A controversial judicial career is examined by Ron MacKenna

INSISTING an accused sang The Sash in court was bad enough, but when the learned sheriff sang two versions himself, loudly and from the bench, Scotland's senior judges were less than impressed.

The Sash incident is perhaps the most memorable in Sheriff David Smith's career, and was described as ``deplorable'' by three appeal court judges, but it has been by no means the only controversial incident.

The sheriff, nicknamed the Ayatollah, was in hot water in 1985 over remarks he allegedly made about striking miners at a social gathering. It was claimed he had lost his objectivity after having told a defence solicitor that he knew what he would do with miners, and also words to the effect ``I'm bloody sure they will not be getting legal aid from me''.

Somewhat inevitably, the comments came back to haunt the sheriff during the trial of striking miners some time later. After the matter was raised, the sheriff said he was ``flabbergasted'' that a private conversation at a social gathering should be used as a legal submission.

He left the bench for 20 minutes to consider the submission then returned saying he had taken an oath to do right to all people without fear or favour, affection or ill will and he did not propose to disregard that - and continued.

When the matter came before the appeal court it was sufficiently concerned to overturn the convictions of 14 miners dealt with by the sheriff.

The court said there was nothing to indicate the sheriff had, in fact, acted unfairly during the trials. However, justice should not only be done, but be seen to be done.

It concluded that a reasonable person, on hearing the sheriff's remarks, would have concluded he was biased in cases involving miners.

In 1989, Kilmarnock and Loudoun MP Willie McKelvey urged an inquiry into the judicial regime at Sheriff Smith's court, claiming that youngsters were being given jail sentences when an alternative would have been suitable.

It was also revealed that more than twice as many cases involving 16 to 20-year-olds resulted in custodial sentences at Kilmarnock, where Sheriff Smith was one of three sheriffs.

More recently, the sheriff was warned over his failure to produce reports for appeal court judges.

Lord Sutherland, who was sitting at the Justiciary Appeal Court with Lords Cullen and Wylie, said he did not know the precise circumstances, but it was essential in the interests of justice that sheriffs produced reports as required by law.

The Sash incident arose during an assault trial before the sheriff in 1985. Evidence had been given during the trial that the victim had been singing a version of The Sash - a sectarian song - and the accused was asked by the sheriff to sing it.

When he refused, the sheriff insisted - saying it was vital for evidence - before singing two versions himself from the bench.

On appeal, Lord Ross, the Lord Justice Clerk, said that what the sheriff had done was ill considered and wholly out of place.

He said: ``A judge must also preserve the dignity of his court and his calling. The sheriff here did not act fairly to the complainer. He sought during the trial to hold him up to derision and he must have caused him acute embarrassment.''

However, despite their concerns the appeal court judges refused to allow the accused's appeal, stating it had been an isolated incident and the trial had still been fair.