APPEAL COURT, HIGH COURT OF JUSTICIARY

 

Lord Justice General

Lord Osborne

Lord Macfadyen

Lord Nimmo Smith

Lord Penrose

 

 

 

 

 

 

 

 

[2007] HCJAC 65

Appeal Nos: XC467/03

XJ141/03

 

OPINION OF THE LORD JUSTICE GENERAL

 

in

 

APPEAL

 

by

 

KENNETH ROBERT DICKSON

Appellant;

 

against

 

HER MAJESTY'S ADVOCATE

Respondent:

 

and

 

BILL OF SUSPENSION

 

by

 

IAIN McNAUGHTON

Complainer;

 

against

 

HER MAJESTY'S ADVOCATE

Respondent:

 

_______

 

 

 

Act: Shead, C. Mitchell; Drummond Miler (Appellant and Complainer)

Alt: Stewart QC, A.D.; Crown Agent: Moynihan, Q.C. on behalf of the Advocate General; OSAG (Respondent)

15 November 2007

 

The background

 

[1] On 10 March 1999 the appellant was convicted on indictment at Hamilton Sheriff Court of assault to severe injury and permanent disfigurement. The sheriff who presided at his trial was a temporary sheriff appointed under section 11 of the Sheriff Courts (Scotland) Act 1971. On the same day the appellant was sentenced by that sheriff to 18 months imprisonment.

[2] On 3 March 1999 the complainer was convicted on summary complaint at Paisley Sheriff Court of a contravention of section 5(1)(a) of the Road Traffic Act 1988; he had previously pled guilty to a contravention of section 47(1) of that Act. The sheriff who constituted that tribunal was a temporary sheriff appointed under section 11 of the 1971 Act. Following conviction the sheriff fined the complainer 300 in respect of the contravention of section 5(1)(a) and admonished him in respect of the contravention of section 47(1). He also disqualified the complainer from holding or obtaining a driving licence for one year and caused his licence to be endorsed.

[3] The appellant on certain grounds appealed against both his conviction and sentence. On 12 October 2001 the court allowed to be received additional grounds of appeal for the appellant, which grounds, under reference to both the Human Rights Act 1998 and the Scotland Act 1998, challenged his conviction on the basis that the temporary sheriff was not an "independent and impartial tribunal" within the meaning of Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. A relative devolution minute was also lodged. The appellant had earlier in 2001 tabled a ground of appeal that the sentence imposed on him was, on the same basis, incompetent. On 1 November 2005 the appellant abandoned his appeal against conviction. He maintains his appeal against sentence on the basis mentioned.

[4] The complainer appealed by stated case against his conviction. After sundry procedure that appeal was, on 19 January 2000, refused. On 5 July 2000 the complainer presented a Bill of Suspension in which he challenged his conviction and sentence on the basis that the temporary sheriff was not an "independent and impartial tribunal" within the meaning of Article 6(1). A relative devolution minute was also lodged. On 9 July 2002 the complainer paid in full the fine imposed on him. The period of disqualification had also by then expired.

[5] After sundry procedure the processes initiated by the appellant and the complainer were associated, together with an appeal taken by another party who has since died. An issue of acquiescence having been raised by the Crown, parties were, in August 2006, heard on that issue. The court, on 11 October 2006, repelled the plea of acquiescence in each case.

[6] On 20 May 1999 section 44(1)(c) of the Scotland Act came into force. On that event the Lord Advocate became a member of the Scottish Executive and section 57(2) of the Act became applicable to him. The Human Rights Act came into force on 2 October 2000. In Starrs v Ruxton 2000 JC 208 the High Court held that a temporary sheriff appointed under section 11 of the Sheriff Courts (Scotland) Act 1971 did not constitute an "independent and impartial tribunal" within the meaning of Article 6(1). Although that case gave rise to a devolution issue, no appeal was taken against that decision. In the present proceedings no challenge has been mounted by any party to its correctness. Although, as presently constituted, this court would be entitled to review Starrs v Ruxton, in the absence of any challenge it would be inappropriate for us to do so. It must accordingly be treated, for present purposes, as good law.

[7] For the purposes of this hearing a bench of five judges has been constituted. That, we were advised, was because the appellant and the complainer (whom I shall collectively refer to as "the appellants") intended to rely on Singh v Secretary of State for the Home Department 2004 SC 416 - where a bench of three judges in the Court of Session, refusing an appeal from the Lord Ordinary (Lord Mackay of Drumadoon), held that a decision made on 21 November 1997 by a Special Adjudicator appointed by the Lord Chancellor failed the common law test of freedom from apparent bias; certain observations were also there made about the relationship between the common law and Article 6. The Crown, it was understood, might challenge the correctness of Singh or at least of the observations 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 principal submissions - (1) that, on a sound construction of the Human Rights Act, the provisions of that statute, in so far as relevant to disposals by the temporary sheriffs in March 1999, were retrospective and that the requirements of the Convention had accordingly direct effect upon these disposals and (2) that, in any event, the common law of Scotland as at 1999 guaranteed a right to a fair hearing before an independent and impartial tribunal and, neither appellant having been dealt with by such a tribunal, the disposals in question should be quashed. He also made submissions in relation to the position of the Crown under the Scotland Act.

[9] In introducing his submissions Mr Shead observed that the United Kingdom Government had signed the European Convention in 1950 and thereby undertaken to secure the rights and freedoms therein mentioned. Since 1966 citizens of the United Kingdom had had the right to petition the European Court of Human Rights individually. The British courts in their domestic decisions had sought to take account of the international obligations of the State - as, for example, in McLeod v H.M. Advocate (No. 2) 1998 JC 67. The Human Rights Act, he argued, had essentially provided a mechanism by which pre-existing rights could be enforced; it was essentially concerned with remedy. The Article 6 rights of each of the appellants existed in international law independently of the Human Rights Act and could not be compromised. Against that background it was unsurprising that Parliament, by enacting the Human Rights Act, had provided that Convention rights could be relied on in proceedings where the other party was a public authority. There being no dispute that Starrs v Ruxton was correctly decided, there had been a clear violation of Article 6(1) and the disposals by the temporary sheriffs could not stand.

[10] In developing his first submission Mr Shead referred to R v Lambert [2002] 2 AC 545. Although the majority of their Lordships had been of opinion that the Human Rights Act was not retrospective in proceedings on appeal from a decision made prior to 2 October 2000, the result favoured by Lord Steyn was to be preferred - although counsel did not rely on Lord Steyn's interpretation of section 6(1) of the Act, the better argument being that founded on section 7 (as read with section 22(4)). It was significant that Lord Hope of Craighead (particularly at para. 107) had distinguished between a breach by the court (as in Lambert) and a breach by the prosecuting authority (as here). Lord Hope had in R v Kansal (No. 2) [2002] 2 AC 69 revised his view on the correct interpretation of the statute, although the majority view in that case had been to adhere, as a matter of precedent, to the decision in Lambert. The views of Lord Steyn and of Lord Lloyd of Berwick in Kansal were also important and persuasive. Reference was also made to the views of Lord Woolf C.J. in R v Benjafield, R v Rezvi [2003] 1 AC 1099 at paras. 49-51. Section 7(1)(b) was concerned with "any legal proceedings", including where, as here, a Convention right was used defensively. Section 7(6) defined "legal proceedings" inclusively, not exhaustively. The retrospective effect of section 22(4) extended to the appellate stage of proceedings which had been disposed of at first instance before the commencement of the Act. Here the act retrospectively rendered unlawful was the prosecutor's act in insisting upon a determination of the case by a temporary sheriff. The remedy available under section 8 of the Human Rights Act was the quashing of the disposals - the remedy which the common law afforded where justice had not been seen to be done (Bradford v McLeod 1985 SCCR 379). That remedy was also that which was inevitable where there had been, under the Scotland Act, a breach by the prosecutor (see Millar v Dickson 2002 SC (PC) 30). National courts should, in so far as they were free to do so, seek to act in a manner consistent with the obligations of the State binding in international law (R v Lyons [2003] 1 AC 976, especially per Lord Bingham of Cornhill and Lord Hoffman). Reference was also made to In re McKerr [2004] 1 WLR 807, where Lords Steyn and Nicholls of Birkenhead had drawn a distinction between section 6 and section 22 and Lord Rodger of Earlsferry had emphasised the significance of international obligations for the development of the common law and of statutory enactments. The retrospective force of section 22(4) had again been emphasised by Lord Hope in Wilson v First County Trust Limited (No. 2) [2004] 1 AC 816 at para. 90; reference was also made to the observations of Lord Rodger at paras. 179-185.

