Martin Robertson And Seamus O'dalaigh+kevin Ruddy V. Procurator Fiscal Aberdeen+procurator Fiscal Perth
| Jurisdiction | Scotland |
| Judge | Lord Justice General,Lord Hamilton,Lord Macfadyen,Lady Cosgrove,Lord Philip |
| Court | High Court of Justiciary |
| Date | 18 January 2005 |
| Docket Number | XJ724/03 |
| Published date | 18 January 2005 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice General Lord Hamilton Lord Macfadyen Lady Cosgrove Lord Philip
| [2005HCJAC2] Appeal Nos: XJ724/03 XJ725/03 XJ1285/03 OPINION OF THE LORD JUSTICE GENERAL in BILLS OF SUSPENSION by MARTIN ROBERTSON and SEAMUS O'DALAIGH Complainers; against PROCURATOR FISCAL, Aberdeen Respondent; and KEVIN RUDDY Complainer; against PROCURATOR FISCAL, Perth Respondent: _______ |
Complainers: Jackson, Q.C., Mitchell; Blacklock Thorley (Robertson): Davidson, Q.C., Shead; Drummond Miller (O'Dalaigh and Ruddy)
Respondent: Bell, Q.C., A.D.; Crown Agent
18 January 2005
Introduction
[1]In the light of the decision in Starrs v. Ruxton 2000 J.C. 208 the complainers seek the suspension of convictions or sentences imposed on them by temporary sheriffs. The respondents maintain that, by reason of their delay in challenging their convictions and sentences, they should be regarded as having acquiesced in them, and accordingly that the court should refuse to pass the Bills. The complainers maintain that Lochridge v. Miller 2002 S.C.C.R. 628, in which it was held that the principle of acquiescence was not incompatible with the right of an accused under Article 6(1) of the European Convention on Human Rights to an "independent and impartial tribunal" was wrongly decided, in particular in the light of observations in R v. H.M. Advocate 2003 S.C. (P.C.) 21. For this reason these cases have been heard by a court of five judges.
[2]On 10 August 1999 the complainer Robertson was convicted of a charge of assault after trial before a temporary sheriff. Following the conviction the sheriff deferred sentence to await certain reports. On 30 September 1999 the sheriff admonished him. On 26 October 2001 he lodged a bill of suspension challenging his conviction and sentence, in respect that his trial had been presided over by a temporary sheriff and that it was incompetent for the respondent to proceed with his prosecution before that sheriff.
[3]On 12 October 1999 the complainer O'Dalaigh pled guilty before a temporary sheriff to a charge of contravening section 5(1)(a) of the Road Traffic Act 1988. On that date the temporary sheriff fined him £200 and disqualified him from holding or obtaining a driving licence for 15 months. On 5 December 2001 he lodged a bill of suspension challenging his conviction and sentence on substantially the same grounds as the complainer Robertson. It may be added that in the meantime he had appealed against his sentence on the ground that the period of disqualification was excessive and that the sheriff had failed to take proper account of a number of mitigating factors. On 20 January 2000 the Appeal Court reduced the period of disqualification to 12 months. The complainer did not challenge the fine, which he paid.
[4]On 8 September 1999 the appellant Ruddy pled guilty before a permanent sheriff to charges of contravening sections 103(1)(b) and 143(1) and (2) of the Road Traffic Act 1988. On 20 October 1999, after a number of adjournments, a temporary sheriff made a probation order in regard to the first of the charges, and disqualified the complainer for a period of three years. The probation order was subject to a condition as to the performance of 80 hours unpaid work in the community. The temporary sheriff admonished the complainer in respect of the second charge. He ordered the endorsement of the complainer's licence in respect of both charges. It may be noted that in November 2001, in the course of proceedings against the complainer in respect of his alleged breach of the probation order, it was claimed that these proceedings were not competent. On 3 December 2001 the sheriff continued a diet of debate in regard to the matter of competency to await the outcome of a bill of suspension at the instance of the complainer. It appears that a bill of suspension was lodged on his behalf on or about 11 February 2002. Owing to the fact that it did not seek interim suspension of the probation order, a fresh bill was presented on 4 March 2002.
The general submissions for the complainers
[5]Mr. Davidson, Q.C., whose submissions for the complainers O'Dalaigh and Ruddy were adopted by Mr. Jackson, Q.C. for the complainer Robertson, pointed out, under reference to judgments delivered in R. v. H.M. Advocate 2003 S.C. (P.C.) 21, that it was ultra vires of the procurator fiscal, representing the Lord Advocate, to proceed to prosecute these complainers before a temporary sheriff since that was incompatible with their right under Article 6(1). He founded on the statement of Lord Hope of Craighead in Millar v. Dickson 2002 S.C.(P.C.) 30 at paragraph 67:
"Under the devolved system the disqualification of a tribunal whose objective independence or impartiality is vitiated gives rise, at once and at the same time, to a lack of competence on the part of the Lord Advocate".
