"The Assessor" in terms of s.210B Criminal Procedure (Scotland) Act 1995

The purpose of this note is to consider the role of the assessor in relation to the risk assessment under section 210B of the Criminal Procedure (Scotland) Act 1995.

In doing so, reference is given to how the role of assessor may vary in accordance with the particular forum or purpose for their involvement.

Thereafter, consideration is given to expert witnesses and the extent to which an assessor can fall to be within that category of persons.

Background & the distinguishing roles of Assessors in certain proceedings

In certain proceedings, the role of the assessor will vary in accordance with the statutory provision, which provides a basis for their involvement.

For instance, under rule 29.2(1) of the Ordinary Cause Rules 1993:

• The sheriff may, on the motion by any party or on a joint motion, remit to any person of skill, or other person, to report on any matter of fact.

• Under subsection 2, “the report of such person shall be final and conclusive with respect to the subject matter of the remit.”

• This section is mirrored in Rule 8.4 of the Summary Cause Rules 2002.

Similarly, under section 4(6) of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976

• “The sheriff may, either at his own instance or at the request of the procurator fiscal or of any party who may be entitled by virtue of this Act to appear at the inquiry, summon any person having special knowledge and being willing to do so, to act as an assessor at the inquiry.”

Moreover, under para. 6(1) of the Scottish Land Court Act 1993,

• “The Land Court may delegate such of its powers as it may think expedient to any one member or to any two members of the Court, with or without the assistance of one or more land valuers, assessors or other skilled persons, and may revoke, alter or modify any such delegation of powers.”

In each of the above examples, there is a statutory basis allowing the court or tribunal, and the individual charged with presiding over that forum, whether it be Sheriff or otherwise, to call on a “man of skill” with particular knowledge, in a particular area, to assist them on matters within that subject. It is submitted that such assistance takes the form on an opinion, which is based on their particular knowledge.

This can be contrasted with assessors providing advice on the correct legal procedure to be followed in the course of proceedings in a particular forum.

For instance, under para. 7(1) of Schedule 4 of the Medical Act 1983,

• “For the purposes of advising—

(a) the Investigation Committee where it is considering giving a warning to a person;

(b) an Interim Orders Panel; or

(c) a Fitness to Practise Panel,

on questions of law arising in proceedings before them, there shall in all such proceedings be an assessor to the Panel who shall be appointed by the General Council and shall be—

(i) a person who has a 10 year general qualification, within the meaning of section 71 of the Courts and Legal Services Act 1990,

(ii) an advocate or solicitor in Scotland of at least 10 years' standing, or

(iii) a member of the Bar of Northern Ireland or solicitor of the Supreme Court of Northern Ireland of at least 10 years' standing.”

Similarly, under section 63(5)(a) of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007:

• The clerk of a JP court except on occasions when a stipendiary magistrate presides, is to act as legal adviser to the court

Both examples are of course instances where a Lay person presiding over a particular forum requires legal advice from a legally qualified individual on how matters should lawfully proceed. It could be argued that, by contrast, these forms of assessors provide factual advice, not opinion. The latter role in the 2007 Act was previously embodied in the 1975 District Courts (Scotland) Act 1975. The role provided was that of “Legal Assessor”.

The Role of Legal Assessor

Under the terms of Section 7 of the 1975 Act, each Council for the commission was required to appoint a Clerk who also acted as Legal Assessor and under the provisions of Sections 61, 63 and 65 of the 2007 Act this responsibility is now transferred to the Scottish Court Service and the Sheriff Principal of each Sheriffdom.

The function of the Legal Assessor is not defined in legislation, but it may be described as providing legal advice from a qualified practitioner to the lay Justice.

There is nothing in the legislation about what precisely the duties of the Legal Assessor are and how they should be carried out. However, some of the older case law arising from proceedings of the Courts of lay summary jurisdiction which existed before the 1975 Act is still relevant.

There is a question of the degree to which the Clerk/Legal Assessor should play a pro-active role. There are limitations to this pro-active approach as can be seen in the case of Johanneson -v- Robertson 1945 JC 146 where an unrepresented Accused was assisted in the course of Trial by both the Magistrate and the Police Court Assessor. The High Court said that the function of the Assessor was guiding Magistrates in questions of law and not helping one party before the Magistrate.

In Alexander -v- Boyd 1966 JC 24 the Accused was in effect cross-examined by the Assessor, who disbelieved the evidence given by him. In both of these cases, the conviction was quashed on Appeal because of the improper conduct of the Assessor.

It is clear that the Clerk must be partial to neither the defence (as in Johanneson) nor to the prosecution (as arguably in Alexander). It was said in Alexander that it was the “duty of the Assessor to advise the Magistrate on every matter which has been the subject of evidence including credibility”.