[11] In development of his second submission Mr Shead again cited Bradford v McLeod and the unreported case of Stewart v Agnew (High Court on Appeal, 18 June 1953), there referred to. The remedy (quashing of the conviction) there granted was important. The right at common law to an independent and impartial tribunal was distinct from the right to a fair trial. The concepts of independence and of impartiality were closely interlinked (Kearney v H.M. Advocate 2006 SCCR 130, per Lord Bingham at para. [3]). The right to an independent tribunal was as fundamental in Scots common law as the right to an impartial one (Millar v Dickson 2002 S.C. (P.C.) 30, per Lord Bingham at paras. [16]-[18]; reference was also made to Lord Hope at paras. [41] and [61] - [70] and Lord Clyde at paras. [80] - [81]). There was no material difference between the Convention right to an impartial tribunal and the common law right to the same effect (Bryceland, Petitioner 2006 SCCR 291, per Lord Osborne at para. [16]). The same applied to the closely related right to an independent tribunal. The First Division had been correct in Singh v Secretary of State for the Home Department (especially at paras. [35] and [37]) to find no relevant distinction between the common law and the requirements of Article 6(1) that there be an independent and impartial tribunal. There was no justification for the view that after 20 May 1999 there was an entitlement to an independent tribunal but that immediately prior to that date there was not. The views of Lord Prosser in Millar v Dickson 2000 JC 648 at para. [41] were not necessarily inconsistent with those expressed in Singh. Lord Prosser had been focusing upon the issue of waiver; he had not been addressed on the consequences of there being a fundamental nullity at common law by reason of the tribunal not being independent. Lord Prosser's view on waiver had not been accepted by the Privy Council (Millar v Dickson 2002 SC (PC) 30, especially per Lord Bingham at paras. [31] - [39]); if the temporary sheriffs had entertained any doubts about their independence, it was their duty to share those doubts with the defence (para [37]). If it were to be suggested that, a right to an independent tribunal having existed at common law in 1999, the appellants had waived that right, they would rely on the Privy Council's views on the requirements of waiver. An informed choice was required. In criminal law it was inappropriate to fix an accused with the knowledge (or imputed knowledge) of his legal advisers. Lord Clyde had in Millar doubted whether one could waive the fundamental right to an independent and impartial tribunal (para. [81]).

[12] Devolution issues arose in both cases. There were two aspects to be considered - (1) whether at the time of the disposals the prosecutors had acted ultra vires and (2) whether the Advocate depute was now acting ultra vires in resisting the appellants' motions. Although the Scotland Act made no express provision for retrospective effect, the prosecutor was master of the instance, at least until conviction and a motion for sentence (Mills v H.M. Advocate 2001 SCCR 821; 2003 SC (PC) 1). "Incompatible" had the same meaning in the Scotland Act as in the Human Rights Act (R v H.M. Advocate 2003 SC (PC) 21, especially per Lord Rodger at para. [117]). If, as was contended, the Human Rights Act was for present purposes retrospective, there must likewise be a devolution issue - as a party could not choose between reliance on the Scotland Act and reliance on the Human Rights Act. In any event the position adopted in this court by the Advocate depute involved an "act" by him which gave rise to a devolution issue. Any submission made by him was incompatible with the appellant's Convention rights and accordingly fell to be ignored. The Crown had no interest in maintaining a conviction or sentence flowing from a decision of a court which was not seen to be independent and impartial (R v Spear [2003] 1 AC 734, per Lord Rodger at para. 100).

 

Submissions for the Advocate General

[13] Mr Moynihan for the Advocate General advised the court that he would be addressing it only on one aspect, namely, the Human Rights Act. It was not intended to challenge the decision in Starrs v Ruxton; whatever its merits, there was no practical advantage in challenging it now. Mr Moynihan advanced four general propositions - (1) that at the stage of an appeal the Crown was no longer master of the instance and accordingly no issue under section 57(2) of the Scotland Act could then arise, (2) that "Convention rights" within the meaning of the Human Rights Act were those which were given effect in domestic law by that statute and which received effect in domestic law in accordance with it (including its commencement provisions), these rights being distinguishable from Convention rights as a matter of international law (which had force and effect both before and after the commencement dates of the Scotland Act and the Human Rights Act respectively), (3) that the Human Rights Act was not applicable to the outcome of criminal trials which had been concluded prior to the date of its commencement, even if an appeal was heard after that date and (4) that, given the terms of section 126(1) of the Scotland Act, "Convention rights" fell to be construed for the purposes of the Scotland Act consistently with their definition for the purposes of the Human Rights Act.

[14] In elaboration of proposition (3) Mr Moynihan observed that the issue of retrospectivity had not been re-argued in R v Lyons because, in the meantime, it had been held by the House of Lords in R v Benjafield; R v Rezvi to be settled law. "Convention rights" were not engaged and enforceable domestically in respect of a disposal prior to the commencement of the relevant statute. The ratio of the decision in Lambert was to be found in the reasoning of the majority in that case. There sections 7(1), 7(6) and 22(4) had been construed to the effect that the retrospective effect of section 22(4) did not extend to appellate proceedings. Although Lambert was not binding on this court, it was at least persuasive and should be followed. It was concerned with the interpretation of a United Kingdom statute. While it might be that there was much to be said for either interpretation, there was considerable practical advantage in a consistent approach to the statute being adopted throughout the United Kingdom. To take a different view would be to disturb settled law. The consequences for civil as well as criminal law had to be considered. There was a sound policy reason behind the reasoning of the majority in Lambert: those who had been convicted or sentenced in accordance with the law as it then existed should not have these disposals disturbed. The law in England had been settled after anxious consideration.

[15] In elaboration of proposition (1) Mr Moynihan submitted that while "act" should have an expansive interpretation, it remained open to question whether it included a "negative act" (an omission). The point had been left open in Mills v H.M. Advocate, where at para. [31] Lord Hope had referred to Howitt v H.M. Advocate 2000 SCCR 195. Even if anything done by the Advocate depute in the course of this appeal amounted to an "act" within the meaning of section 57(2) of the Scotland Act, such conduct, if ultra vires, simply fell to be ignored. Section 57(2) was not engaged. As to the position of the prosecutor at March 1999, as the Lord Advocate was not as at these dates vested with the qualities of a Scottish Minister, section 57(2) could not be engaged.

[16] In elaboration of proposition (4) reference was made to R v H.M. Advocate per Lord Rodger at para. [117].

[17] In elaboration of proposition (2) Mr Moynihan submitted that, as regards retrospectivity, it was necessary to bear in mind the distinction between international and domestic rights (In re McKerr, per Lord Hoffman at para. 63).