Mr. Davidson submitted that in these circumstances the proceedings were a nullity. He sought to distinguish waiver from acquiescence, maintaining that it was not possible to acquiesce in what was void. In Lochridge v. Miller the court had fallen into error: it was not possible to argue from waiver to acquiescence. He maintained, under reference to the judgments in Millar v. Dickson, that the requirement of independence and impartiality should not be subordinated to the question whether the accused had had a fair trial. Acquiescence involved a different quality from waiver. It proceeded upon a fiction. If acquiescence was permitted to bar a challenge, the state would be acting contrary to individual rights, and in absence of any unequivocal acceptance. It was significant that in Millar v. Dickson the arguments about waiver had not succeeded. The decisions showed that post-conviction the starting point was different. The complainer no longer had to explain why objection had not been taken. Even if the proceedings were not a nullity, acquiescence was not available to permit the convictions and sentences to stand without the guarantee under Article 6(1). Neither waiver nor acquiescence was of assistance. Mr. Davidson referred to the judgment of Lord Clyde in Millar v. Dickson, and founded on the statements in Porter v. Magill [2002] 2 A.C. 357, at para 87, Mills v. H.M. Advocate 2002 S.C.C.R. 860 at para. 12 and Attorney-General's Reference (No. 2 of 2001) [2004] 2 A.C. 72 at para. 14 that the right of an accused to an independent and impartial tribunal was not only separate but absolute. In these circumstances, he submitted, there was not even room for waiver. The administrative consequences did not matter. Thus, even if the proceedings were not a nullity, such was the importance of the right that it did not assist to show either waiver or acquiescence. It was not possible to dismiss the absence of an independent and impartial tribunal as a mere irregularity.
The invalidity of the convictions and sentences
[6]At the outset it should be noted that, as in Millar v. Dickson, at the time when the complainers were convicted or sentenced section 6 of the Human Rights Act 1998 was not yet in force. Accordingly, there is no question of the temporary sheriffs having been in breach of subsection (1) of that section. Thus the legal effect of the complainers' convictions and sentences requires to be considered in the light of section 57(2) of the Scotland Act 1998, in conjunction with the right of an accused under Article 6(1) of the Convention to an independent and impartial tribunal.
[7]While it is not in doubt that, apart from any question of waiver or acquiescence, a conviction or sentence of a temporary sheriff falls to be regarded as invalid, it is important to be clear as to the reasoning which leads to that result. The analysis of that basic case may be significant in determining the scope for variation of the result by reason of waiver or acquiescence.
[8]It was ultra vires of the Crown to prosecute an accused before a temporary sheriff because the temporary sheriff did not constitute an independent and impartial tribunal. It follows that a conviction or a sentence following upon such ultra vires prosecution is invalid. The Lord Advocate's lack of power to prosecute in such circumstances is underlined by a passage in the judgment of Lord Rodger of Earlsferry in R v H.M. Advocate at paragraph 126, where he observed, with reference to section 57 of the Scotland Act 1998:
"By virtue of subsection (2) the Lord Advocate actually has no power to do an act so far as it is incompatible with any of the appellant's Convention rights. To that extent any such 'act' of the Lord Advocate is invalid: it is not truly an 'act' at all but merely a 'purported' act. This is reflected in the language of paragraph 1(d) of Schedule 6".
[9]In Millar v. Dickson at para. 67, to which I have already referred, Lord Hope of Craighead said:
"The decision in Starrs v. Ruxton leads therefore to this result. Temporary sheriffs, viewed objectively, lacked the quality of independence and impartiality to which all accused persons are entitled under art 6(1) of the Convention. This lack of independence and impartiality, however slight, was sufficient to disqualify temporary sheriffs from taking any part in the determination of criminal charges at the instance of prosecutors acting under the authority of the Lord Advocate. It also made it unlawful for prosecutors to conduct proceedings in the Sheriff Court under the authority of the Lord Advocate with a view to the determination of criminal charges by temporary sheriffs in that court. The Lord Advocate had no power to conduct those proceedings before them in that court, as this was incompatible with the accused's Convention right: sec 57(2) of the 1998 Act. The proceedings were thus vitiated from the moment when they were brought before the temporary sheriffs for their determination. The Convention right and the statutory fetter which the 1998 Act has imposed on the powers of the Lord...
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