Hugh Latta Starrs And James Wilson Chalmers And Bill Of Advocattion For Procurator Fiscal, Linlithgow V. Procurator Fiscal, Linlithgow And Hugh Latta Starrs And James Wilson Chalmers
| Jurisdiction | Scotland |
| Judge | Lord Prosser,Lord Reed,Lord Justice Clerk |
| Court | High Court of Justiciary |
| Date | 11 November 1999 |
| Docket Number | 1798/99 |
| Published date | 22 June 2000 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
| Lord Justice Clerk Lord Prosser Lord Reed
| Appeal Nos: 1798/99 1799/99 2006/99 OPINION OF THE LORD JUSTICE CLERK in BILLS OF ADVOCATION for HUGH LATTA STARRS and JAMES WILSON CHALMERS Complainers; against PROCURATOR FISCAL, Linlithgow Respondent; and BILL OF ADVOCATION for PROCURATOR FISCAL, Linlithgow Complainer; against HUGH LATTA STARRS and JAMES WILSON CHALMERS Respondents: _______ |
temporary sheriffs
Complainers: Bovey, Q.C., N. McCluskey; Keegan Smith, Livingstone: Davidson, Q.C., S. Collins; Central Criminal Lawyers, Livingstone
Respondent: The Solicitor General, McCreadie; Crown Agent
Complainer: The Solicitor General, McCreadie; Crown Agent
Respondents: Bovey, Q.C., N. McCluskey; Keegan Smith, Livingstone: Davidson, Q.C.,
S. Collins; Central Criminal Lawyers, Livingstone
11 November 1999
1.On 20 May 1999 the Lord Advocate became a member of the Scottish Executive in terms of section 44 of the Scotland Act 1998. He thereby became subject to section 57(2) of the Act which provides, inter alia, that a member of the Scottish Executive has no power to do any act, insofar as it is incompatible with any of the "Convention rights". Section 126(1) provides that that expression is to have the same meaning as in the Human Rights Act 1998, namely the rights and freedoms set out in various Articles of the Convention for the Protection of Human Rights and Fundamental Freedoms, to which I will refer as "the Convention". As provided in section 129(2), section 57(2) is "to have effect until the time when that Act (the Human Rights Act) is fully in force has it will have effect after that time". In the present proceedings the main point at issue is whether the Lord Advocate has acted in a way which was incompatible with the rights of the accused under Article 6(1) of the Convention to fair trial by "an independent and impartial tribunal" within the meaning of that Article. Section 98 of, and the Sixth Schedule to, the Scotland Act make provision for the resolution of any devolution issue which arises in the course of any proceedings. Under para. 1(d) of the Schedule a "devolution issue" includes a question whether a purported exercise of a function by a member of the Scottish Executive is incompatible with any of the Convention rights.
2.At this point it is convenient for me to set out a brief account of the proceedings in the sheriff court. On 5 May 1999 the complainers Hugh Latta Starrs and James Wilson Chalmers, to whom I refer as "the accused", appeared for trial before Temporary Sheriff Crowe in Linlithgow Sheriff Court on a summary complaint. The trial was commenced but not concluded on that date. The trial diet was adjourned for the completion of the evidence until 8 July. On that date the case did not call before Temporary Sheriff Crowe owing to the fact that the procurator fiscal depute who was allocated to the trial had to deal with other court business. The case called before Temporary Sheriff Alexander who adjourned it to a notional trial diet on 16 July. He also allowed the accused, on cause shown, to raise a "devolution issue" which he continued to the notional diet. No minute under rule 40.5 of the Act of Adjournal (Devolution Issues Rules) 1999 was lodged at that stage. On 16 July the case came before Sheriff Ross, who was a permanent sheriff. Ex proprio motu he adjourned the trial diet until 21 July. By then the accused had lodged and intimated minutes under rule 40.5. The sheriff continued consideration of them to that date. On 21 July the case came before Sheriff Ross once more. Having heard parties on the question whether Temporary Sheriff Crowe should decline to deal with the matters raised in the minute, he held that it was for Temporary Sheriff Crowe to decide whether to decline to do so. On 30 July, having heard the parties, Temporary Sheriff Crowe repelled the submission made on behalf of the accused that he should decline to adjudicate on the devolution issue which they were seeking to raise. He refused to allow the accused to adjust their minutes, and decided the issue against them. He adjourned the diet of trial to a later date. Before the trial was resumed the accused presented their Bills of Advocation which seek to advocate the decision made on 30 July. In her Bill of Advocation the procurator fiscal challenges the decision of Temporary Sheriff Alexander on 8 July to allow a devolution issue to be raised, in respect that he was not the sheriff presiding at the trial of the accused.
