David Cameron Millar And Paul Stewart And Kerry Payne And Joseph Tracey And David Ledger Marshall V. Procurator Fiscal, Elgin And Procurator Fiscal, Dundee And Procurator Fiscal, Stirling
| Jurisdiction | Scotland |
| Judge | Lord Johnston,Lord Prosser,Lord Cowie |
| Court | High Court of Justiciary |
| Date | 03 August 2000 |
| Docket Number | C857/99 |
| Published date | 03 August 2000 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
| Lord Prosser Lord Johnston Lord Cowie
| Appeal Nos: C857/99 2594/99 2854/99 2670/99 177/00 OPINION OF LORD PROSSER in BILL OF ADVOCATION by DAVID CAMERON MILLAR Complainer; against PROCURATOR FISCAL, Elgin, Respondent: and BILLS OF SUSPENSION for PAUL STEWART, KERRY PAYNE, JOSEPH TRACEY and DAVID LEDGER MARSHALL, Complainers; against PROCURATOR FISCAL, Dundee and PROCURATOR FISCAL, Stirling Respondents: _______ |
Complainer: Shead; Mackenzie Law Practice
Respondent: Solicitor General, McNeill, A.D.; Crown Agent
Complainers: A. O'Neil, Q.C., Muir; Purdie & Co: Bovey, Q.C., Shead; Drummond Miller: Bovey, Q.C., Shead; Purdie & Co: Wheatley, solicitor advocate; Wheatley & Co.
Respondent: Solicitor General, McNeill, A.D.; Crown Agent
3 August 2000
General
[1]These five Bills were heard together. The four Bills of Suspension came before the court on 16 March 2000, when they were continued in circumstances referred to in the Opinion of the Court of that date. The issues raised in each of those Bills relate to the decision in Starrs v. Ruxton; Ruxton v. Starrs 2000 J.C. 208, and it was seen as appropriate that the four Bills should be dealt with together, as they exemplified a number of different situations in which the same basic issues might arise. The issue in the Bill of Advocation is similar and at the continued hearing on the Bills of Suspension, it was seen as appropriate to deal also with the Bill of Advocation.
[2]All five Bills arise out of proceedings before temporary sheriffs. In the case of David Millar, the proceedings (in Elgin Sheriff Court) were solemn. In the other four cases the proceedings were summary (against Marshall in Stirling Sheriff Court, and against the other three complainers in Dundee Sheriff Court). The cases are unrelated. Two dates are significant in relation to all five Bills. 20 May 1999 is the date on which the Lord Advocate became subject to section 57(2) of the Scotland Act 1998 in carrying out his functions in connection with criminal prosecution, and 12 November 1999 is the date upon which the decision in Starrs was issued. In all five cases, the proceedings in the Sheriff Court were concluded before this latter date. In the cases of Millar, Payne and Tracey, the whole relevant proceedings took place after 20 May 1999 - Payne pleading guilty, and Millar and Tracey being found guilty after trial, and all three being subsequently sentenced. Stewart had been found guilty after trial, before 20 May 1999, but sentence was imposed after that date. Marshall had been found guilty after trial, and sentenced, before 20 May 1999. Still prior to that date, he sought leave to appeal, and the final refusal of leave occurred after 20 May; but the submissions advanced on his behalf did not relate to that stage of proceedings, but to his conviction and sentence.
[3]No distinction need be drawn between the cases of Millar, Payne and Tracey; nothing was said to turn upon the difference between conviction after trial and conviction on a plea of guilty, and no significance was attached to the difference between solemn and summary procedure. On behalf of each of these three complainers, we were asked to pass the Bill, and quash both conviction and sentence, upon the basis that the carrying on of the prosecution before a temporary sheriff involved a breach of the complainers' entitlement to an independent and impartial tribunal, in terms of Article 6(1) of the Convention. Upon that same basis, Stewart asked that his sentence be quashed: having initially amended his Bill with a view to asking that conviction also should be quashed, counsel did not in the event advance any argument in relation to matters before 20 May 1999. It was thus only in the case of Marshall that events before that date were the subject of submissions; and these were based not upon the provisions of Article 6(1) of the Convention but upon the pre-existing common law of Scotland. It is convenient to deal first with the four cases which turn upon Article 6(1) of the Convention.
