Starrs v Procurator Fiscal, Linlithgow
| Jurisdiction | Scotland |
| Judgment Date | 11 November 1999 |
| Date | 11 November 1999 |
| Court | High Court of Justiciary |
HIGH COURT OF JUSTICIARY
Before the Lord Justice Clerk (Lord Cullen), Lord Prosser and Lord Reed.
Scots law - temporary sheriffs - appointment system destroys impartiality - unlawful to prosecute before such a judge
Article 6 of the European Convention on Human Rights (1953 Cmd 8969) provides that a man charged with a crime is entitled to a hearing before an independent and impartial tribunal.
A judge who had no security of tenure and whose appointment was subject to annual renewal was not "independent" within the meaning of article 6.
It was, therefore, unlawful for the Crown in Scotland to prosecute a man before such a judge, by virtue of the incorporation of the Convention into the Scotland Act 1998.
The High Court of Justiciary, sitting as the Court of Criminal Appeal, so held, passing bills of advocation brought by Mr Hugh Starrs and Mr James Chalmers in respect of a summary complaint by the Procurator Fiscal at Linlithgow, and remitting the case to the temporary sheriff at Linlithgow, with directions to discharge the trial, and to fix a new trial diet to be heard by a permanent sheriff
Section 11 of the Sheriff Courts (Scotland) Act 1971 provides, inter alia:
"(2) Where as regards any sheriffdom - (a) a sheriff is by reason of illness or otherwise unable to perform his duties as sheriff, or (b) a vacancy occurs in the office of sheriff, or (c) for any other reason it appears to the secretary of state expedient so to do in order to avoid delay in the administration of justice in that sheriffdom, the secretary of state may appoint a person (to be known as a temporary sheriff) to act as a sheriff for the sheriffdom…
"(4) The appointment of … a temporary sheriff shall subsist until recalled by the secretary of state."
Section 57 of the Scotland Act 1998 provides, inter alia:
"(2) A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights…"
Article 6 of the European Convention on Human Rights provides, inter alia:
"(1) 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."
Mr Mungo Bovey, QC and Mr Niall McCluskey for Mr Starrs; Mr Neil Davidson, QC and Mr Simon Collins for Mr Chalmers; Mr Colin Boyd, QC, Solicitor General for Scotland, and Mr Robert McCreadie, for Her Majesty's Advocate.
LORD REED said that the Lord Advocate was a member of the Scottish Executive (section 44(1)(c) Scotland Act) and that it was conceded on his behalf that the prosecution of a trial by a procurator fiscal or one of his deputes involved a number of steps that were "acts" within the meaning of section 57(2).
The "Convention rights" to which section 57(2) referred included the rights guaranteed by article 6 (section 126(1) Scotland Act and section 1(1)(a) Human Rights Act 1998).
Although the power of appointment was vested in the Secretary of State for Scotland in practice a crucial role was played by the Lord Advocate.
He decided, with advice from the Scottish Courts Administration, whether there was a requirement for temporary sheriffs; he drew up provisional lists of candidates from the ranks of those who applied; he consulted thereon with the Solicitor-General and the Lord President; and he then advised the Scottish Courts Administration who should be appointed.
There were currently 129 temporary sheriffs, and 110 permanent sheriffs. Temporary sheriffs were in practice appointed for a year at a time; 103 of the current temporary sheriffs were persons who had been appointed in previous years and whose appointments had been renewed for the current year.
The temporary sheriffs performed 25 per cent of the total workload of the sheriff courts.
To be appointed to be a permanent sheriff it was necessary to have been qualified as an advocate or solicitor for ten years, but the qualification for temporary sheriffs was five years.
It was accepted by the Crown that a temporary...
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