 

Submissions for the Crown

[18] The Advocate depute moved the court, in Mr Dickson's case, to refuse the devolution minute and to refuse the appeal against sentence but to take no steps at this stage in relation to the liberty of Mr Dickson, who had been granted interim liberation on 15 July 1999; in Mr McNaughton's case, he moved the court to repel the complainer's pleas, to refuse the Bill and to refuse the devolution minute. He adopted the submissions made by Mr Moynihan. He also conceded, for the purposes of these proceedings, that a tribunal constituted by or presided over by a temporary sheriff did not meet the standard of independence required by Article 6.

[19] The Advocate depute advanced four principal submissions - (1) that tribunals constituted or presided over by temporary sheriffs appointed under the Sheriff Courts (Scotland) Act 1971 were not open to challenge at common law for alleged want of institutional independence or impartiality, (2) that, in any event, any challenge at common law had been waived by the appellants, (3) that appeals by convicted (or sentenced) persons in respect of prosecutions concluded at first instance before the dates when the Scotland Act and the Human Rights Act respectively came into force were not apt to engage either of these Acts, and (4) that, in any event, the immunity conferred by these Acts extended to otherwise lawful convictions and sentences imposed by tribunals constituted by or presided over by temporary sheriffs before the respective "in force" dates.

[20] In elaboration of the first of these submissions the Advocate depute argued that there was no common law rule that judges, apart from those of the Supreme Courts, must have security of tenure. That argument was based on a written submission tendered by him which set out in some detail the relevant judicial and legislative history. In any event, section 11(6) of the 1971 Act authorised temporary sheriffs, whose appointment was by section 11(4) precarious, to exercise the jurisdiction and powers of permanent sheriffs. Any common law rule in relation to security of tenure was accordingly overridden by that express statutory provision. Singh v Secretary of State was distinguishable. In the present case it was, in contrast to the situation in Singh, not conceded that the statutory provision did not support the argument; moreover, the statutory power in Singh was very elastic, allowing of appointments on a secure as well as on a precarious basis. The ratio of the decision in Starrs v Ruxton was the lack of security of tenure of temporary sheriffs. Such observations as had been made about objective impartiality were obiter. It was unnecessary to consider whether an informed objective observer would think that temporary sheriffs might be influenced in their decisions by reason of the uncertainty of their positions.

[21] In elaboration of the second submission the Advocate Depute argued that, if a temporary sheriff by reason of the lack of security of tenure was at common law not an independent tribunal, that state of affairs had existed and was patent since the enactment of the 1971 Act. Given that knowledge, the appellants' silence on being brought for trial or sentence before a temporary sheriff inferred waiver at common law of their right to challenge that tribunal. Reference was made to Duke of Athole v Robertson (1869) 8 Macph. 299. All exceptions require to be taken at the outset (Stair, Institutions IV.37.12-15, IV.39.14), as had been done in Bradford v McLeod. Reference was made to Millar v Dickson (in the High Court). The only complainer in that case whose conviction and sentence had occurred prior to May 1999 (Marshall) had not appealed to the Privy Council.

[22] In elaboration of the third submission, the Advocate depute argued that at the date when the respective conviction and sentence took place, there was no devolved administration; so the Scotland Act was not engaged and there was no devolution issue. Support by the Crown, at the stage of appeal, of conviction or sentence was not an act inconsistent with Convention rights since at that stage the determinative acts were acts of the court, not of the prosecutor. The submission in that respect made by Mr. Moynihan was adopted. Mr. Moynihan's further submission in respect of retrospectivity was also adopted.

[23] The Advocate depute's fourth submission is fully narrated by Lord Macfadyen in his Opinion. It is unnecessary to repeat it here.

 

Discussion - retrospectivity

[24] The Human Rights Act provides:

"1(1) In this Act 'the Convention rights' means the rights and fundamental freedoms set out in -

(a) Articles 2 to 12 and 14 of the Convention,

(b) Articles 1 to 3 of the First Protocol, and

(c) Articles 1 and 2 of the Sixth Protocol,

as read with Articles 16 to 18 of the Convention."

"6(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right."

"7(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may -

(a) bring proceedings against the authority under this Act in the

appropriate court or tribunal, or

(b) rely on the Convention right or rights concerned in any legal

proceedings,

but only if he is (or would be) a victim of the unlawful act.

...

(6) In subsection (1)(b) 'legal proceedings' includes -

(a) proceedings brought by or at the instigation of a public authority; and

(b) an appeal against the decision of a court or tribunal."

"8(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate."

"22(4) Paragraph (b) of subsection (1) of section 7 applies to proceedings brought by or at the instigation of a public authority whenever the act in question took place; but otherwise that subsection does not apply to an act taking place before the coming into force of that section."

[25] The Scotland Act provides:

"126(1) In this Act -

...

'The Convention rights' has the same meaning as in the Human Rights Act 1998

... "

[26] In Lambert the House of Lords, by a majority of four to one, held that the retrospective effect of section 22(4) of the Human Rights Act did not extend to a challenge made on an appeal argued after 2 October 2000 from a decision of a criminal court reached prior to that date. Although in that case Lord Hope was careful to distinguish between a violation of a Convention right by the court (with which that case was concerned) and a violation of such a right by a prosecutor, his Lordship in Kansal noted that the three other members of the majority (Lords Slynn, Clyde and Hutton) did not draw that distinction. They decided the appeal on the broader ground that an appellant could not rely on Convention rights in a national court "in respect of a conviction" before the Human Rights Act came into force (Kansal, para. 34); that was what thereafter Lord Hope described as "the majority view". In Kansal Lords Slynn and Hutton adhered to the interpretation of section 7(6) (as read with section 22(4)) which they had favoured in Lambert; Lord Steyn and Lord Lloyd (the latter of whom had not sat in Lambert), expressed opposite views, though Lord Lloyd stated that, had he been a party to the hearing in Lambert, he would have been unable to agree with anyone (Kansal, para. 15); Lord Hope retracted the interpretation which he had favoured in Lambert. Although their Lordships in Kansal expressed varying views as to how these differences of opinion might be resolved, the majority in that case were of opinion that, regard being had to the principles of precedence, Lambert should be followed. That meant that the "majority view", which constituted the ratio of Lambert, was treated as binding. In R v Benjafield, R v Rezvi the question was held by all their Lordships to be settled. In R v Lyons (where the complaint was of violation by the prosecutor) it was conceded, and observed to have rightly been conceded, that a defendant convicted before 2 October 2000 could not rely on breaches of "the Convention rights" referred to in section 1(1) of the Human Rights Act in an appeal heard after that date (Lord Bingham at para. 12). That last proposition has accordingly been settled law in England and Wales for a number of years.

[27] The High Court of Justiciary is not bound by any of these decisions. In Dalgleish v Glasgow Corporation 1976 SC 32 at page 52 Lord Justice Clerk Wheatley, having observed that one case in which a decision of the House of Lords in an English case should be regarded as a binding precedent in the Scottish courts was a decision on a United Kingdom statute which had equal or similar applicability in both countries, noted in parenthesis that that principle did not apply in criminal cases in relation to the interpretation of such a statute - presumably because the House of Lords was not a court of ultimate resort in Scottish criminal cases. (Although nice questions might arise in relation to devolution issues, at least upon establishment of the Supreme Court of the United Kingdom, no such question arises here in respect of the issue under discussion). However, decisions of the House of Lords on the interpretation of a statute which applies throughout the United Kingdom are entitled to great respect - both by reason of the distinction of their makers and because, being a final court of appeal, that body is a court of at least co-ordinate authority. In Abbott v Philbin [1961] AC 352 Lord Reid, in observing at page 373 that the (English) Court of Appeal had in a tax case very properly followed a decision of the Inner House of the Court of Session, added:

"I say very properly, because it is undesirable that there should be conflicting decisions on revenue matters in Scotland and England."

