Ruddy v Procurator Fiscal, Perth
| Jurisdiction | Scotland |
| Judgment Date | 18 January 2005 |
| Docket Number | No 23 |
| Date | 18 January 2005 |
| Court | High Court of Justiciary |
Appeal Court, High Court of Justiciary
Lord Justice-General (Cullen of Whitekirk), Lord Hamilton, Lord Macfadyen, Lady Cosgrove, Lord Philip
Justiciary - Human Rights - Devolution issue - Summary procedure - Acquiescence - Temporary sheriffs - Not independent and impartial tribunal - Complainers delaying in presenting bills of suspension against conviction and sentence - Whether plea of acquiescence available to the Crown - Whether acquiescence - Scotland Act 1998 (cap 46), sec 57(2) - European Convention on Human Rights and Fundamental Freedoms, Art 6(1)
Martin Robertson was convicted of assault after trial before a temporary sheriff on 10 August 1999, and admonished on 30 September 1999. Seamus O'Dalaigh pled guilty to a contravention of the Road Traffic Act 1988 before a temporary sheriff on 12 October 1999, and on that date was fined and disqualified. Kevin Ruddy pled guilty to contraventions of the Road Traffic Act 1988 before a permanent sheriff on 8 September 1999, and on 20 October 1999 a temporary sheriff made a probation order subject to the performance of community service and disqualified him. They lodged bills of suspension in the High Court of Justiciary on 26 October 2001, 5 December 2001 and 11 February 2002 respectively, praying the court to suspend the convictions and sentences imposed by the temporary sheriffs.
The bills called before the High Court of Justiciary comprising Lady Cosgrove, Lord Kingarth and Temporary Judge Nicholson QC for a hearing, on 11 September 2003. At advising, on 12 September 2003, the court referred the cases to a court of five judges on the grounds that the court might require to consider whether the decision inLochridge v Miller should be reviewed.
The complainer Robertson was convicted of assault after trial before a temporary sheriff on 10 August 1999, and admonished on 30 September 1999. The complainer O'Dalaigh pled guilty to a contravention of the Road Traffic Act 1988 before a temporary sheriff on 12 October 1999, and on that date was fined and disqualified. The complainer Ruddy pled guilty to contraventions of the Road Traffic Act 1988 before a permanent sheriff on 8 September 1999, and on 20 October 1999 a temporary sheriff made a probation order subject to the performance of community service and disqualified him. On 11 November 1999 the court held that a conviction or sentence pronounced by a temporary sheriff was invalid:Starrs v Ruxton. The complainers lodged bills of suspension on 26 October 2001, 5 December 2001 and 11 February 2002 respectively, challenging their convictions and sentences on the grounds that it was incompetent for the respondents to proceed with prosecutions before temporary sheriffs. The respondents maintained that, by reason of their delay in challenging their convictions and sentences, the complainers should be regarded as having acquiesced in them.
Held that: (1) at the time when the complainers were convicted or sentenced, there was no statutory provision to the effect that temporary sheriffs, unlike the Lord Advocate, had no power to act in a way which was incompatible with the complainers' Convention rights: temporary sheriffs simply lacked the quality of independence and impartiality to which the complainers were entitled (paras 10, 12, 47, 56, 57, 75, 76, 80); (2) the law recognised two sub-categories of the category of decisions susceptible to suspension on account of a procedural defect, one sub-category comprising cases where, although there had been a procedural defect which prima facie justified the setting aside of the decision, the decision would be allowed to stand if the person with an interest to have it set aside evinced acceptance of the challengeable decision, and the other comprising cases where the law regarded the procedural defect as so serious as to be incapable of being overcome by the express or implied consent of the accused; the subject was complicated by inconsistent use of terminology; there were no unequivocal criteria by which to recognise a nullity that could not be overcome by implied consent and it was a matter of the policy of the law in each case whether the defect should be regarded as of such a nature or of such gravity as to be incapable of being overlooked, even if the accused might be taken to have consented to its being overlooked (paras 24, 41, 61-66, 73, 80); (3) accused persons could waive their entitlement to have their conviction and sentence determined by a tribunal which offered objective guarantees of independence and impartiality, and this indicated that they could be barred from asserting after the event that the Crown lacked the power to proceed against them, and accordingly the invalidity of a conviction or sentence determined by a temporary sheriff would not fall to be regarded as a fundamental nullity (paras 18, 52, 58, 72, 80); (4) where there had been no waiver, the conviction or sentence of the temporary sheriff would, at the time of the decision, be invalid, but it did not follow that a challenge of the conviction and sentence would be incapable of being barred by acquiescence, because there was no logical reason for distinguishing the waiver of a Convention right during the proceedings from the waiver of an objection to the conviction or sentence on the ground of the infringement of that right, and because the conviction or sentence would not be regarded as a fundamental nullity (paras 26, 48-50, 52, 66-68, 77-79, 80); and (5) following the decision in Starrs v Ruxton, on 11 November 1999, the complainers knew that they had a well-founded basis for challenging their convictions and sentences on the ground that they had been determined by a tribunal which lacked the quality of independence and impartiality to which they were entitled, there were delays in presenting the bills and it was likely that in the cases in which penalties were imposed they were satisfied at least in part without protest, and the complainers should be considered as having acquiesced in their convictions and sentences (paras 33, 53, 54, 69, 70, 80); and bills refused.
