Clark v Kelly
| Jurisdiction | UK Non-devolved |
| Judge | Lord Bingham of Cornhill,Lord Hoffmann,Lord Hope of Craighead,Lord Hutton,Lord Rodger of Earlsferry |
| Judgment Date | 11 February 2003 |
| Neutral Citation | [2003] UKPC D1,2003 SCCR 194 |
| Court | Privy Council |
| Docket Number | No 3,DRA. No. 2 of 2002 |
| Date | 11 February 2003 |
[2003] UKPC D1
Privy Council
Present at the hearing:-
Lord Bingham of Cornhill
Lord Hoffmann
Lord Hope of Craighead
Lord Hutton
Lord Rodger of Earlsferry
This devolution issue raises a question concerning the structure and procedure of district courts in Scotland. Put very shortly, the question is whether, if the complaint of theft made by the Procurator Fiscal, Kirkcaldy, against the minuter proceeds to trial in the District Court sitting at Kirkcaldy before a lay justice of the peace, the minuter's rights guaranteed by article 6 of the European Convention on Human Rights will be violated, that is, whether he will be denied a fair and public hearing by an independent and impartial tribunal. The question is an important one, since district courts so constituted handle a substantial proportion of criminal business in Scotland. Magistrates' courts in England and Wales differ from Scottish district courts in their jurisdiction, in the number of justices who ordinarily sit and in some aspects of their procedure, but the two systems are, in all essentials, similar. Thus the question raised is also one of importance in England and Wales, where a very high percentage of criminal cases begin and end in the Magistrates' court.
In England and Wales the role of justices has evolved over the centuries since the Justices of the Peace Act 1361. In Scotland the system is of more recent growth. But in both countries the systems as they now exist have very few equivalents outside the mainland of Britain. There are two features in particular which distinguish them from almost every trial regime to be found elsewhere. In addressing these features I shall ignore professional stipendiary magistrates who, despite their important role in Glasgow and a number of major English and Welsh cities, are irrelevant to the present issue. I shall adopt, without repeating, the account given by my noble and learned friends Lord Hope of Craighead and Lord Rodger of Earlsferry of the relevant Scottish legislation, of the present litigation between the parties and of the litigation between them which preceded it. And I shall, for convenience, assume that the District Court at Kirkcaldy will comprise a single lay justice (although sometimes in Scotland, as almost invariably in England, a lay bench may comprise more than a single justice).
The first key feature of both systems is that justice is administered by (on the assumption made) a person usually lacking any formal legal education or qualification (although the beneficiary of some training). Such person, working voluntarily and without reward, is for all legal purposes a judge: carefully chosen as possessing qualities of judgment, fairness, open-mindedness and common sense; bound to observe a formal judicial oath; and irremovable (below the age of retirement) save for good cause. To such person, and to such person alone, it falls to decide what evidence should be believed and what doubted or rejected, and whether the charge is proved or not. The lay justice is the sole legal decision-maker in the district court.
In very many of the cases which routinely come before district courts, involving minor traffic offences, petty thefts and assaults and matters of that kind, the issue in the case (if it is defended) will turn on the facts and raise no question of law. But it is, of course, true that in any case, however minor, a question of law may arise, whether on the admissibility of evidence, or the existence of evidence capable of corroborating other evidence, or the ingredients of a common law offence, or the interpretation of an offence-creating statutory provision or, after conviction, on the sentencing powers and duties of the court. In such instances the lay justice, lacking the legal expertise of those representing the prosecutor and the accused before the court, is at a disadvantage.
