Kenneth Dickson+iain Mcnaughton V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice General,Lord Osborne,Lord Macfadyen,Lord Nimmo Smith,Lord Penrose |
| Neutral Citation | [2007] HCJAC 65 |
| Court | High Court of Justiciary |
| Date | 15 November 2007 |
| Docket Number | XC467/03 |
| Published date | 15 November 2007 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice General Lord Osborne Lord Macfadyen Lord Nimmo Smith Lord Penrose | [2007] HCJAC 65 Appeal Nos: XC467/03 XJ141/03 OPINION OF THE LORD JUSTICE GENERAL in APPEAL by KENNETH ROBERT DICKSON Appellant; against HER MAJESTY'S ADVOCATE Respondent: and BILL OF SUSPENSION by IAIN McNAUGHTON Complainer; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Act: Shead, C. Mitchell; Drummond Miler (Appellant and Complainer)
Alt: Stewart QC, A.D.; Crown Agent: Moynihan, Q.C. on behalf of the Advocate General; OSAG (Respondent)
15 November 2007
The background
[1] On 10 March 1999 the appellant was convicted on indictment at Hamilton Sheriff Court of assault to severe injury and permanent disfigurement. The sheriff who presided at his trial was a temporary sheriff appointed under section 11 of the Sheriff Courts (Scotland) Act 1971. On the same day the appellant was sentenced by that sheriff to 18 months imprisonment.
[2] On 3 March 1999 the complainer was convicted on summary complaint at Paisley Sheriff Court of a contravention of section 5(1)(a) of the Road Traffic Act 1988; he had previously pled guilty to a contravention of section 47(1) of that Act. The sheriff who constituted that tribunal was a temporary sheriff appointed under section 11 of the 1971 Act. Following conviction the sheriff fined the complainer £300 in respect of the contravention of section 5(1)(a) and admonished him in respect of the contravention of section 47(1). He also disqualified the complainer from holding or obtaining a driving licence for one year and caused his licence to be endorsed.
[3] The appellant on certain grounds appealed against both his conviction and sentence. On 12 October 2001 the court allowed to be received additional grounds of appeal for the appellant, which grounds, under reference to both the Human Rights Act 1998 and the Scotland Act 1998, challenged his conviction on the basis that the temporary sheriff was not an "independent and impartial tribunal" within the meaning of Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. A relative devolution minute was also lodged. The appellant had earlier in 2001 tabled a ground of appeal that the sentence imposed on him was, on the same basis, incompetent. On 1 November 2005 the appellant abandoned his appeal against conviction. He maintains his appeal against sentence on the basis mentioned.
[4] The complainer appealed by stated case against his conviction. After sundry procedure that appeal was, on 19 January 2000, refused. On 5 July 2000 the complainer presented a Bill of Suspension in which he challenged his conviction and sentence on the basis that the temporary sheriff was not an "independent and impartial tribunal" within the meaning of Article 6(1). A relative devolution minute was also lodged. On 9 July 2002 the complainer paid in full the fine imposed on him. The period of disqualification had also by then expired.
[5] After sundry procedure the processes initiated by the appellant and the complainer were associated, together with an appeal taken by another party who has since died. An issue of acquiescence having been raised by the Crown, parties were, in August 2006, heard on that issue. The court, on 11 October 2006, repelled the plea of acquiescence in each case.
[6] On 20 May 1999 section 44(1)(c) of the Scotland Act came into force. On that event the Lord Advocate became a member of the Scottish Executive and section 57(2) of the Act became applicable to him. The Human Rights Act came into force on 2 October 2000. In Starrs v Ruxton 2000 JC 208 the High Court held that a temporary sheriff appointed under section 11 of the Sheriff Courts (Scotland) Act 1971 did not constitute an "independent and impartial tribunal" within the meaning of Article 6(1). Although that case gave rise to a devolution issue, no appeal was taken against that decision. In the present proceedings no challenge has been mounted by any party to its correctness. Although, as presently constituted, this court would be entitled to review Starrs v Ruxton, in the absence of any challenge it would be inappropriate for us to do so. It must accordingly be treated, for present purposes, as good law.