In this court Mr Bovey, Q.C. and Mr McCluskey appeared for the first accused, and Mr Davidson, Q.C. and Mr Collins for the second. The Solicitor General appeared for the procurator fiscal and, along with Mr McCreadie, for the Lord Advocate, to whom the devolution issue had been duly intimated in terms of rule 40.5. The present case was heard along with a Bill of Advocation for the procurator fiscal in the case against Gary John Johnstone and David Michael Gunn, in which a similar question in regard to a temporary sheriff was raised.
3.Before coming to that issue, there are three matters with which I can deal shortly at this stage. First, in the light of the decision of the court in H.M. Advocate v David Shield Montgomery and Andrew Coulter dated 14 September 1999, it is no longer in dispute that it was within the discretion of the sheriff to allow the devolution minutes to be adjusted. The discussion in this court embraced the matters which the accused had sought to raise on 30 July. Secondly, there was a question before this court as to whether the accused were able to point to a relevant "act" on the part of the Lord Advocate for the purposes of section 57(2). The primary submission made by Mr Bovey was that the relevant "act" consisted of his instructing the procurator fiscal to continue with the trial. In making that submission Mr Bovey confined himself to what happened after 20 May 1999. Mr Bovey's submissions implied that whether there was an "act" on the part of the Lord Advocate depended on whether he had given an instruction to the procurator fiscal. This was over-exacting, since, while the procurator fiscal has a separate legal persona from the Lord Advocate, he or she represents him in both solemn and summary proceedings, as the Solicitor General accepted. Further, the Solicitor General informed the court that the Lord Advocate expected the procurator fiscal to be bound by the Convention as he is, and that he would not take any point that something which was done by the procurator fiscal was not his act as Lord Advocate and as a member of the Scottish Executive. Accordingly I have no difficulty in accepting that the act of the procurator fiscal in continuing the prosecution, for example on 8 July, constituted an act of the Lord Advocate. In these circumstances I do not require to deal with the secondary submission which was advanced by Mr Bovey that in any event the failure of the Lord Advocate to act, in respect that he had failed to instruct the procurator fiscal to discontinue the prosecution, provided a relevant basis for the raising of a devolution issue.
4.Thirdly, parties were at issue as to whether, as the accused maintained, it was competent for a sheriff other than the trial sheriff - in this case Temporary Sheriff Crowe - to deal with the devolution issue raised by them, and whether it was competent for a separate diet, separate that is from a trial diet, to be appointed to be used for that purpose. Mr Bovey submitted that in view of the admitted pecuniary interest of the temporary sheriff it was inappropriate he should hear the devolution issue. There was no procedural reason why another sheriff should not hear argument on and determine that issue. He pointed out that the devolution issue had nothing to do with the evidence in, or the subject matter of, the trial. It was commonplace for summary cases to call before different sheriffs at various stages of the proceedings. He referred to sections 144, 146 and 148 of the Criminal Procedure (Scotland) Act 1995. The practice of appointing notional trial diets had grown up in order to allow trials to be adjourned where the availability of the trial sheriff was in doubt. He also pointed out that after a finding of guilty in solemn proceedings it was competent for any sheriff to remit an accused for sentencing in the High Court (Borland v H.M. Advocate 1976 S.L.T. (Notes) 12). If the temporary sheriff in the present case had declined to deal with the devolution issue, he could have adjourned the diet to a further trial diet at which the issue could be determined by a permanent sheriff. Alternatively, In view of the terms of rules 40.5(2) and 40.8 of the Act of Adjournal, it would have been proper for a special diet to have been appointed for the purpose.
5.In my view Temporary Sheriff Crowe could not competently have adjourned the case so that another sheriff could deal with the devolution issue. The trial was not yet completed and he could not take that action in mediis rebus. As the Solicitor General put it, the trial sheriff "cannot step aside". The examples founded on by Mr Bovey were not in point. None of them dealt with the position of a trial sheriff who was able to proceed and dispose of a point which had been raised in the course of the trial. There was no warrant for a special diet to deal with the devolution issue. As the court observed in Montgomery and Coulter, a devolution issue has to be determined, whenever it arises, within the procedure for which the 1995 Act makes provision. It was accordingly for Temporary Sheriff Crowe, as the trial sheriff, to determine the devolution issue (notwithstanding the fact that he might be said, in a sense, to have an interest in the outcome: the issue was one which could only arise in proceedings before a temporary sheriff, and any such sheriff would be in a similar position to Temporary Sheriff Crowe). If Temporary Sheriff...
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