Starrs v Ruxton
| Jurisdiction | Scotland |
| Judgment Date | 11 November 1999 |
| Neutral Citation | 1999 SCCR 1052 |
| Date | 11 November 1999 |
| Docket Number | No 29 |
| Court | High Court of Justiciary |
JC
LJ-C Cullen, Lord Prosser and Lord Reed
Procedure—Summary procedure—Devolution issue—Pannels raising devolution issue in respect of their trial proceeding before temporary sheriff after trial had commenced—Different temporary sheriff from trial sheriff allowing devolution issue to be raised—Whether competent for sheriff other than trial sheriff to allow devolution issue to be raised—Whether temporary sheriff “independent and impartial tribunal”—Whether Lord Advocate bound to ensure compliance with European Convention in respect of procurator fiscal's continuing with trial—Sheriff Courts (Scotland) Act 1971 (cap 58), sec 11—Human Rights Act 1998 (cap 42), sec 6(2)—Scotland Act 1998 (cap 46), sec 57(2) and (3)—European Convention on Human Rights, art 6(1)1
Section 11(2) of the Sheriff Courts (Scotland) Act 1971 enacts that 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 temporary sheriff to act in the sheriffdom. Subsection (4) enacts, inter alia, that the appointment of a temporary sheriff shall subsist until recalled by the Secretary of State. Section 57(2) of the Scotland Act 1998 enacts, inter alia, that a member of the Scottish Executive (including the Lord Advocate: sec 44(1)(c)) has no power to do any act so far as it is incompatible with certain provisions of the European Convention on Human Rights. Subsection (3) enacts,inter alia, that subsec (2) does not apply to an act of the Lord Advocate in prosecuting any offence which, because of sec 6(2) of the Human Rights Act 1998, is not unlawful by virtue of sec 6(1). Section 6(1) of the Human Rights Act 1998 enacts that it is unlawful for a public authority to act in a way which is incompatible with certain European Convention rights and subsec (2) enacts that subsec (1) does not apply if, as the result of one or more provisions of primary legislation, the public authority could not have acted differently. Article 6(1) of the European Convention on Human Rights provides,inter ailia, that in the determination of any charge against him, everyone is entitled to a fair and public hearing by an independent and impartial tribunal.
The pannels were charged on a summary complaint. Their trial commenced before Temporary Sheriff Crowe on 5 May 1999 but not being completed, it was adjourned until 8 July. On that date, owing to other business occupying the procurator fiscal depute who was conducting the pannels' trial, another temporary sheriff adjourned the trial to a notional diet on 16 July and, holding that cause had been shown, he allowed the pannels to raise a devolution issue which he continued to the notional trial diet. At the notional diet the pannels' case called before a permanent sheriff who ex proprio motu adjourned the trial diet to 21 July and continued consideration of the devolution issue to that date. On 21 July the same permanent sheriff having heard argument on whether Temporary Sheriff Crowe should decline to deal with the devolution issue, held that it was for Temporary Sheriff Crowe to decide whether or not to decline jurisdiction. On 30 July Temporary Sheriff Crowe repelled the pannels' objection to his determining the devolution issue, refused leave to
the pannels to adjust their minutes raising the devolution issue and rejected the pannels' challenge to his presiding at the pannels' trial. Before the trial resumed, the pannels presented bills of advocation to the High Court of Justiciary to challenge Temporary Sheriff Crowe's decision on 30 July and the procurator fiscal sought advocation of the temporary sheriff's decision on 8 July to allow the devolution issue to be raised.The pannels argued that their right to a fair trial under art 6(1) of the European Convention was infringed by the fact that temporary sheriffs were not an independent and impartial tribunal in respect that,inter alia, their appointments were for one year at a time, they were liable to recall under sec 11(4) of the 1971 Act at the pleasure of the Lord Advocate and they were not precluded from continuing to practise while they were available to serve on the bench. The Crown submitted, inter alia, that the Lord Advocate's obligation under sec 57(2) was disapplied by subsec (3) in respect that the procurator fiscal (for whose acts the Lord Advocate accepted responsibility) could not have done other than continue with the pannels' trial in the public interest.
Held (1) that a devolution issue had to be determined within the procedure for which the Criminal Procedure (Scotland) Act 1995 made provision, whenever it arose and, accordingly, it was for Temporary Sheriff Crowe, as the trial sheriff, to determine the devolution issue (pp 213A–B, 231E, 257G); (2) that it followed that on 8 July the other temporary sheriff was not entitled to allow the devolution issue to be raised as that was a matter for Temporary Sheriff Crowe to determine (pp 213C, 231E, 257G); (3) that the fact that temporary sheriffs were permitted to remain in practice did not create the appearance of lack of impartiality (pp 230F, 231E, 255C); but (4) that temporary sheriffs were not an “independent and impartial tribunal” within the meaning of art 6(1): both the power of recall under sec 11(4) of the 1971 Act and the one-year limit on temporary sheriffs' appointments were incompatible with the independence and the appearance of independence of temporary sheriffs (pp 230C–E, 231E, 243G, 244A, 248C, 252C); and (5) that sec 6(2) of the Human Rights Act 1998 was plainly intended to refer to an act of the public authority which was required by primary legislation and as no such legislation required the procurator fiscal to continue with the pannels' trial, sec 57(3) did not relieve the Lord Advocate of his duty to comply with sec 57(2) (pp 231B–C, 231E, 255I–256B); and billspassed.
