Gibbs v Ruxton
| Jurisdiction | Scotland |
| Judgment Date | 24 November 1999 |
| Date | 24 November 1999 |
| Docket Number | No 30 |
| Court | High Court of Justiciary |
JC
L J-G Rodger, Lord Sutherland and Lord Weir
Administration of justice—Temporary sheriffs—Pool of temporary sheriffs appointed by Secretary of State on commission to act in all sherisffdoms—Temporary sheriffs engaged when particular need identified in particular sheriffdom—Temporary sheriffs engaged during absence of permanent sheriffs through illness, vacancy in office, holidays, extra-judicial commitments and while sitting as temporary High Court judges—30 per cent of temporary sheriffs' engagements required to deal with backlog of work in sheriffdoms or because of unanticipated overrun of permanent sheriffs' court business—Whether temporary sheriff appointed only when engaged on particular occasion—Whether temporary sheriffs appointment ultra vires Secretary of State—Sheriff Courts (Scotland) Act 1971 (cap 58), sec 11(2)1
Section 11(2) of the Sheriff Courts (Scotland) Act 1971 enacts that: “Where as regards any sheriffdom (a) a sheriff is by reason of illness or otherwise unable to perform his duties as sheriff, or (b) a vacancy occurs in the office of sheriff, or (c) for any other reason it appears to the Secretary of State expedient so to do in order to avoid delay in the administration of justice in that sheriffdom, the Secretary of State may appoint a person (to be known as a temporary sheriff) to act as a sheriff for the sheriffdom.”
The pannel was charged on a summary complaint libelling culpable and reckless endangerment and, alternatively, breach of the peace. After the pannel had failed to appear at an intermediate diet and a temporary sheriff had granted warrant for his arrest, the pannel objected to the competency of the proceedings on the ground, inter alia, that the appointment of the temporary sheriff was ultra vires the Secretary of State because temporary shrieval appointments were not made to meet temporary emergencies as they arose but were made on a long-term basis to supplant the ranks of permanent sheriffs. The sheriff (K A Ross) repelled the objection and the pannel thereafter appealed to the High Court of Justiciary. Before the High Court the Crown explained that temporary sheriffs (who received a one-year commission authorising them to act in all sheriffdoms) were employed on a daily basis when a need for them was identified to the Scottish Courts Administration (as it then was) by the sheriff clerk in particular sheriffdoms. In the preceding year temporary sheriffs had been engaged to deal with court sittings when the permanent sheriff had been absent through illness, vacancy in office, holidays, extra-judicial commitments such as Scottish Land Court and parole board hearings and meetings and conferences, and while sitting as temporary High Court judges. A further 30 per cent of temporary shrieval engagements had arisen because of the need to deal with the unanticipated overrun of permanent sheriffs' court business or to clear a backlog of business. The Crown contended that a temporary sheriff was only appointed when he was sent to a particular sheriffdom on a particular occasion.
Held (1) that the temporary sheriff's appointment dated from the date of his commission, even though the use made of the temporary sheriff might vary from time to time, and it did not come into force solely on each occasion when a temporary sheriff's services were engaged (pp 259F, 267F–G, 269H); (2) that the use being made of temporary sheriffs was not to replace permanent sheriffs but to provide additional assistance in particular sheriffdoms if a necessity were identified for such assistance to avoid delay in the administration
of justice (pp 259F, 269C–D, 269H); and (3) that once that use had been identified and could be justified, the Secretary of State was acting within his powers by issuing commissions to a pool of temporary sheriffs who would, from time to time, provide such assistance rather than by having to issue a commission to each temporary sheriff on each occasion when his services were required (pp 259F, 269D–E, 269H); and appeal refused.Dicta of the Lord Justice-Clerk (Cullen) and Lord Reed inStarrs v RuxtonSC2000 JC 208considered.
Opinion reserved as to whether the acts of a temporary sheriff could be valid in law even though his appointment was invalid (pp 262F–G, 269G, 269H–I)
Douglas William Gibbs was charged in the sheriffdom of Lothian and Borders at Linlithgow at the instance of Linda M Ruxton, procurator fiscal there, on a summary complaint the libel of which set forth culpable and reckless endangerment and, alternatively, breach of the peace.