It is similarly, in my view, undesirable that there should be conflicting decisions in Scotland and England on the interpretation of the Human Rights Act which has equal applicability in both countries. Had I been persuaded that "the majority view" in Lambert was clearly wrong, I might well have come to the view that, notwithstanding it represents the long-settled position in England, the Scottish courts should go their own way. But I am not so persuaded. Interpretation of section 7(6) - and in particular the scope of "proceedings" in section 7(6)(a) - is difficult and there are respectable arguments for either view. In these circumstances it appears to me that it would be inappropriate to venture upon a fresh interpretative exercise. As Lord Nicholls said in Wilson v First County Trust Limited (No. 2) at para. 13 in relation to section 22(4):

"It is a curious provision. Commentators and judges have spilled much ink in discussing it ... What is not apparent is why, in respect of pre-Act violations of human rights, victims are given a domestic remedy in this one respect but not more widely. What is special about this one particular situation is not clear. But there it is."

A similar puzzle of interpretation is presented by section 7(6).

[28] If Lambert and the cases which endorse it are to be followed, as in my view they should be, the appellants' argument, in so far as based on an alleged relevant retrospectivity of the Human Rights Act, falls to be rejected.

 

Discussion - independent tribunal otherwise than under the Convention

[29] By the Claim of Right 1689 (Cap. 28, APS IX pp. 37-40) the Parliament of Scotland set forth certain wrongs said to have been perpetrated by King James the Seventh and declared that these several wrongs were contrary to law. The narrative of the Claim included, among the recited wrongs, that of -

"Sending letters to the chiefe Courts of Justice, not only ordaining the Judges to stop and desist sine die to determine causes But also ordering and Commanding them how to proceed in cases depending before them Contrair to the express lawes, and by chainging the nature of the Judges gifts ad vitam aut culpam, and giveing them Commissions ad beneplacitum, to dispose them to complyance with arbitrary Courses, and turneing them out of their offices when they did not comply."

In that respect the Parliament declared -

"THAT the Sending letters to the courts of Justice, Ordaining the Judges to stop or desist from determining Causes, or ordaining them how to proceed in Causes depending befor them and the changeing the nature of the Judges gifts ad vitam aut culpam Into Commissions durante beneplacito are Contrary to law ... ."

As Lord Robertson recognised in Mackay and Esslemont v Lord Advocate 1937 SC 860 at pages 865-6 - "It may be that [that declaration] referred directly only to the judges of the Court of Session." He added, however, -

"None the less I think that the Declaration of 1689 may properly be regarded as setting forth generally that any tenure of a salaried judicial office which is other than ad vitam aut culpam is inconsistent with the common law nature of the office."

[30] Lord Robertson does not cite any authority for the general proposition that security of tenure is at common law a necessary feature of all judicial offices. This general proposition was doubted by Lord Goddard, C.J. in Terrell v The Secretary of State for the Colonies [1953] 2 QB 482 at page 501. Erskine - Institute II.II.32 confines it to supreme court judges.

[31] However, in Millar v Dickson 2002 SC (PC) 30 at para. [41] Lord Hope observed -

"Central to the rule of law in a modern democratic society is the principle that the judiciary must be, and must be seen to be, independent of the executive. Writing on the independence of the judiciary in the title on Constitutional Law in the Stair Memorial Encyclopaedia, vol. 5, para. 663-667, Lord Fraser of Tullybelton identified security of tenure and immunity from suit as the two most important ways of ensuring that judges perform their duties impartially and without fear of the consequences. Of these, security of tenure is the more vulnerable to erosion at the hands of the executive." (The passage referred to is in the first edition of the Encyclopaedia).

Although at para. 663 Lord Fraser (writing in about 1987) begins by considering the position of a judge of the Court of Session, he appears to accept Lord Robertson's more general proposition. That proposition is also acknowledged by Lord Hope in Kearney v H.M. Advocate 2006 SC (PC) 1 at para. [48]. There is much European and international support for the proposition that at least in modern times guaranteed tenure for all judicial office holders is at least desirable, if not essential (see Starrs v Ruxton 2000 SC 208, per Lord Reed at pages 245-6, in part cited with approval by Lord Bingham of Cornhill in Millar v Dickson at para. [10]). Having regard to the influence of European and international principles on Scots law by at least the 1990s I am of opinion that, had the question then or subsequently been tested, it would have been held that at common law, as developed, security of tenure was an essential of the holding of the judicial office of sheriff. (I reserve my opinion in relation to non-professional judicial officer-holders.) In so far as in Singh the court observed that it had

"no reason to suppose that, if the issues which were raised in Starrs had been raised at common law prior to the coming into force of the Convention the decision would have been any different",

I would agree with it - at least in so far as the decision in Starrs turned on the principle of security of tenure.

[32] However, as all the authorities recognise, that principle is subject to statutory provision to the contrary. Section 11(4) of the Sheriff Courts (Scotland) Act 1971 (as read with subsections (2) and (6)) is clearly such a provision - see Lord Hope in Kearney at para. [48]. They provide:

"(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.

...

(6) A person appointed to be ... a temporary sheriff for any sheriffdom shall for the purposes of his appointment, without the necessity of his receiving a commission in that behalf, have and be entitled to exercise the jurisdiction and powers attaching to the office of ... sheriff in that sheriffdom."

These provisions are to be contrasted with those in respect of permanent sheriffs. Section 13 of the Sheriff Courts (Scotland) Act 1907 provided that a salaried sheriff substitute was removable from office by the Secretary for Scotland for inability or misbehaviour upon a report of the Lord President of the Court of Session and the Lord Justice Clerk for the time being. That provision was repealed by the 1971 Act and new provision made by section 12 of that Act; amongst other changes it extended the grounds for removal of sheriffs substitute (renamed sheriffs) to include "neglect of duty". The import of those provisions was that permanent sheriffs were removable from office only on the grounds specified and following the identified procedure.

[33] Section 11 of the 1971 Act, on the other hand, made express provision for the office of temporary sheriff (and of temporary sheriff principal) and for these offices to be held without security of tenure. Every appointment made under that section "shall subsist until recalled by the Secretary of State". Parliament provided for no exception as regards such appointees. The position may be contrasted with that discussed in Singh, where the special adjudicator (one of a number of adjudicators appointed for the purposes of Part II of the Immigration Act 1971) held and vacated office "in accordance with the terms of his appointment" (Immigration Act 1971, Schedule 5, para. 2 - as read with Asylum and Immigration Appeals Act 1993, section 8(5)). There, accordingly, an appointment with security of tenure was, in theory at least, consistent with Parliament's intention. It may also be contrasted with the provision under section 16 of the 1907 Act, whereby during the temporary absence by reason of ill-health of a sheriff-substitute an interim sheriff substitute might be appointed. The term of that office was restricted to the absence of the permanent sheriff-substitute.

[34] In Starrs v Ruxton the principal focus was on the lack of security of tenure enjoyed by the temporary sheriff (per Lord Justice Clerk Cullen at page 230C-D, Lord Prosser at page 231F-G, per Lord Reed at page 245D and G, and 251H-I). I regard that factor (which turned upon section 11(4) and on the practical arrangement under which temporary sheriffs were appointed for one-year terms) as the essence of the decision. There was also some discussion as to whether temporary sheriffs, by reason of the precariousness of their appointments and the possible influence of hopes and fears as to prospective advancement, lacked institutional impartiality. But such a lack, if it existed, was consequential upon their lack of security of tenure. Any appointment as a temporary sheriff was open to such perception. Parliament, accordingly, in creating the post of temporary sheriff with the incidents of that office stipulated in section 11, must be taken to have been content that such post-holders might, in contrast to permanent sheriffs, be open to such perception.

