X Petitioner – A Step Forward in Complainers’ Rights

On 8 February 2022, the Court of Session issued its opinion in the case of X Petitioner, an important judicial review case.  Stuart Munro, head of the firm’s Criminal Litigation department, acted for the petitioner. Kenny McBrearty QC and Adam McKinlay were the instructed counsel.

The person bringing the case, the ‘petitioner’, was a court lawyer.  She made complaints of inappropriate sexual conduct against a sheriff.  In the course of a police investigation two other women came forward and made similar complaints against the same individual.  

The sheriff was not prosecuted, but the authorities decided to hold a ‘fitness for judicial office tribunal’, the first of its kind in Scotland.  The tribunal found only some of the petitioner’s claims to be proved.  While it held the sheriff had behaved inappropriately, it did not recommend his removal from office.

It then became apparent that the tribunal had been unaware of the complaints made by the other women.  In the petitioner’s view, this undermined the whole process, and meant its decision was unfair.

The petitioner took the case to the Court of Session.  The sheriff against whom the complaints had been made argued that she had no right to do so, and suggested that even if the tribunal had known about the other complaints, it couldn’t have made any difference.  The judge, Lord Woolman, disagreed.  He held that the petitioner did have ‘standing’ (the right to bring the case), and that the missing evidence ‘did have an impact on the reasoning’ of the tribunal.  He quashed the tribunal’s decision.

Stuart Munro said:

‘This was an anxious but important case.  Complaints about misconduct on the part of public officials have to be fully and properly investigated.  Those making the complaints need to know that if mistakes are made, they will be idenitified and addressed.  This case highlights the need for complainers to have a voice in processes that affect them.’

This was just one of a number of judicial reviews that the firm has brought for clients in recent years.  Please contact Stuart Munro or Robbie Brodie should you wish for further information.