The solution to this problem, developed and refined over many years, is found in the second key feature of both systems, the legally-qualified clerk to the court, who must in Scotland be an advocate or a solicitor. The task of the clerk is to advise the lay justice on any question of law arising during the case. It is the clerk's duty, as a professional person bound by an exacting code of conduct, to give advice to the best of the clerk's ability, with the independence and impartiality (and also the care) required of any solicitor or advocate expressing a professional opinion. The clerk represents no party and his approach should be wholly unpartisan. He does not enjoy the security of tenure appropriate for a judge. He would (like any professional person) be bound to disqualify himself if, in any case, he found himself subject to any conflict of interest. If anyone were to attempt to influence the opinion of the clerk otherwise than by argument in open court, such conduct would be regarded as wholly improper, and were the clerk to accede it would be recognised as a culpable dereliction of duty. If the clerk were at any point, publicly or privately, to offer any opinion on the facts of any case, that also would be a culpable dereliction of duty, since all factual decisions are for the justice alone (although if the justice wishes to be reminded of the effect of any oral evidence given during the hearing the clerk may properly remind him, provided this is done in open court).
I do not think it helpful to consider one of the questions raised in argument before the Board, namely whether the clerk is part of the tribunal in the district court or not. The clerk is, without doubt, essential to the functioning of the district court. But he is not, equally plainly, a decision-maker. He is an independent and impartial professional adviser. The question whether the minuter's rights under article 6 of the Convention will be violated if he is tried in the district court must be answered not by identifying a pigeon-hole into which the clerk's unique role should be placed but by examining how, properly conducted, the minuter's trial will in practice proceed.
It used not, I understand, to be the practice in Scotland, and it certainly used not to be the practice in England and Wales, for disclosure to be made in open court of legal advice given privately by the clerk to the bench. In both jurisdictions, however, attention has been drawn to the general advisability of disclosing the effect of such advice to the parties and giving them an opportunity to make appropriate submissions: see Clark v Kelly 2001 JC 16 at 32, paragraph 24, in Scotland; Practice Direction (Justices: Clerk to Court) [2000] 1 WLR 1886, in England and Wales. This judicial guidance builds on existing authority that a clerk should not retire with justices unless clearly requested in open court to do so and should return to court when legal advice has been given ( R v Eccles Justices, Ex p Fitzpatrick (1989) 89 Cr App R 324) and should not appear to participate in the decision-making process ( R v Eccles Justices, Ex p Farrelly (1992) 157 JP 77; R v Birmingham Magistrates, Ex p Ahmed [1995] Crim LR 503). But the guidance takes the process of procedural development an important stage further by promoting transparency in the tendering of advice by the clerk to the bench and ensuring that any party wishing to challenge that advice has the opportunity to do so. The observations of the Board in Nwabueze v General Medical Council [2000] 1 WLR 1760 at page 1775 are very much in point. It may very well be that the response to this judicial guidance in both Scotland and England and Wales has been sluggish and patchy, but the recommended practice has been indicated and if, in any case, a clerk gives legal advice to the bench and does not disclose the effect of it in open court, the representative of either party may ask that disclosure be made. If it is true that the guidance given in Clark v Kelly 2001 JC 16 has not as yet been observed in practice to the extent that one might have expected, those responsible for training justices and clerks in Scotland may no doubt wish to take steps to give it greater prominence, and perhaps to reconsider the terms in which guidance is given. I am sure that the observations of my noble and learned friend Lord Hope will carry great weight.
In the ordinary way a lay justice is likely to accept advice tendered by the clerk, but he is not formally bound to do so and in practice an experienced justice will no doubt acquire a good working knowledge of the areas of law with which he commonly deals. His decision may be challenged by a case stated which, although drafted by the clerk, represents the legal and factual conclusions of the justice, not the clerk. The legal conclusions may be reviewed on appeal. So may the existence of evidence to support the factual conclusions. The law of Scotland does not provide the same extensive right to an appeal hearing de novo as is provided by section 108 of the Magistrates' Courts Act 1980 but there is no reason to doubt that any error of law by the justice or any error concerning the sufficiency of evidence or the existence of evidence capable of corroborating other evidence can be effectively corrected on appeal. Thus the right of appeal enables legal errors by the clerk to be corrected and, as my noble and learned friends point out, the bill of suspension procedure gives the High Court a wide power to correct miscarriages of justice.
The European Court of Human Rights has repeatedly emphasised that alleged violations of article 6 (and other articles) must be judged as questions of substance and not of form. So the question is whether, as a matter of substance, trial of the minuter before a court constituted and proceeding...
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