[35] For these reasons I am satisfied that the determinations of temporary sheriffs were not, prior to the introduction into domestic law of the European Convention, open to successful challenge under the law of Scotland.

 

Discussion - other issues

[36] In these circumstances no question of waiver of any right of challenge arises. In the circumstances of this case I find it unnecessary to express any view on that topic.

[37] I have already, in dealing with the arguments on retrospectivity, dealt with in the Advocate depute's third submission and have nothing to add on that matter.

[38] As regards the fourth submission advanced by the Advocate depute I have had the benefit of reading in draft the Opinion prepared by Lord Macfadyen. I agree with it and for the reasons which he gives would, had it been necessary to do so, have sustained that submission.

[39] An initial hesitancy on my part on that last matter was not related to the decision of the Privy Council in Millar v Dickson; it is clear, in my view, that the argument under section 6(2)(b) of the Human Rights Act 1998 there advanced by the Solicitor General did not focus on section 11(6) of the 1971 Act and that the Board's decision was based on consideration of section 11(2). The ratio of that decision does not bear on the argument advanced in this court. The decision is accordingly not binding on us.

[40] In its dictionary meaning "to give effect to" means "to render operative" (Shorter Oxford Dictionary sub. nom. "effect"). In conjunction with "or enforce" it might be thought that the authority (here the procurator fiscal) was not so much rendering section 11(6) operative - the temporary sheriff vested with the powers of a permanent sheriff could effectively act in civil matters - as taking advantage of the powers so unrestrictively vested by the subsection. But, on reflection, I am persuaded that that would be too narrow a view. It is clear that Parliament intended that temporary sheriffs should be vested with the whole jurisdiction and powers of permanent sheriffs. That must necessarily include their powers to hear and determine, or preside over, criminal cases. Unless the temporary sheriff's jurisdiction is invoked by a party (pursuer or prosecutor) that jurisdiction can have no practical effect. In R v Kansal (No. 2) [2002] 2 AC 69 it was held that the prosecutor was giving effect to section 433 of the Insolvency Act 1986 (which provided that in any proceedings certain statements "may be used in evidence ... ") by leading such a statement. (See also Lord Hope in R (Hooper) v Work and Pensions Secretary [2005] UK (HL) 29; [2005] 1 WLR 1681 at para. 72). Likewise, in my view, the prosecutor here may properly be regarded as giving effect to section 11(6) by invoking the jurisdiction and powers conferred by it on the temporary sheriff. That construction is not as strained as that urged by the reclaimer in XY v Scottish Ministers [2007] CSIH 45.

 

Disposal

[41] For all these reasons I move your Lordships to refuse the appeal by the appellant Dickson and to refuse to pass the Bill by the complainer McNaughton.


APPEAL COURT, HIGH COURT OF JUSTICIARY

 

Lord Justice General

Lord Osborne

Lord Macfadyen

Lord Nimmo Smith

Lord Penrose

[2007] HCJAC 65

Appeal Nos: XC467/03

XJ141/03

 

 

 

OPINION OF LORD OSBORNE

 

in

 

APPEAL

 

by

 

KENNETH ROBERT DICKSON

Appellant;

 

against

 

HER MAJESTY'S ADVOCATE

Respondent;

 

and

 

BILL OF SUSPENSION

 

by

 

IAIN McNAUGHTON

Complainer;

 

against

 

PROCURATOR FISCAL, PAISLEY

Respondent.

 

 

Act: Shead, C. Mitchell; Drummond Miler (Appellant and Complainer)

Alt: Stewart QC, A.D.; Crown Agent: Moynihan, Q.C. on behalf of the Advocate General; OSAG (Respondent)

 

 

15 November 2007

 

[42] I agree with the Opinions of your Lordship in the Chair and Lord Macfadyen and have nothing useful to add.


APPEAL COURT, HIGH COURT OF JUSTICIARY

 

Lord Justice General

Lord Osborne

Lord Macfadyen

Lord Nimmo Smith

Lord Penrose

[2007] HCJAC 65

Appeal Nos: XC467/03

XJ141/03

 

 

 

OPINION OF LORD MACFADYEN

 

in

 

APPEAL

 

by

 

KENNETH ROBERT DICKSON

Appellant;

 

against

 

HER MAJESTY'S ADVOCATE

Respondent;

 

and

 

BILL OF SUSPENSION

 

by

 

IAIN McNAUGHTON

Complainer;

 

against

 

PROCURATOR FISCAL, PAISLEY

Respondent.

 

 

Act: Shead, C. Mitchell; Drummond Miler (Appellant and Complainer)

Alt: Stewart QC, A.D.; Crown Agent: Moynihan, Q.C. on behalf of the Advocate General; OSAG (Respondent)

 

 

15 November 2007

Introduction

[43] I agree with your Lordship in the chair that we should both refuse the appellant's appeal against sentence and refuse to pass the complainer's bill of suspension. I agree with the reasons which your Lordship has given for rejecting the principal arguments advanced on behalf of the appellant and the complainer, and sustaining the principal arguments advanced by the Advocate depute and counsel for the Advocate General. I wish to set out my own views only on the fourth submission advanced by the Advocate depute, namely that the appeal and the bill of suspension must fail because of the immunity conferred on the Lord Advocate by section 57(3) of the Scotland Act. In view of the conclusions that have been reached on the other submissions, the appeal and the bill of suspension fall to be refused whether the Advocate depute's submission based on section 57(3) is well founded or not. The point is, however, in my view one of some importance.

 

The relevant statutory provisions

[44] It is convenient to begin by taking note of the statutory provisions on which the Advocate depute's submission depends. Section 57(2) of the Scotland Act provides as follows:

"A member of the Scottish Executive [of whom the Lord Advocate is one by virtue of section 44(1)(c)] 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 or with Community law."

Section 57(3), however, provides inter alia that:

 

"Subsection (2) does not apply to an act of the Lord Advocate -

 

(a)

in prosecuting any offence ...

 

which, because of subsection (2) of section 6 of the Human Rights Act 1998, is not unlawful under subsection (1) of that section."

 

[45] Section 6 of the Human Rights Act provides inter alia as follows:

 

"(1)

It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

 

(2)

Subsection (1) does not apply to an act if -

 

 

(a)

as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

 

 

(b)

in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions."

 

[46] The provision of primary legislation upon which the Advocate depute relied in advancing his argument under section 57(3) was specifically subsection (6) of section 11 of the Sheriff Courts (Scotland) Act 1971 ("the 1971 Act"). It is, however, convenient to quote subsections (2) and (4) as well as subsection (6) of that section. Subsection (2) provided as follows:

 

"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 the sheriffdom,

 

the Secretary of State may appoint a person (to be known as a temporary sheriff) to act as a sheriff in the sheriffdom."

Subsection (4) provides inter alia that:

"The appointment of a ... temporary sheriff shall subsist until recalled by the Secretary of State".

Subsection (6) provides inter alia that:

"A person appointed to be ... a temporary sheriff for ... any sheriffdom shall for the purposes of his appointment, without the necessity of his receiving a commission in that behalf, have and be entitled to exercise the jurisdiction and powers attaching to the office of ... sheriff in that sheriffdom."

 

The Advocate depute's submission

[47] The Advocate depute's fourth submission proceeded on the hypothesis that, contrary to his primary submission, the bringing of a criminal prosecution before a temporary sheriff (or a court presided over by a temporary sheriff) on a date prior to the commencement of the Scotland Act, was an act on the part of the Lord Advocate which was incompatible with the accused's Convention rights, within the meaning of the Scotland Act and the Human Rights Act, in particular the right under Article 6 to trial before an independent and impartial tribunal. His submission, in short, was that even if that were so, the proceedings were neither unlawful in terms of the Human Rights Act nor ultra vires of the Lord Advocate in terms of the Scotland Act. That submission depended on consideration of the statutory provisions which I have quoted above.