Lochridge v MillerUNK 2002 SCCR 628 affirmed.
Millar v DicksonSC 2002 SC (PC) 30 considered.
Cases referred to:
Adams v McKenna (1906) 8 F (J) 79; 5 Adam 106; 43 SLR 868; 14 SLT 305
Advocate (HM) v McDonaldSCUNK 1984 JC 94; 1984 SLT 426; 1984 SCCR 229
Aitkenhead v CuthbertSC 1962 JC 12; 1962 SLT 18; 1961 SLT (Notes) 77
Allan v Lamb (1900) 3 Adam 248; 8 SLT 340
Arthur, PetrUNK 2003 SLT 90; 2003 SCCR 6
Attorney-General's Reference (No 2 of 2001)UNKELR [2003] UKHL 68; [2004] 2 AC 72
Cassidy v Friel 1995 SLT 391
Coventry v DouglasSC 1944 JC 13; 1944 SLT 129
Czajkowski v LewisSC 1956 JC 8; 1956 SLT 33
Hull v HM AdvocateSC 1945 JC 83; 1945 SLT 202
Jones v CarnegieSCUNK 2004 JC 136; 2004 SLT 609; 2004 SCCR 361
Kelly v Smith (1904) 4 Adam 466; 12 SLT 530
Law and Nicol v HM Advocate 1973 SLT (Notes) 14
Lochridge v MillerUNK 2002 SLT 906; 2002 SCCR 628
Love v WilsonUNK 1993 SLT 948; 1993 SCCR 325
Low v Rankine 1917 JC 39; 1917 1 SLT 292
McClure v Douglas (1872) 2 Coup 177
Millar v DicksonUNKSCUNKWLRUNKSCUNK [2001] UKPC D4; 2002 SC (PC) 30; 2001 SLT 988; 2001 SCCR 741; [2002] 1 WLR 1615; [2002] 3 All ER 1041 and 2000 JC 648; 2000 SLT 1111; 2000 SCCR 793
Mills v HM AdvocateUNKSCUNKELRWLR [2002] UKPC D2; 2003 SC (PC) 1; 2002 SLT 939; 2002 SCCR 860; [2004] 1 AC 441; [2002] 3 WLR 1597
Muirhead v McIntosh (1890) 2 White 473
O'Malley v Strathern 1920 JC 74; 2 SLT 251
Porter v MagillUNKELRWLRUNK [2001] UKHL 67; [2002] 2 AC 357; [2002] 2 WLR 37; [2002] 1 All ER 465
R v HM AdvocateUNKSCUNKELRWLR [2002] UKPC D3; 2003 SC (PC) 21; 2003 SLT 4; 2003 SCCR 19; [2004] 1 AC 462; [2003] 2 WLR 317
Shields v DonnellySCUNK 2000 JC 46; 2000 SLT 147; 1999 SCCR 890
Skinner v Adamson (1842) 1 Broun 67
Starrs v RuxtonSCUNK 2000 JC 208; 2000 SLT 42; 1999 SCCR 1052
Storie v FrielUNK 1995 SLT 390; 1993 SCCR 955
Watson v Scott (1898) 25 R (J) 53; 2 Adam 501; 35 SLR 436; 5 SLT 302
Wilson v HillSC 1943 JC 124; 1944 SLT 77
Textbooks etc. referred to:
Trotter, T, Summary Criminal Jurisdiction according to the Law of Scotland (William Hodge, Edinburgh, 1936), p 66
Alison, A, Practice of the Criminal Law of Scotland(Blackwood, Edinburgh, 1833), ii.343
The bills called before the High Court of Justiciary comprising the Lord Justice-General (Cullen of Whitekirk), Lord Hamilton, Lord Macfadyen, Lady Cosgrove and Lord Philip for a hearing, on 21 and 22 September 2004.
At advising, on 18 January 2005-
Lord Justice-General (Cullen of Whitekirk)-
[1] In the light of the decision in Starrs v Ruxton 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, in which it was held that the principle of acquiescence was not incompatible with the right of an accused under Art 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 HM Advocate. 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...
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Kevin Ruddy and Others v Procurator Fiscal, Perth and Another
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