in court wear a uniform consisting of a black gown and a wig.
- It has never been known for a party litigant or an accused in a criminal trial to wear either a gown or a wig while in court.
- There is no legal requirement for a solicitor, advocate or judge to wear a gown or a wig.
- In an interview with the Journal Online in 2000, Sheriff Graham Johnston stated:
From a PR point of view, we have to start dressing down. Its beyond the powers of reason why we wear a piece of horse-hair on our heads in the 21st century. Some argue its necessary to keep control of the court and for solemnity, but I don’t find it necessary to have a bit of carpet on my head to keep control. It comes down to innate conservatism.
- In HMA V Robertson 2007 SLT 1153 the Inner House of the Court of Session stated that:
In each of the cases involving the complainer it is submitted that his conduct was not contemptuous. I do not agree. In my opinion, the appearance of anyone in court naked, whatever crimes that may constitute, is unquestionably a contempt. The court is entitled to enforce standards of decency and decorum in the dress and demeanour of those who appear before it, whether as witnesses, lawyers, jurors or accused. Conduct such as the complainer’s is not only indecorous. It can offend, upset or alarm those present. It can distract those engaged in the trial from the essential issues. It adds to the difficulties of the presiding judge or sheriff. In all of these ways it impairs the administration of justice.
One of the cornerstones of the Scottish legal system is that justice is administered by judges who are unbiased. Not only are judges required to be unbiased they must also be seen to be so: See Sellar v. Highland Railway Co. 1919 S.C. (H.L.) 19 at pages 20-21; R v. Sussex Justices, Ex parte McCarthy  K.B. 256, 259 and Pinochet, Re  UKHL 52 (15 January 1999)
Article 6(1) of the European Convention on Human Rights (ECHR) encapsulates this requirement by stating, amongst other things, that: everyone, in the determination of their civil rights and obligations, is entitled to a fair and public hearing by an independent and impartial tribunal
The case law that I will use in this paper comes from a decision of the House of Lords in an appeal from Scotland: Davidson v Scottish Ministers 2005 1 SC (HL) 7. Please note that there are many other decisions of the European Court of Human Rights and the national courts of the United Kingdom and elsewhere that discuss and come to similar conclusions to those found in Davidson. Of particular note, see R v Abdroikof  UKHL 37
In Davidson the House of Lords upheld a decision of the Second Division of the Court of Session that, in the exercise of their supervisory jurisdiction, had set aside a decision of the Extra Division on the ground that it’s interlocutors were vitiated by apparent bias and want of objective impartiality as a result of Lord Hardies participation in them. This was due to the Petitioner’s Advocate discovering that Lord Hardie, before becoming a judge in the Court of Session, had previously been Lord Advocate and while acting in this role he had given very clear assurances to Parliament concerning the effect of the legislation that was the bone of contention in the Davidson case.
Lord Bingham of Cornhill gave the lead judgement and stated that:
The rule of law requires that judicial tribunals established to resolve issues arising between citizen and citizen, or between the citizen and the state, should be independent and impartial. This means that such tribunals should be in a position to decide such issues on their legal and factual merits as they appear to the tribunal, uninfluenced by any interest, association or pressure extraneous to the case.
Thus a judge will be disqualified from hearing a case (whether sitting alone, or as a member of a multiple tribunal) if he or she has a personal interest which is not negligible in the outcome, or is a friend or relation of a party or a witness, or is disabled by personal experience from bringing an objective judgment to bear on the case in question. Where a feature of this kind is present, the case is usually categorised as one of actual bias.
But the expression is not a happy one, since bias suggests malignity or overt partiality, which is rarely present. What disqualifies the judge is the presence of some factor which could prevent the bringing of an objective judgment to bear, which could distort the judge’s judgment.
Lord Bingham then went on to hold, while emphasizing that there was no question of Lord Hardies judicial integrity being in doubt, that:
The fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that Lord Hardie, sitting judicially, would subconsciously strive to avoid reaching a conclusion which would undermine the very clear assurances he had given to Parliament.
Application of the Law to the Facts
It is contended (with reference to common sense, the Painted Bird and applying the test laid out in Davidson) that the fair minded and informed observer, having considered the facts, would conclude that a judge will subconsciously favour a party dressed in a similar uniform to him or herself as against a party who is not so dressed.
Please note that this affects all legal proceedings as the ECHR, article 6 rights of a fair hearing in front of an independent and impartial tribunal have to be guaranteed. A party who is represented, in order to get a fair hearing must remain so and as such is denied the opportunity of acting for him or herself.
Read the Painted Bird
I do not think it is too unreasonable to imagine that a party litigant may find him or herself wondering if they are actually in a court of law. They may find themselves thinking that they have instead wandered into some sort of Klan Konvention or are appearing in front of a Masonic fraternity.
The wearing of similar uniforms consisting of cloaks and wigs by judges and other officers of the court affects the administration of justice in Scotland and should end forthwith.