[48] The basis for the proposition that a temporary sheriff was not an independent and impartial tribunal was that a holder of that office lacked independence because he lacked security of tenure (Starrs v Ruxton 2000 JC 208). The lack of security of tenure stemmed from the power of the Secretary of State under section 11(4) of the 1971 Act to recall the appointment of a temporary sheriff at any time. The consequence of that lack of independence was that the provision of section 11(6) of the 1971 Act entitling a temporary sheriff to exercise the jurisdiction and powers attaching to the office of sheriff was a provision of primary legislation which could not be read or given effect in a way which was compatible with the accused person's Convention right to trial before an independent and impartial tribunal. That gave rise to the need to consider section 6(2)(b) of the Human Rights Act.

[49] If section 6(2)(b) applied, two consequences followed. First, section 6(1) did not apply, and the incompatibility with Convention rights did not result in an unlawful act. Secondly, by virtue of section 57(3)(a) of the Scotland Act, section 57(2) did not apply to the act of the Lord Advocate, and that act was therefore not beyond his powers. In the result, therefore, if section 6(2)(b) applied, there was, despite the provision of primary legislation which could not be read as compatible with the Convention rights (section 11(6) of the 1971 Act), no unlawful or ultra vires act on the part of the Lord Advocate in prosecuting the appellant and the complainer before a temporary sheriff.

[50] The critical element in the Advocate depute's argument was therefore the proposition that section 6(2)(b) applied because in so prosecuting the appellant and the complainer the Lord Advocate was "acting so as to give effect to" section 11(6). The relevant provision was subsection (6), because it was it that conferred on a temporary sheriff the jurisdiction and powers attaching to the office of sheriff. That jurisdiction included the jurisdiction to try solemn and summary criminal proceedings. But for effect to be given to that part of a temporary sheriff's jurisdiction, it was necessary that such criminal proceedings be called before him. Notwithstanding such administrative arrangements as might have been in place allocating a particular criminal trial to a temporary sheriff, it was the act of the prosecutor, as the master of the instance, in calling the case before the temporary sheriff that gave effect to the temporary sheriff's jurisdiction. Without the prosecutor's act in calling the case, the temporary sheriff's criminal jurisdiction would not take effect. The act of the prosecutor was therefore properly to be seen as giving effect to section 11(6).

[51] The Advocate depute sought support for his construction of section 6(2)(b) in the speech of Lord Hope of Craighead in Regina v Kansal (No. 2) [2002] 2 AC 69 at page 113, paragraphs 85 to 88. In that passage, his Lordship was considering whether the prosecutor, in tendering evidence given under compulsion under section 433 of the Insolvency Act 1986, had been acting so as to give effect to a provision in primary legislation which fell within the scope of section 6(2)(b). At paragraph 88, his Lordship said:

"In my opinion however the question whether or not the prosecutor was giving effect to section 433 of the 1986 Act within the meaning of section 6(2)(b) does not depend on whether he had a discretion as to whether or not to use these answers in evidence. The question is whether, having decided to use the answers and invite the judge to hold them to be admissible, he was doing what he was authorised to do by section 433. It seems to me that there can only be one answer to this question. According to the traditional rules of construction by reference to which at the time that provision was to be interpreted, section 433 authorised him to lead and to rely on that evidence. He was entitled also to give effect to section 433 by asking the judge to hold that in terms of that section the evidence was admissible."

[52] The Advocate depute also referred to Regina (Hooper) v Secretary of State for Work and Pensions [2005] 1 WLR 1681, per Lord Nicholls of Birkenhead at paragraph 6, Lord Hoffmann at paragraphs 48 to 52, and Lord Hope of Craighead at paragraphs 70 to 75 (see also Lord Scott of Foscote at paragraph 95 and Lord Brown of Eaton-under-Heywood at paragraphs 105 to 111). At paragraph 49 Lord Hoffmann made the following observations:

"... section 6(2)(b) ... assumes that the public authority could have acted differently but nevertheless excludes liability if it was giving effect to a statutory provision which cannot be read as Convention compliant ...".

At paragraph 51 his Lordship pointed to the "evident purpose of section 6(2), which was to preserve the sovereignty of Parliament", and added:

"If legislation cannot be read compatibly with Convention rights, a public authority is not obliged to subvert the intention of Parliament by treating itself as under a duty to neutralise the effect of the legislation."

Lord Hope made the same point at paragraph 70:

"Paragraphs (a) and (b) both qualify the basic principle in section 6(1) that it is unlawful for a public authority to act in a way that is incompatible with the Convention rights. The purpose of these paragraphs is to prevent section 6(1) being used to undermine another of the Act's basic principles. That is that in the final analysis, if primary legislation cannot be interpreted in a way that is compatible with them, Parliamentary sovereignty takes precedence over the Convention rights."

At paragraphs 72 and 73 Lord Hope said:

"72. The situation to which paragraph (b) is addressed ... arises where the authority has a discretion, which it has the power to exercise or not to exercise as at chooses, to give effect to or enforce provisions of or made under primary legislation which cannot be read or given effect to in a way which is compatible with Convention rights. The source of that discretion may be in a single statutory provision which confers a power on the authority which it may or may not choose to exercise. ... But the source of the discretion that is given to the authority may also be found in several statutory provisions which taken together have that effect. Or, as there is nothing in the language of the paragraph to indicate the contrary, it may be found in the common law.

73. The important point to notice about paragraph (b) is that the source of the discretion does not matter. What matters is (a) that the provision in regard to which the authority has this discretion cannot be read or given effect compatibly with the Convention rights and (b) that the authority has decided to exercise or not exercise its discretion, whatever its source, so as to give effect to those provisions or to enforce them. If it does this, this paragraph affords it a defence to a claim under section 7(1) that by acting or failing to act in that way it has acted unlawfully. In this way it enables the primary legislation to remain effective in the way Parliament intended. If the defence was not there the authority would have no alternative but to exercise its discretion in a way that was compatible with the Convention rights. The power would become a duty to act compatibly with the Convention, even if to do so was plainly in conflict with the intention of Parliament."

[53] The submission made by the Advocate depute under section 57(3) of the Scotland Act with reference to section 11 of the 1971 Act has not previously been advanced in the same form. In Starrs v Ruxton the Crown sought to invoke section 57(3) through section 6(2)(a) of the Human Rights Act on the basis that the prosecutor could not have acted differently. That submission was rejected. Lord Justice Clerk Cullen said (at 231B):

"The provision of subsection (2) of section 6 of the Human Rights Act which is relied upon [i.e. section 6(2)(a)], is plainly intended to refer to an act of a public authority which is required by primary legislation. In this case the procurator fiscal was not required by primary legislation to proceed with the trial. Further, it was open to her to take no further steps in the trial and to invite the court to discharge the trial diet so that the accused could be tried before a permanent sheriff, or at any rate to concede that this should happen. In these circumstances I consider that there is no ground for invoking subsection (3) of section 57 of the Scotland Act."

(See also per Lord Reed at 255I to 256C.) In Millar v Dickson 2002 SC (PC) 30, the argument was advanced under section 6(2)(b), but it was clear (according to the submission of the Advocate depute before us) that the submission in that case focussed on those provisions of section 11 relating to the appointment of temporary sheriffs rather than the provisions of subsection (6) conferring on temporary sheriffs the jurisdiction and powers attaching to the office of sheriff. No specific mention was made of section 11(6) in the speeches. Lord Bingham of Cornhill said (at 43, paragraphs 29 and 30):

"29. ... Relying on section 6(2)(b), the Solicitor General submitted that section 11 of the Sheriff Courts (Scotland) Act 1971 could not be read or given effect in a way compatible with the Convention rights and that the prosecutors were acting to give effect to or enforce those provisions.

