Millar v Dickson; Payne and Others v Heywood

JurisdictionUK Non-devolved
CourtPrivy Council
JudgeLord Bingham of Cornhill,Lord Nicholls of Birkenhead,Lord Hope of Craighead,Lord Clyde
Judgment Date24 Jul 2001
Neutral Citation[2001] UKPC D4
Docket NumberNO 2,DRA. No. 5 of 2000

[2001] UKPC D4

Privy Council

Present at the hearing:-

Lord Bingham of Cornhill

Lord Nicholls of Birkenhead

Lord Hope of Craighead

Lord Clyde

Lord Scott of Foscote

DRA. No. 5 of 2000

DRA. Nos. 6, 7, 8 and 9 of 2000

(1) David Cameron Millar
Procurator Fiscal, Elgin
(2) Kerry Payne
(3) Paul Stewart
(4) Joseph Tracey
Procurator Fiscal, Dundee
Lord Bingham of Cornhill

Each of these four appellants ("the accused") was the subject of criminal proceedings before a temporary sheriff between 20 May 1999 and 11 November 1999. Mr Millar was convicted on indictment of drug offences in the Sheriff Court at Elgin on 27 August 1999 and was sentenced on the same day to a term of imprisonment. Ms Payne pleaded guilty to assault and other offences in the Sheriff Court at Dundee on 16 September 1999 and was sentenced to a term of imprisonment on 12 October 1999. Mr Stewart was summarily convicted of driving offences in the Sheriff Court at Dundee on 16 February 1999, but appeared in the Sheriff Court again after 20 May 1999, on 28 June 1999, and was then sentenced to non-custodial penalties. Mr Tracey was summarily convicted of offensive weapon and assault offences in the Sheriff Court at Dundee on 23 September 1999 and was sentenced to a term of imprisonment on 8 November 1999. All the accused were represented by solicitors.


It was on 20 May 1999 that section 44(1)(c) of the Scotland Act 1998 came into force. The Lord Advocate thereupon became a member of the Scottish Executive. As such, by virtue of section 57(2) of the Act, he had no power to do any act incompatible with any of the Convention rights defined in section 1 of the Human Rights Act 1998 (unless the act in question fell within section 57(3)).


It was on 11 November 1999 that the High Court (the Lord Justice-Clerk (Cullen), Lord Prosser and Lord Reed) gave its decision in Starrs v Ruxton, Ruxton v Starrs 2000 JC 208, holding that temporary sheriffs were not an "independent and impartial tribunal" within the meaning of article 6(1) of the European Convention on Human Rights.


Before the High Court and again before the Board the accused made the same very simple complaint: that the Lord Advocate (and thus the respondent procurators fiscal who conducted the prosecutions) acted incompatibly with the convention right of the accused under article 6(1) by prosecuting them before temporary sheriffs who were not an independent and impartial tribunal; that such proceedings were accordingly ultra vires and null; and that the convictions and sentences of Millar, Payne and Tracey and the sentence of Stewart should accordingly be quashed. These 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 648.


The issues raised by each of the accused before the High Court were devolution issues within paragraph 1(d) of Schedule 6 to the Scotland Act 1998, namely "a question whether a purported or proposed exercise of a function by a member of the Scottish Executive [the Lord Advocate] is, or would be, incompatible with any of the Convention rights". On 15 August 2000 the High Court gave leave to the accused to appeal against its determination of those issues, and the accused come before the Board by virtue of section 98 of and paragraph 13(a) of Schedule 6 to that Act. The appeals are of obvious practical importance since these cases have been selected for decision out of a significant number of other cases brought before temporary sheriffs between 20 May and 11 November 1999. The sentences imposed upon the accused have been suspended pending final resolution of these issues.

The High Court's decision in Starrs


Before the High Court and again before the Board the Solicitor General accepted the correctness of the decision in Starrs and accordingly accepted, on the basis of that decision, that the temporary sheriffs were not at the material time "an independent and impartial tribunal": see 2000 JC 648 at 651B, paragraph 4. It follows that the correctness of that decision is not open to review before the Board. It is nonetheless necessary to summarise its effect since the present appeals are based upon it.


