Millar v Dickson; Payne and Others v Heywood

JurisdictionScotland
Judgment Date03 August 2000
Date03 August 2000
Docket NumberNo 79
CourtHigh Court of Justiciary

JC

Lord Prosser, Lord Johnston and Lord Cowie

No 79
MILLAR
and
DICKSON

Procedure—Summary procedure—Waiver—Devolution issue—Trial before independent and impartial tribunal—Conviction and/or sentence occurring before High Court's decision that temporary sheriffs were not independent and impartial tribunal—Pannels' solicitors not objecting to temporary sheriffs—Whether pannels waived rights under European Conviction—Whether conviction and/or sentences should be treated as de facto valid—European Convention on Human Rights, art 6(1)1

Four complainers, who had legal representation at first instance, sought the quashing of their convictions and/or sentences arising out of unrelated proceedings in the sheriff court on the ground that these orders were made in prosecutions before temporary sheriffs after 20 May 1999 (but before the decision of the High Court of Justiciary inStarrs v Ruxton; Ruxton v StarrsSC2000 JC 208 was issued on 12 November 1999) and were accordingly the result of the Lord Advocate's act in prosecuting them in breach of their right to trial before an independent and impartial tribunal under art 6(1) of the European Convention on Human Rights. A fifth complainer, who had also had legal representation, sought suspension of his conviction and sentence prior to 20 May 1999 on the basis that his common law rights had been breached by his trial taking place before a temporary sheriff. The Crown opposed the first four bills on the grounds that the complainers had waived their rights under art 6(1) by not taking the point in bar of trial and that, in any event, the temporary sheriffs' acts in convicting and/or sentencing the complainers prior to 12 November 1999 were those of a de facto judge and should be treated as valid.

Held (1) that without deeming the complainers or their solicitors to know the law as it was determined in Starrs v Ruxton; Ruxton v Starrs, they had to be deemed to have known that the Scotland Act 1998 had changed the law and that new rights were in issue (p 659D); (2) that that deemed knowledge of the new legislation excluded any contention that the law could have been assumed to be as it previously had been, and there was nothing which made it “reasonable” for the complainers' solicitors to have refrained from taking the point under art 6(1), other than waiver—a decision that it would not be in their clients' interests to take any point which the new legislation might have made arguable (pp 659G–660A); (3) that upon the basis of deemed knowledge of the law, such a decision was implicit in the solicitors' silence when the cases came before the temporary sheriffs and, accordingly, there was tacit waiver of the complainers' right under art 6(1) (p 660B, E–F); (4) that the doctrine of the validity of acts of de facto judges had no application to the present situation where what was challenged was the ultra vires act of the Lord Advocate in prosecuting the

complainers (p 663F–G); and (5) that the general defect in independence and impartiality identified in Starrs v Ruxton; Ruxton v Starrs did not result in fundamental nullity as the law stood since 20 May 1999 and, since it was only in certain categories of specific involvement (none of which was suggested in this case) that an absence of independence and impartiality could result in “automatic” disqualification or nullity prior to that date, the fifth complainer's common law rights had not been violated (p 664G–I); and bills refused.

Observed that if art 6(1) had direct application as a part of Scots law and a conviction or sentence were to be challenged on the basis that what the court had done was ultra vires, other questions might arise and it might be that the de facto judge doctrine, or something analogous to it, could provide a basis for argument (p 663H).

David Cameron Millar brought a bill of advocation in the High Court of Justiciary against D J Dickson, procurator fiscal, Elgin, praying the court to quash his conviction and sentence which resulted from his trial on indictment which took place after 20 May 1999.

Paul Stewart, Kerry Payne and Joseph Tracey brought bills of suspension in the High Court of Justiciary against Barry Heywood, procurator fiscal, Dundee, praying the court to suspend their convictions and/or sentences in separate proceedings on summary complaints. Stewart had been found guilty after trial before 20 May 1999 but sentenced after that date. Payne had pleaded guilty and been sentenced after 20 May 1999 and Tracey had been found guilty after trial and sentenced after 20 May 1999.