30. I cannot accept this argument. The appointment of temporary sheriffs under section 11 of the 1971 Act was one thing. The prosecution of offenders was quite another. In appointing temporary sheriffs under section 11 the Lord Advocate [sic] was giving effect to that section. In prosecuting the accused before temporary sheriffs so appointed the Lord Advocate (through the respective procurators fiscal) was performing a distinct and different function, which did not give effect to or enforce section 11. Section 57(3) gives the Solicitor General no help in these cases."

Lord Hope of Craighead (at 55B-D, paragraph 69), after noting that the submission in Starrs v Ruxton had been made under reference to section 6(2)(a), went on to say:

"The Solicitor sought [in] this case to rely instead on section 6(2)(b), but in my opinion this submission too is unsound. The Lord Advocate was not giving effect to section 11 of the Sheriff Courts (Scotland) Act 1971 within the meaning of section 6(2)(b) of the Human Rights Act 1998 when these proceedings were being conducted before the temporary sheriffs by the procurator fiscal acting on his authority. Section 11 of the 1971 Act dealt with the appointment of temporary sheriffs. It did not define the circumstances in which they were to be used. Their appointment was not itself incompatible with any of the Convention rights. Everything depended upon the use that was made of them as to whether there was incompatibility. But no rules for their use were laid down by the statute, so it cannot be said that there was anything in section 11 to which effect was being given by the prosecutor."

Lord Clyde (at 60G-H, paragraph 84) said:

"The argument then is that section 11 of the Sheriff Courts (Scotland) Act 1971 is incompatible with the Convention and the procurator fiscal in conducting the prosecution was 'giving effect' to that provision. In my view it is too strained a construction of section 57(3) [sic] to say that proceeding with a case before a temporary sheriff is giving effect to the power to appoint temporary sheriffs.

The Advocate depute submitted that none of these observations dealt with the submission which he was advancing, and did not stand in the way of that submission being upheld. He referred also to XY v The Scottish Ministers and Others [2007] CSIH 45 in which, while not reaching a concluded view on the point, the court commented unfavourably on the proposition that in moving for sentence a prosecutor was "giving effect" to section 3 of the Representation of the People Act 1983 (as amended), which disqualifies a convicted person while serving a custodial sentence from voting in a parliamentary or local government election.

[54] In summary, the Advocate depute's submission was that in calling a criminal case before a temporary sheriff the Lord Advocate, through the procurator fiscal, was "giving effect" to the provisions of section 11(6) of the 1971 Act which conferred on the temporary sheriff the jurisdiction and powers of a sheriff. Section 6(2)(b) of the Human Rights Act therefore applied to the effect that in doing so the Lord Advocate neither committed an unlawful act under section 6(1) of the Human Rights Act nor (by virtue of section 57(3)(a)) acted in a way that was beyond his powers by virtue of section 57(2) of the Scotland Act. On that account, as well as for the reasons given in his other submissions, the appeal and the bill of suspension should be refused.


The submissions for the appellant and the complainer

[55] Mr Shead submitted that the Advocate depute's fourth submission fell to be repelled for the reasons given in the speeches of the members of the Board in Millar v Dickson. As junior counsel for the appellants in that case, his recollection was that the section 6(2)(b) argument had not been formulated in the written case for the Crown, and counsel for the appellants had not been called upon to respond to the oral submissions on it. He submitted that the views expressed by the members of the Board were put in terms of section 11 as a whole, and were therefore broad enough to be regarded as rejecting the version of the submission now advanced by the Advocate depute. It would, he suggested, be most surprising if, in expressing their views in the terms that they did, their Lordships had overlooked the terms of subsection (6) of section 11.

 

Discussion

[56] The Advocate depute's fourth submission stands or falls, in my opinion, with the proposition that in calling a criminal case before a temporary sheriff the prosecutor was giving effect to section 11(6) of the 1971 Act. If that proposition was well founded, it follows, in my opinion, that the appeals before us fail for that reason as well as for the other reasons explained by your Lordship in the chair.

[57] In coming to that conclusion, I start by noting the purpose of section 6(2) of the Human Rights Act, as explained by Lord Hope of Craighead in Hooper (at paragraph 70). It is to ensure that the rule, enacted in section 6(1), that an act of a public authority is unlawful if it is incompatible with a Convention right, does not undermine the basic principle of Parliamentary sovereignty. It achieves that in two ways. First, in paragraph (a), it removes from the scope of section 6(1) the case where as a result of primary legislation the public authority could not have acted differently. Secondly, in paragraph (b), it deals with the case where there is a provision of (or made under) primary legislation which cannot be read or given effect in a way compatible with Convention rights. In that case, the public authority, if it could act so as to give effect to the incompatible provision or could decline so to act, is not "obliged to subvert the intention of Parliament by treating itself as under a duty to neutralise the effect of the legislation" (Hooper, per Lord Hoffmann at paragraph 51). If the public authority has a discretion whether or not to act so as to give effect to or enforce the incompatible provision, and exercises that discretion affirmatively, the act of the public authority is, by virtue of paragraph (b), in that case too removed from the scope of section 6(1) (Hooper, per Lord Hope of Craighead at paragraph 72).

[58] I note next the observations of Lord Hope of Craighead (in Hooper at paragraphs 72 and 73) that the source of the discretion may lie in a single statutory provision which confers on the public authority a power which it may choose to exercise or not to exercise, or in several statutory provisions which, taken together, have that effect, or in the common law. In the context of the present case, the source of the relevant discretion is the common law. It is the discretion possessed by the Lord Advocate as master of the instance in criminal proceedings. That discretion enables a procurator fiscal, acting on the authority of the Lord Advocate, to choose whether or not to call an individual prosecution before a particular court. One aspect of that discretion is that when a case was allocated administratively to call before a temporary sheriff, the procurator fiscal had a discretionary choice to give effect to that allocation by calling the case before the temporary sheriff, or to decline to do so.

[59] It is the fact that the procurator fiscal possessed that discretion that brings the case potentially within the scope of paragraph (b) of section 6(2). It is also the reason for which the argument founded on section 6(2)(a) failed in Starrs v Ruxton (see per Lord Justice Clerk Cullen at 231B). But the possession of the discretion only serves the purpose of taking the case out of the scope of paragraph (a) and bringing it potentially within the scope of paragraph (b). The application of paragraph (b) depends on two other factors. These are, first, that the provision in regard to which the public authority has the discretion cannot be read or given effect compatibly with the Convention rights and, secondly, that the authority has decided so to exercise the discretion as to give effect to or enforce that provision (Hooper, per Lord Hope of Craighead at paragraph 73).

[60] That the first of these factors is present in this case is the hypothesis on which the Advocate depute's submission proceeds. It is important to note, however, that the provision which he assumes for the purpose of the argument to be incapable of being given effect in a way compatible with Convention rights is not the part of section 11 of the 1971 Act that provides for the appointment of temporary sheriffs (subsection (2)), nor the part of that section that deprives temporary sheriffs of security of tenure and thus of Article 6 independence (subsection (4)), but the provision of subsection (6) that a temporary sheriff so appointed, and so lacking independence, is to "have and be entitled to exercise the jurisdiction and powers attaching to the office of ... sheriff". That provision cannot be read as conferring on the temporary sheriff part only, for example the civil part, of the jurisdiction and powers of a sheriff. It is inescapable that it confers on the temporary sheriff the whole criminal jurisdiction and powers of a sheriff. For a temporary sheriff to exercise those powers is ex hypothesi incompatible with the accused person's right under Article 6 to be tried before an independent tribunal. That, then, is how the Advocate depute assumes, for the purpose of this argument, that the first of the two factors identified by Lord Hope as necessary for the application of section 6(2)(b) is present in this case.