In the case of Clark -v- Kelly -2001 JC 16, it was decided by the High Court of Justiciary that the Legal Assessor was not a member of the Court and the fact that in their capacity as Legal Assessors, they may offer advice to Justices in private does not make prosecutions per se in the Court incompatible with the ECHR.

A further case raising this point - Clark -v- Kelly was appealed to the Privy Council which upheld the decision of the High Court of Justiciary and which issued a detailed Judgement. The suggested practice arising out of this decision is stated at Paragraph 69 – which is a direction by Lord Hope to the effect that if any advice is tendered by the Legal Assessor to the Justice in private on matters of law, practice or procedure, then this should be viewed as provisional until it is stated in open Court and the parties have had the opportunity to comment on it.

It is therefore the Assessor’s duty under statute to advise the Justices either at their request or on his own initiative, on matters of law, practice and procedure, and so he is able to guide them against making mistakes. He does not offer judgement. Unless there is good reason for not doing so, Justices should accept the advice on procedural and legal matters.

Expert Witnesses

The role of the expert witness in civil and criminal cases, and the limitations placed by law on that role, were summarised by Lord President Cooper in the case of Davie v Magistrates of Edinburgh [1953] S.C. 34 at page 40:

• “Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgement by the application of these criteria to the facts proved in evidence.”

Common Law Guidance on the Role of Assessors

The clearest guidance on the function of an assessor can be found in the House of Lords case of Richardson v Redpath, Brown & Company Limited [1944] AC 62 where Viscount Simon commented at page 70:

• “But to treat a medical assessor, or indeed any assessor, as though he were an unsworn witness in the special confidence of the judge, whose testimony cannot be challenged by cross-examination and perhaps cannot even be fully appreciated by the parties until judgment is given, is to misunderstand what the true functions of an assessor are. He is an expert available for the judge to consult if the judge requires assistance in understanding the effect and meaning of technical evidence. He may, in proper cases, suggest to the judge questions which the judge himself might put to an expert witness with a view to testing the witness's view or to making plain his meaning. The judge may consult him in case of need as to the proper technical inferences to be drawn from proved facts, or as to the extent of the difference between apparently contradictory conclusions in the expert field.”

In the Court of Session case of Taylor v Minister of Pensions [1946] SC 99, Lord Justice Clerk Cooper noted at page 107:

• “I find it impossible to accept the suggestion that the sole duty of the medical member is to act as an animated lexicon, providing definitions of technical terms, but keeping his professional knowledge and experience in all other respects locked as a secret in his breast. Even if he were only an assessor, it would, in my view, be legitimate to apply to him the words used by Earl Loreburn, L.C., in Woods v. Wilson, approved in Richardson v. Redpath Brown, that the tribunal “had a right to act upon the opinion of the assessor, not of course as to events, but as to matters of opinion such as medical inferences from proved facts, and this whether there was or was not any corresponding opinion on the part of professional witnesses. I do not know what is the use of assessors except to furnish a Court with the means of checking, and if need be of either supplementing or superseding, the opinions of witnesses so far as they rest on medical inferences. If it is not so, then the Court would be at the mercy of skilled witnesses.”

In the English case of Watson v General Medical Council [2006] I.C.R. 113, Stanley Burton J commented at paragraphs 42 & 43:

• “Assessors have been used in the administration of justice in this country for a considerable period. They are appointed when the issues before the tribunal are regarded as requiring expertise that the members of the tribunal do not possess. There is no consistency in their use. As has been seen, medical assessors are appointed in hearings of the Fitness to Practise Panel, yet in civil claims allegations of medical negligence are routinely determined by medically inexpert judges. The status of an assessor is unusual. He is not a member of the tribunal, but neither is he a witness or a party. He cannot be cross-examined if his advice contradicts that of one of the parties. In civil proceedings, understandable issues as to the proper role of assessors, as to the proper procedure to be followed, and as to their merits as against those of expert witnesses, led to their appointment outside the fields of Admiralty actions and costs being unusual. CPR r 35.15 has been seen as encouraging the appointment of assessors, but in practice they are rarely seen. The classic, but to my mind not very informative, statement of the role of assessors is in the speech of Viscount Simon LC in Richardson v Redpath Brown & Co Ltd [1944] AC 62 , 70-71, cited in Sadler v General Medical Council [2003] 1 WLR 2259 , to which I refer below. However, authorities on the role of assessors in other contexts are no more than the starting point for the consideration of their proper role and the appropriate procedure. Their role and questions of procedure must be determined by the rules applicable to the proceedings in question. In addition, in cases such as the present, which engage the rights of the practitioner under article 6 of the European Convention on Human Rights, the court is required to take into account the jurisprudence of the European Court of Human Rights when considering the applicable procedural rules and older English authorities.”