Opinion reserved (per the Lord Justice-Clerk (Cullen) and Lord Reed) whether the present system of appointing temporary sheriffs for a one-year period without there being any particular problem of a temporary nature identified in any particular sheriffdom but simply to supplement permanent sheriffs, was ultra viressec 11(2) of the 1971 Act (pp 228A, 239D–E).
Observed (per Lord Reed) that it was essential to treat with caution decisions concerned with other constitutional instruments because, while it might be tempting to look for assistance to decisions emanating from legal systems belonging to the same tradition as Scots law, it was important to remember that the Convention jurisprudence had been influenced principally by the traditions of other European legal systems (p 248G–H).
Hugh Latta Starrs and James Wilson Chalmers brought bills of advocation to their Lordships in the High Court of Justiciary praying for recall of the decision of Temporary Sheriff Crowe dated 30 July 1999 whereby he rejected the pannels' minutes raising a devolution issue in terms of r 40.5 of the Criminal Procedure Rules 1996. The pannels maintained that the continuation of their trial before a temporary sheriff violated their rights under art 6(1) of the European Convention on Human Rights.
Linda M Ruxton, procurator fiscal, Linlithgow brought a bill of advocation to their Lordships in the High Court of Justiciary praying for recall of the decision of Temporary Sheriff Alexander dated 8 July 1999 whereby he allowed the pannels, on cause shown, to raise a devolution issue.
The terms of the bills are sufficiently set forth in the opinion of the Lord Justice-Clerk (Cullen). Intimation of the pannels' minutes having been given to the Lord Advocate under r40.5(2), the Lord Advocate was represented before the High Court of Justiciary.
Cases referred to:
Advocate (HM) v MontgomerySC 2000 JC 111
Advocate (HM) v RobbSC 2000 JC 127
Attorney General of Quebec v LippéUNK [1991] 2 SCR 114
Borland v HM Advocate 1976 SLT (Notes) 12
Boyle v HM AdvocateSC 1976 JC 32
Bryan v United Kingdom Series A No 335–A (1995); 21 EHRR 342
Campbell and Fell v United KingdomHRC Series A No 80 (1984); 7 EHRR 165
Çiraklar v Turkey (28 October 1998) Reports of Judgments and Decisions 1998–VII
De Cubber v BelgiumHRC Series A No 86 (1984); 7 EHRR 326
Dudgeon v United KingdomHRC Series A No 45 (1981); 4 EHRR 149
Dupuis v Belgium Application No 1277/87 (1998) 57 DR 196
Eccles, McPhillips and McShane v Ireland Application No 12839/87 (1988) 59 DR 212
Engel v The NetherlandsHRC Series A No 22 (1976); 1 EHRR 647
Findlay v United Kingdom (25 February 1997) Reports of Judgments and Decisions 1997–I 24 EHRR 221
Incal v Turkey (9 June 1998) Reports of Judgments and Decisions 1998–IV
Mackay and Esslemont v Lord AdvocateSC 1937 SC 860
MacLeod v WilliamsonSC 1993 JC 25
Piersack v BelgiumHRC Series A No 53 (1982); 5 EHRR 169
Plahte v Norwegian State 19 December 1997, unreported
Pullar v HM AdvocateUNK 1996 SCCR 755
R v GénéreuxUNK [1992] 1 SCR 259
R v Lippé [1990] 60 CCC (3d) 34
R v Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696
Reference re: Public Sector Pay Reduction Act (PEI), s 10 (1997) 150 DLR (4th) 577
Reference re: Territorial Court Act (NWT), s 6(2) (1997) 152 DLR (4th) 132
Ridge v BaldwinELR [1964] AC 40
Soering v United Kingdom Series No 161 (1989); 11 EHRR 439
Sramek v AustriaHRC Series A No 84 (1984); 7 EHRR 351
Stewart v Secretary of State for ScotlandSC 1998 SC (HL) 81
Stieringer v Germany Application No 28899/95 (25 November 1996)
T, Petitioner 1997 SLT 724
Valente v The Queen (1985) 24 DLR (4th) 161
Zand v Austria Application No 7360/76 (1978) 15 DR 70
Textbooks, etc referred to:
Brennan, “The State of the Judicature” (1998) 72 ALJ 33
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