[61] It is thus critical to the Advocate depute's submission that the second factor identified by Lord Hope be also present in this case. He must show that in the exercise of the discretion possessed by him, the prosecutor, in calling a criminal case before a temporary sheriff is properly to be regarded as "giving effect" to section 11(6). In my opinion, the Advocate depute has succeeded in showing that that is so. Section 11(6) confers on a temporary sheriff the full criminal jurisdiction of a sheriff. But the temporary sheriff cannot exercise that jurisdiction ex proprio motu. His criminal jurisdiction cannot be exercised unless the prosecutor chooses to call criminal cases before him. The provision of section 11(6) conferring that jurisdiction thus cannot take effect without such an exercise of discretion on the part of the prosecutor. In my opinion where a provision takes effect because a person acts in a particular way, but would not take effect if he acted differently, the person may properly be said to be, by his act, "giving effect" to the provision. By choosing to call a criminal case before a temporary sheriff the prosecutor is thus, in my opinion, in the requisite sense "giving effect" to section 11(6).

[62] At this stage it is necessary to consider whether that conclusion runs counter to the observations made on the section 6(2)(b) argument advanced in Millar v Dickson. In my opinion, it does not. Certainly, the dicta which I have quoted above from that case are couched in terms of section 11 generally. It is, however, necessary to examine the apparent scope of the argument which was then under consideration. Mr Shead's submission, that it would be surprising if their Lordships had overlooked subsection (6) in rejecting the proposition that the prosecutor by bringing proceedings before a temporary sheriff was "giving effect" to section 11, has some apparent force, but is somewhat weakened by his recollection that the point was not focused in the Crown's written case, and that the appellants' counsel were not called upon to deal with the point in oral argument. In any event, it seems to me, on a close examination of what their Lordships said, that their attention appears not to have been drawn specifically to subsection (6), and that their views appear to relate to whether the prosecutor by proceeding before a temporary sheriff could be said to be "giving effect" to the provisions of section 11 dealing with the appointment of temporary sheriffs rather than to the provisions dealing with the jurisdiction conferred on them. That is perhaps clearest from the observation of Lord Clyde at paragraph 84 ("In my view it is too strained a construction of section 57(3) [sic; sc. section 6(2)(b)] to say that proceeding with a case before a temporary sheriff is giving effect to the power to appoint temporary sheriffs"). That is, it seems to me, also the proper inference to be drawn from what Lord Bingham of Cornhill said at paragraph 30. He pointed out that the appointment of temporary sheriffs was giving effect to section 11, but said that in prosecuting an accused person before a temporary sheriff the Lord Advocate (through the procurator fiscal) was performing a different and distinct function. With that, as well as with Lord Clyde's observation, I agree. But Lord Bingham does not appear to have considered, presumably because he was not invited to do so, whether the act of the procurator fiscal in proceeding before a temporary sheriff could be said to be giving effect to the provisions of section 11(6) which conferred a criminal jurisdiction on the temporary sheriff. His conclusion that the act of the prosecutor "did not give effect to or enforce section 11" must in my view be read in that context. Lord Hope of Craighead (at paragraph 69) set the context of his observations by stating that "Section 11 of the 1971 Act dealt with the appointment of temporary sheriffs. It did not define the circumstances in which they were to be used". I cannot accept that his Lordship would have expressed himself in that way, and would have made no reference to subsection (6), if that subsection had been the focus of submissions before him. As his Lordship pointed out, the appointment of temporary sheriffs was not itself incompatible with any of the Convention rights. He continued:

"Everything depended on the use that was made of them as to whether there was incompatibility. But no rules for their use were laid down by the statute, so it cannot be said that there was anything in section 11 to which effect was being given by the prosecutor."

While section 11 may be said not to have laid down "rules" for the "use" of temporary sheriffs, subsection (6) conferred on them the jurisdiction and powers that they were to exercise when used. It was the exercise of that jurisdiction which was, by virtue of their lack of Article 6 independence, ex hypothesi incompatible with the accused's Convention rights. It seems to me to be quite clear, from the terms in which he expressed himself, that Lord Hope had not been asked to consider whether a procurator fiscal in calling a case before a temporary sheriff was to be regarded as giving effect to the provision of section 11(6) conferring on the temporary sheriff the whole criminal jurisdiction of a sheriff, and had not addressed his mind to that issue. It is inconceivable that if he had been considering that issue he would have expressed his conclusions without mention of subsection (6) or analysis of the issue raised by it. I am therefore of opinion that the observations of their Lordships in Millar v Dickson are to be construed as rejecting no more than the proposition that by proceeding before a temporary sheriff a prosecutor was giving effect to the provisions of section 11 dealing with the appointment of temporary sheriffs. They did not consider, and in particular did not reject, the proposition now put before us by the Advocate depute in the present case.


Conclusion

[63] For these reasons I am of opinion that the Advocate depute's fourth submission is not precluded by binding or persuasive authority, and is well founded. The procurators fiscal, in calling the cases against the appellant and the complainer respectively before temporary sheriffs, were giving effect to the provisions of section 11(6) of the 1971 Act. It follows that the prosecutions of the appellant and the complainer were neither unlawful nor ultra vires of the Lord Advocate. I would therefore hold that for that additional reason, as well as those given by your Lordship in the chair, the appeal and the bill of suspension should each be refused.


APPEAL COURT, HIGH COURT OF JUSTICIARY

 

Lord Justice General

Lord Osborne

Lord Macfadyen

Lord Nimmo Smith

Lord Penrose

 

 

 

 

 

 

 

 

 

[2007] HCJAC 65

Appeal Nos: XC467/03

XJ141/03

 

OPINION OF LORD NIMMO SMITH

 

in

 

APPEAL

 

by

 

KENNETH ROBERT DICKSON

Appellant;

 

against

 

HER MAJESTY'S ADVOCATE

Respondent:

 

and

 

BILL OF SUSPENSION

 

by

 

IAIN McNAUGHTON

Complainer;

 

against

 

HER MAJESTY'S ADVOCATE

Respondent:

 

_______

 

 

Act: Shead, C. Mitchell; Drummond Miler (Appellant and Complainer)

Alt: Stewart QC, A.D.; Crown Agent: Moynihan, Q.C. on behalf of the Advocate General; OSAG (Respondent)

 

15 November 2007

[64] I am in entire agreement with the Opinions of your Lordship in the chair and Lord Macfadyen, to which there is nothing that I wish to add.

 


APPEAL COURT, HIGH COURT OF JUSTICIARY

 

Lord Justice General

Lord Osborne

Lord Macfadyen

Lord Nimmo Smith

Lord Penrose

 

 

 

 

 

 

 

 

 

[2007] HCJAC 65

Appeal Nos: XC467/03

XJ141/03

 

OPINION OF LORD PENROSE

 

in

 

APPEAL

 

by

 

KENNETH ROBERT DICKSON

Appellant;

 

against

 

HER MAJESTY'S ADVOCATE

Respondent:

 

and

 

BILL OF SUSPENSION

 

by

 

IAIN McNAUGHTON

Complainer;

 

against

 

HER MAJESTY'S ADVOCATE

Respondent:

 

_______

 

 

Act: Shead, C. Mitchell; Drummond Miler (Appellant and Complainer)

Alt: Stewart QC, A.D.; Crown Agent: Moynihan, Q.C. on behalf of the Advocate General; OSAG (Respondent)

 

15 November 2007

[65] I agree with the Opinion of your Lordship in the chair and with the disposals proposed.