Inner House finds sheriff wrong to admit hearsay statements in children’s proceedings after assault on four-year-old child

About this case:

• Citation:
  [2026] CSIH 23
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lady Wise

Appellant AJ argued that the sheriff had erred in law by finding that he was a member of the same household as his son SJ and on that basis finding that SJ had a close connection with a person who had committed an offence listed in Schedule 1 of the Criminal Procedure (Scotland) Act 1995. Douglas Hill, the locality reporter manager acting as respondent, argued that the evidence clearly showed AJ to be part of the same family unit as SJ and there had been no violation of the appellant’s right to a fair trial.

The appeal was heard by Lady Wise, Lord Clark, and Lady Carmichael, with Allison, advocate, appearing for the appellant and D Blair, advocate, for the respondent.

Failed to put on notice

In November 2022, grounds of referral were framed in relation to SJ, resulting in a protracted hearing which took place over 13 months. In December 2024, the sheriff at Dumbarton found that in August 2013 the appellant violently assaulted SJ’s half-brother R to his severe injury and the danger of his life. They were two of six children born to IS, a married woman with whom the appellant had carried on a clandestine sexual relationship for some years.

The evidence before the sheriff did not include any witness present in the home of IS over the night of 28/29 August 2013, including IS and the appellant. He accepted a circumstantial case that the appellant had inflicted the injuries on R to ensure he would not interrupt him when he wanted to have sex with IS. The sheriff also had sight of four police statements given by IS, who stopped attending the hearing after 9 days of evidence. In the third and fourth statements, she stated that her first statement, in which she made no reference to AJ’s presence, was untruthful and that AJ had taken R into a separate bedroom and not let her see what he was doing.

Counsel for the appellant had objected to the admissibility of IS’s statements on the basis that the admission of her hearsay evidence was unfair. The sheriff rejected that submission based on independent corroboration available from other evidence, taking the view that once it was accepted that R had been assaulted it could only have been one of the adults who had been with him, and no evidence implicated IS.

It was accepted by the sheriff that SJ and AJ were part of the same household due to the paternal relationship and continuing ties of affection and regular contact. Having rejected the submission on admissibility, he amended the statement of facts, without informing the parties of his intention to do so, to attribute sole responsibility for R’s injuries to AJ.

For the appellant it was submitted that no relevant evidence had been led to demonstrate a close connection between AJ and SJ. While “household” went beyond physical proximity, there was a paucity of evidence on affection and contact. Further, the amendment of the statement of facts without consulting the parties was contrary to Article 6 ECHR, the sheriff having failed to put him on notice.

Serious procedural irregularity

Lady Wise, delivering the opinion of the court, began by briefly dealing with the “same household” test: “The sheriff had ample evidence to support a conclusion that AJ had been part of a household with IS and their children for some years. The unorthodox nature of the clandestine arrangements provided sufficient explanation for his part time presence within the home. As SJ was removed from the home by state intervention at birth, the absence of up-to-date information about the relationship between IS and AJ was not fatal to a finding that they were members of the same household. It had been established that the household of which AJ was a part time member was operating until at least May 2021.”

Turning to the sheriff’s decision to identify AJ as the single perpetrator, she added: “Considering the material now available, it cannot be said that the sheriff, contrary to the position taken by him in the stated case, amended paragraph 6 of the statement on his own initiative. He had a specific motion on behalf of one party, IS, to achieve the result he ultimately considered was the correct one. That motion was made in contested proceedings in which the party prejudiced by the motion was represented and participating. We conclude that the error on the part of the sheriff was to fail to record that he was acceding to a motion made to him by IS’s counsel and to convey in the stated case that he had amended of his own accord without hearing parties.”

Considering whether the hearsay statements of IS ought to have been admitted, Lady Wise said: “Taking a pragmatic approach, as the sheriff did, by hearing the evidence before deciding on the objection, is not wrong in principle and may well have been justifiable had IS ceased to attend hearings before the motion to admit the hearsay statements was made. It is more difficult to understand why such a motion was made at all when IS was present and available to give evidence. Her absence from the witness list could easily have been resolved. The statements she had given to the police could have been put to her in evidence and she could have been cross-examined on the contradictory accounts she had given.”

She concluded: “The manner in which the sheriff approached AJ’s objection to the hearsay evidence in this case constituted a serious procedural irregularity of a type that went to the core of the ultimate outcome. A decision was taken, in the presence of a crucial witness, that negated the chance of testing of that witness’s evidence. The identification of the appellant as an individual perpetrator rather than present within a pool of possible perpetrators would have a significant impact on future decision making by the children’s hearing, which does not address contentious issues of fact but makes decisions after those facts have been determined.”

The appeal was therefore allowed, with the case remitted to the sheriff court for a fresh hearing by a different sheriff.