[4]In relation to these cases, the Solicitor General on behalf of the respondents conceded that there was a relevant "act" for the purposes of paragraph 1(d) of Schedule 6 to the Scotland Act 1998. It was accepted, upon the basis of the decision in Starrs, that the temporary sheriffs were not an "independent and impartial tribunal" within the meaning of Article 6(1). The Crown's position was, however, that each of these complainers had tacitly waived the right to an independent and impartial tribunal. And regardless of the question of waiver, the Crown's position was that, notwithstanding the decision in Starrs, the acts of each of the temporary sheriffs, in convicting and/or sentencing the complainers prior to the date of that decision were those of a de facto judge, and should be treated as valid. Moreover, it was not suggested on behalf of any of these complainers that waiver of the entitlement to an independent and impartial tribunal under Article 6(1) would be incompetent or otherwise impossible as a matter of law: the question was not whether that entitlement could be waived, but whether it had been in these cases. It is convenient to deal with the question of waiver first, before considering the contention that these decisions are valid as decisions of de facto judges. Upon both issues, it appeared to me that there was no substantial difference between the submissions advanced on behalf of the different complainers, and I have not found it necessary to deal with these submissions separately from one another.
Waiver
[5]On behalf of the complainers, the submission was that the right under Article 6(1) had not been waived. Questions of possible waiver have of course arisen in a wide range of situations, and our attention was drawn to quite a number of authorities which illustrate the principles involved. In relation to Article 6(1) itself, the issue of waiver has arisen in a number of different ways. In Oberschlick v. Austria (1991) 19 E.H.R.R. 389, at page 420 it was observed that according to the court's case law "waiver of a right guaranteed by the Convention - in so far as it is permissible - must be established in an unequivocal manner." We were referred also to Pfeifer (1992) 14 E.H.R.R. 692. At paragraph 37, on page 712, the court referred to what had been said in Oberschlick, and went on to say "Moreover, the court agrees with the Commission that in the case of procedural rights a waiver, in order to be effective for Convention purposes, requires minimum guarantees commensurate to its importance." In that case, even express words of waiver had been held not to meet the requirements, having regard to the whole circumstances and in particular the applicant's lack of understanding of the position. Where there was no expression of waiver, as in the present cases, and the alleged waiver was thus "tacit", it was submitted that for the waiver to be "unequivocal" the intention to waive a right would have to be very clear, particularly if there was no "minimum guarantee" such as actual discussion between solicitor and client.
[6]In relation to tacit waiver, it was acknowledged by counsel for the complainers that this could occur where a legally represented applicant had failed to raise an objection to the tribunal when it was open to him to do so. But under reference to Hakansson and Sturesson v. Sweden (1990) 30 E.H.R.R. 1 and McGonnell v. The United Kingdom, 8 February 2000, application No. 28488/95, it was submitted that the question became one of whether the applicant ought to have taken the point, and that this depended on what was reasonable in the whole circumstances of the case. A failure to take the point might result from ignorance of the relevant facts. But it was apparent from the European jurisprudence that a failure to take the point would be regarded as reasonable, and not to be interpreted as tacit waiver, if the point was one upon which the law was at the time uncertain, or if the prospects of having an objection upheld were seen as having been weak or unrealistic.
[7]In relation to waiver, which had to be intentional and unequivocal, failure to take a point which was open in terms of the current understanding of the law might amount to deemed waiver. But the case of Bordeaux Vineries, referred to in McGonnell, would have had to be overturned if the potential objection in McGonnell were to be upheld, and in that situation waiver could not be implied. In Werner v. Austria (1998) 26 E.H.R.R. 310, the applicant had not expressly asked for a public hearing to be held, and the court had to consider whether he had thereby waived his right to have one, in terms of Article 6(1). It was established that there was never a public hearing, in proceedings of the kind in question; and the court went on to say that the applicant could not be blamed for not having made an application which had no prospects of success. There was thus no waiver - and there was a breach of the right in terms of the Article. Hakansson was distinguished, because in that case there was provision for a public hearing. It was submitted that the appropriate approach was further illustrated in H. v. Belgium (1987) 10 E.H.R.R. 339, where the court acknowledged, at paragraph 54, that the rule requiring a public hearing might in certain circumstances yield to the will of the person concerned: neither the letter nor the spirit of Article 6(1) prevented an avocat from "waiving, of his own free will and in an unequivocal manner" the entitlement to have his case heard in public. But the evidence adduced did not establish that H. intended to waive his right to a public hearing. "He cannot be blamed for not having demanded to exercise a right which was not afforded him by the practice of the Belgian bars, and that he had little prospect of securing." Again, in Campbell and Fell v. The United Kingdom (1985) 7 E.H.R.R. 165, in...
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