[7] For the purposes of this hearing a bench of five judges has been constituted. That, we were advised, was because the appellant and the complainer (whom I shall collectively refer to as "the appellants") intended to rely on Singh v Secretary of State for the Home Department 2004 SC 416 - where a bench of three judges in the Court of Session, refusing an appeal from the Lord Ordinary (Lord Mackay of Drumadoon), held that a decision made on 21 November 1997 by a Special Adjudicator appointed by the Lord Chancellor failed the common law test of freedom from apparent bias; certain observations were also there made about the relationship between the common law and Article 6. The Crown, it was understood, might challenge the correctness of Singh or at least of the observations made in the Opinion of the Court delivered by Lord Kirkwood. On the other hand, observations made by Lord Prosser in Millar v Dickson 2000 JC 648 at paras [40] - [41] might be conceived to be to a different effect.
Submissions for the appellants
[8] Mr. Shead for the appellants made two principal submissions - (1) that, on a sound construction of the Human Rights Act, the provisions of that statute, in so far as relevant to disposals by the temporary sheriffs in March 1999, were retrospective and that the requirements of the Convention had accordingly direct effect upon these disposals and (2) that, in any event, the common law of Scotland as at 1999 guaranteed a right to a fair hearing before an independent and impartial tribunal and, neither appellant having been dealt with by such a tribunal, the disposals in question should be quashed. He also made submissions in relation to the position of the Crown under the Scotland Act.
[9] In introducing his submissions Mr Shead observed that the United Kingdom Government had signed the European Convention in 1950 and thereby undertaken to secure the rights and freedoms therein mentioned. Since 1966 citizens of the United Kingdom had had the right to petition the European Court of Human Rights individually. The British courts in their domestic decisions had sought to take account of the international obligations of the State - as, for example, in McLeod v H.M. Advocate (No. 2) 1998 JC 67. The Human Rights Act, he argued, had essentially provided a mechanism by which pre-existing rights could be enforced; it was essentially concerned with remedy. The Article 6 rights of each of the appellants existed in international law independently of the Human Rights Act and could not be compromised. Against that background it was unsurprising that Parliament, by enacting the Human Rights Act, had provided that Convention rights could be relied on in proceedings where the other party was a public authority. There being no dispute that Starrs v Ruxton was correctly decided, there had been a clear violation of Article 6(1) and the disposals by the temporary sheriffs could not stand.
[10] In developing his first submission Mr Shead referred to R v Lambert [2002] 2 AC 545. Although the majority of their Lordships had been of opinion that the Human Rights Act was not retrospective in proceedings on appeal from a decision made prior to 2 October 2000, the result favoured by Lord Steyn was to be preferred - although counsel did not rely on Lord Steyn's interpretation of section 6(1) of the Act, the better argument being that founded on section 7 (as read with section 22(4)). It was significant that Lord Hope of Craighead (particularly at para. 107) had distinguished between a breach by the court (as in Lambert) and a breach by the prosecuting authority (as here). Lord Hope had in R v Kansal (No. 2) [2002] 2 AC 69 revised his view on the correct interpretation of the statute, although the majority view in that case had been to adhere, as a matter of precedent, to the decision in Lambert. The views of Lord Steyn and of Lord Lloyd of Berwick in Kansal were also important and persuasive. Reference was also made to the views of Lord Woolf C.J. in R v Benjafield, R v Rezvi [2003] 1 AC 1099 at paras. 49-51. Section 7(1)(b) was concerned with "any legal proceedings", including where, as here, a Convention right was used defensively. Section 7(6) defined "legal proceedings" inclusively, not exhaustively. The retrospective effect of section 22(4) extended to the appellate stage of proceedings which had been disposed of at first instance before the commencement of the Act. Here the act retrospectively rendered unlawful was the prosecutor's act in insisting upon a determination of the case by a temporary sheriff. The remedy available under section 8 of the Human Rights Act was the quashing of the disposals - the remedy which the common law afforded where justice had not been seen to be done (Bradford v McLeod 1985 SCCR 379). That remedy was also that which was inevitable where there had been, under the Scotland Act, a breach by the prosecutor (see Millar v Dickson 2002 SC (PC) 30). National courts should, in so far as they were free to do so, seek to act in a manner consistent with the obligations of the State binding in international law (R v Lyons [2003] 1 AC 976, especially per Lord Bingham of Cornhill and Lord Hoffman). Reference was also made to In re McKerr [2004] 1 WLR 807, where Lords Steyn and Nicholls of Birkenhead had drawn a distinction between section 6 and section 22 and Lord Rodger of Earlsferry had emphasised the significance of international obligations for the development of the common law and of statutory enactments. The retrospective force of section 22(4) had again been emphasised by Lord Hope in Wilson v First County Trust Limited (No. 2) [2004] 1 AC 816 at para. 90; reference was...
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