David Ledger Marshall brought a bill of suspension in the High Court of Justiciary against Cameron Ritchie, procurator fiscal, Stirling, praying the court to suspend his conviction and sentence which resulted from his trial on summary complaint, the proceedings being completed before 20 May 1999.

Cases referred to:

Adams v AdamsELR [1971] P 188

Aldridge (In re) (1893) 15 NZLR 361

Anderson v HM AdvocateSC 1996 JC 29

Bordeaux Vineries Case 4 August 1993, unreported

Brown v Neilson (1906) 5 Adam 149

Bulut v Austria Reorts of Judgments and Decisions 1996–II, p 347; 24 EHRR 84

Campbell and Fell v United Kingdom Series A No 80 (1984); 7 EHRR 165

Clancy v CairdSC 2000 SC 441

Deweer v BelgiumHRC Series A No 35 (1980); 2 EHRR 439

Dirom v Howdle 1995 SLT 1016

Gibbs v RuxtonSC 2000 JC 258

Gregory v United Kingdom (Application No 22299/93) (1997); 25 EHRR 577

H v BelgiumHRC Series A No 127 (1987); 10 EHRR 339

Hakansson and Sturesson v Sweden Series A No 171–A (1990); 13 EHRR 1

Locabail (UK) Ltd v Bayfield Properties LtdUNK [2000] 1 All ER 65

McGonnell v United Kingdom (Application No 28488/95) (8 February 2000) [2000] TLR 119

McGowan v Ritchie 1998 SLT 324

Norton v Shelby County 118 US 425 (1886)

Oberschlick v AustriaHRC Series A No 204 (1991); 19 EHRR 389

Percy v HallELR [1997] QB 924

Pfeifer and Plankl v AustriaHRC Series A No 227 (1992); 14 EHRR 692

R v Bedford Level CorporationENR (1805) 56 East 356

R v Governor of Brockhill Prison, ex parte Evans (No 2) [1999] QB 1043

Saunders v United Kingdom Reports of Judgments and Decisions 1996–VI, p 2044; 23 EHRR 313

Scadding v LorantENR (1851) 3 HLC 418

Starrs v Ruxton; Ruxton v StarrsSC2000 JC 208

State v Carroll (1871) 38 Conn 449, 9 Am 409

Taylor v Skrine 3 Brevard 516

Werner v Austria (Application No 21835/93) (1997); 26 EHRR 310

Textbook referred to:

Wade and Forsyth, Administrative Law (7th ed), pp 326–328

The bills called before the High Court of Justiciary, comprising Lord Prosser, Lord Johnston and Lord Cowie, for a hearing.

At advising, on 3 August 2000—

LORD PROSSER

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, 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 sec 57(2) of the Scotland Act 1998 in carrying out his functions in connection with criminal prosecution, and 11 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 art 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 art 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 art 6(1) of the Convention.

[4] In relation to these cases, the Solicitor-General on behalf of the...

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9 cases
  • Millar v Dickson; Payne and Others v Heywood
    • United Kingdom
    • Privy Council
    • 24 July 2001
    ...complaints were resisted by the Solicitor General on behalf of the respondents, and were rejected by the High Court on 3 August 2000: Millar v Dickson 2000 JC 5 The issues raised by each of the accused before the High Court were devolution issues within paragraph 1(d) of Schedule 6 to the ......
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    • United Kingdom
    • High Court of Justiciary
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    ...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 pri......
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    • United Kingdom
    • Privy Council
    • 24 July 2001
    ...complaints were resisted by the Solicitor General on behalf of the respondents, and were rejected by the High Court on 3 August 2000: Millar v Dickson 2000 JC 5 The issues raised by each of the accused before the High Court were devolution issues within paragraph 1(d) of Schedule 6 to the ......
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    • United Kingdom
    • Court of Appeal (Civil Division)
    • 14 May 2002
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