The accused Starrs and Chalmers appeared before a temporary sheriff on a summary complaint on 5 May 1999, when their trial began but was not concluded. The trial diet was adjourned to 8 July 1999, and on that date was further adjourned and leave was given to the accused to raise a devolution issue whether the procurator fiscal acted compatibly with article 6 of the convention in prosecuting them before a temporary sheriff. When the devolution issue came before the temporary sheriff he decided it against them. The accused challenged the temporary sheriff's decision in the High Court. The issue in that court was described by the Lord Justice-Clerk in this way ( 2000 JC 208 at 213C):

"I come then to the main issue which was debated at some length, namely whether a temporary sheriff such as Temporary Sheriff Crowe, was an 'independent and impartial tribunal' in the sense of art 6(1) of the Convention. I should, of course, make it clear that this point does not involve any reflection whatsoever on his conduct. The point is of general importance, not only for its potential effect in individual cases but also for any future consideration of the terms of the relevant legislation and any appointments made thereunder."


In the course of their judgments the Lord Justice-Clerk and Lord Reed reviewed the legislation governing the appointment of temporary sheriffs and also some additional information (not previously public knowledge: page 215A) concerning the recent practice of the Lord Advocate in making appointments of temporary sheriffs: see pages 213D-219A, 235B-241A. The Lord Justice-Clerk drew attention in particular to the fact that temporary sheriffs were appointed for one year only and were subject to recall during that period at the instance of the Lord Advocate, perhaps without the possibility of challenge: see pages 214C, 216E, 218E, 226G. The Lord Justice-Clerk quoted the material terms of article 6(1) of the convention:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law …"

He made extensive reference to Strasbourg and other authority on the meaning of "an independent and impartial tribunal": see pages 219-226. He expressed a number of conclusions:

  • (1) "Rather than a control over numbers, the use of the one year term suggests a reservation of control over the tenure of office by the individual, enabling it to be brought to an end within a comparatively short period. This reinforces the impression that the tenure of office by the individual temporary sheriff is at the discretion of the Lord Advocate. It does not, at least prima facie, square with the appearance of independence." (page 228)

  • (2) "There is no question whatever as to the integrity and fair mindedness with which the Lord Advocate has acted. However, what I have to consider is whether the basis on which the temporary sheriff holds office is truly independent, that is independent of the executive, whether it presents an appearance of such independence, and whether and to what extent the lack of the former gives rise to the appearance of lack of impartiality. I do not have difficulty with the fact that temporary sheriffs are appointed by the executive, following upon their selection by the Lord Advocate. Counsel did not contend to the contrary. However, appointment by the executive is consistent with independence only if it is supported by adequate guarantees that the appointed judge enjoys security of tenure. It is clear that temporary sheriffs are appointed in the expectation that they will hold office indefinitely, but the control which is exercised by means of the one year limit and the discretion exercised by the Lord Advocate detract from independence." (page 229)

  • (3) "This line of reasoning seems to me to be persuasive and to support the view that even when full allowance is made for the matters relied upon by the Solicitor General, the power of recall under sec 11(4) is incompatible with the independence and appearance of independence of the temporary sheriff. For the reasons which I have already indicated, I regard the one year limit to the appointment as being a further critical factor arriving at the same result … I also accept that in this case there is a link between perceptions of independence and perceptions of impartiality, of the kind which has been categorised in Canada as institutional impartiality. I consider that there is a real risk that a well-informed observer would think that a temporary sheriff might be influenced by his hopes and fears as to his prospective advancement. I have reached the view that a temporary sheriff, such as Temporary Sheriff Crowe, was not an 'independent and impartial tribunal' within the meaning of art 6(1) of the Convention." (page 230)

  • (4) "In the whole circumstances, therefore, I am of opinion that in proceeding with the trial the Lord Advocate, as represented by the procurator fiscal, acted incompatibly with the right of the accused under art 6(1) to trial by 'an independent and impartial tribunal'." (page 231).


Lord Prosser was in complete agreement. His conclusions were expressed as follows:

  • (1) "the answer to the question of whether a person has had a hearing 'by an independent and impartial tribunal established by law' when the tribunal is a temporary sheriff holding office at the pleasure of the Lord Advocate, with no security of tenure, can in my opinion...

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