The pannel pled not guilty on 12 March 1999 and after sundry procedure had been followed and the pannel had failed to appear at an intermediate diet on 11 October 1999, the temporary sheriff (C W B Coutts) granted warrant for the pannel's apprehension. After the pannel's appearance in respect of the warrant on 29 October 1999, an objection was stated to the competency of the proceedings on the ground, inter alia,that the temporary sheriff's appointment was ultra vires the Secretary of State in terms of sec 11(2)(c) of the Sheriff Courts (Scotland) Act 1971.
After debate, on 17 November 1999, the sheriff (K A Ross) repelled the objection.
The pannel thereafter appealed, with leave of the sheriff, to the High Court of Justiciary.
Cases referred to:
Mackay and Esslemont v Lord AdvocateSC 1937 SC 860
R v Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696
Starrs v RuxtonSC 2000 JC 208
T, Petitioner 1997 SLT 724
Textbook referred to:
Wade and Forsyth, Administrative Law (7th ed), pp 326–328
The cause called before the High Court of Justiciary, comprising the Lord Justice-General (Rodger), Lord Sutherland and Lord Weir for a hearing.
At advising, on 24 November 1999—
LORD JUSTICE-GENERAL (Rodger)—I have read the opinion to be delivered by Lord Sutherland and agree with it and indeed with the provisional opinion on the point indicated by Lord Prosser inStarrs v Ruxton. Because of the importance of the matter I add some general observations.
Like Lord Sutherland I attach importance to the fact that the Sheriff Courts (Scotland) Act 1971 (“the Act”) was passed in order to reorganise the administration of the sheriff courts in the light of the report of the committee chaired by Lord Justice-Clerk Grant. The Act confers a number of functions on the Secretary of State, including the appointment of temporary sheriffs under sec 11. By sec 1 all of the functions were conferred on the Secretary of State for the purpose of carrying out his duty to secure the efficient organisation and administration of the sheriff courts—a duty which thus underpins the whole of Part I of the Act. Since the Secretary of State's duty and functions apply throughout Scotland they transcend the not dissimilar duty and functions conferred on each of the sheriffs principal in respect of his sheriffdom under secs 15 to 17 of the Act. Indeed, in sec 18 the Secretary of State is given the ultimate power himself to discharge the functions of a sheriff principal where the Secretary of State considers that the sheriff principal's exercise of any of the functions or failure to exercise any of the functions is prejudicial to the speedy and efficient disposal of business in the courts of the sheriffdom, or to the efficient organisation or administration of the sheriff courts generally, or is otherwise against the interests of the public.
The clear implication of the legislation is that, although Scotland remains divided up into distinct sheriffdoms each under a sheriff principal, those sheriffdoms are to be seen as units in a system of sheriff courts stretching throughout Scotland and over which the Secretary of State is to have an administrative oversight, coupled with a duty to make the organisation and administration of the sheriff courts efficient. The duty and functions conferred on the Secretary of State passed to the Scottish Ministers under sec 53(1) and (2)(c) of the Scotland Act 1998 on 1 July 1999. But all the appointments of temporary sheriffs were made by the Secretary of State before that date.
The appointment of temporary sheriffs under sec 11 of the Act is one of the functions which were conferred on the Secretary of State for the purpose of carrying out his duty to make the organisation and administration of the sheriff courts efficient. It therefore appears to me that the section should be construed in a way which will promote rather than frustrate that aim. In particular, when that aim is kept in mind, I see little reason to accept the submission advanced by senior counsel for the appellant and to adopt an interpretation of sec 11 which would allow the Secretary of State to make an appointment only when some particular emergency was identified. For instance, counsel said that, every time a court overran and did not complete its work somewhere in Scotland, the Secretary of State would then and there have to make a fresh appointment if he wished a temporary sheriff to go to the sheriff court to take over the other urgent business of the court the following morning. Even though the Secretary of State and his officials might know from experience that this kind of demand would arise frequently, they could not have anyone appointed as a temporary sheriff under sec 11(2)(a)–(c) to whom the Secretary of State could give a direction under sec 9 to go to the appropriate sheriff court as and when required. An interpretation which circumscribed the Secretary of State's power under sec 11 in this way would be more likely, I conceive, to create chaos than to promote the efficient administration of the courts.
Counsel for the appellant made much, as had the complainers inStarrs, of the large number of persons appointed as temporary sheriffs. For my part, however, I have some difficulty in seeing how the fact that the Secretary of State made a large number of appointments could in itself make any...
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