11 November 1999
The bills called before the High Court of Justiciary, comprising the Lord Justice-Clerk (Cullen), Lord Prosser and Lord Reed for a hearing.
At advising, on 11 November 1999—
At this point it is convenient for me to set out a brief account of the proceedings in the sheriff court. On 5 May 1999 the complainers Hugh Latta Starrs and James Wilson Chalmers, to whom I refer as ‘the accused’, appeared for trial before Temporary Sheriff Crowe in Linlithgow sheriff court on a summary complaint. The trial was commenced but not concluded on that date. The trial diet was adjourned for the completion of the evidence until 8 July. On that date the case did not call before Temporary Sheriff Crowe owing to the fact that the procurator fiscal depute who was allocated to the trial had to deal with other court business. The case called before Temporary Sheriff Alexander who adjourned it to a notional trial diet on 16 July. He also allowed the accused, on cause shown, to raise a ‘devolution issue’ which he continued to the notional diet. No minute under r 40.5 of the Act of Adjournal (Devolution Issues Rules) 1999 was lodged at that stage. On 16 July the case came before Sheriff Ross, who was a permanent sheriff. Ex proprio motu he adjourned the trial diet until 21 July. By then the accused had lodged and intimated minutes under r 40.5. The sheriff continued consideration of them to that date. On 21 July the case came before Sheriff Crowe once more. Having heard parties on the question whether Temporary Sheriff Crowe should decline to deal with the matters raised in the minutes, he held that it was for Temporary Sheriff Crowe to decide whether to decline to do so. On 30 July, having heard the parties, Temporary Sheriff Crowe repelled the submission made on behalf of the accused that he should decline to adjudicate on the devolution issue which they were seeking to raise. He refused to allow the accused to adjust their minutes, and decided the issue against them. He adjourned the diet of trial to a later date. Before the trial was resumed the accused presented their bills of advocation which seek to advocate the decision made on 30 July. In her bill of advocation the procurator fiscal challenges the decision of Temporary Sheriff Alexander on 8 July to allow a devolution issue to be raised, in respect that he was not the sheriff presiding at the trial of the accused.
In this court senior and junior counsel appeared for the first accused, and separate senior and junior counsel for the second. The Solicitor General appeared for the procurator fiscal and, along with junior counsel, for the Lord Advocate, to whom the devolution issue had been duly intimated in terms of r 40.5. The present case was heard along with a bill of advocation for the procurator fiscal in the case against Gary John Johnstone and David Michael Gunn, in which a similar question in regard to a temporary sheriff was raised.
Before coming to that issue, there are three matters with which I can deal shortly at this stage. First, in the light of the decision of the court in HM Advocate v Montgomery, it is no longer in dispute that it was within the discretion of the sheriff to allow the devolution minutes to be adjusted. The discussion in this court embraced the matters which the accused had sought to raise on 30 July. Secondly, there was a question before this court as to whether the accused were able to point to a relevant ‘act’ on the part of the Lord Advocate for the purposes of sec 57(2). The primary submission made by senior counsel for the first accused was that the relevant ‘act’ consisted of his instructing the procurator fiscal to continue with the trial. In making that submission counsel confined himself to what happened after 20 May 1999. Counsel's submissions implied that whether there was an ‘act’ on the part of the Lord Advocate depended on whether he had given an instruction to the procurator fiscal. This was over-exacting, since, while the procurator fiscal has a separate legal persona from the Lord Advocate, he or she represents him in both solemn and summary proceedings, as the Solicitor General accepted. Further, the Solicitor General informed the court that the Lord Advocate expected the procurator fiscal to be bound by the Convention as he is, and that he would not take any point that something which was done by the procurator fiscal was not his act as Lord Advocate and as a member of the Scottish Executive. Accordingly I have no difficulty in accepting that the act of the procurator fiscal in continuing the prosecution, for example on 8 July, constituted an act of the Lord Advocate. In these circumstances I do not require to deal with the secondary submission which was advanced by counsel for the first accused that in any event the failure of the Lord Advocate to act, in respect that he had failed to instruct the procurator fiscal to discontinue the prosecution, provided a relevant basis for the raising of the devolution issue.
Thirdly, parties were at issue as to whether, as the accused maintained, it was competent for a sheriff other than the trial sheriff—in this case Temporary Sheriff Crowe—to deal with the devolution issue raised by them, and whether it was competent for a separate diet, separate that is from a trial diet, to be appointed to be used for that purpose. Counsel for the first accused submitted that in view of the admitted pecuniary interest of the temporary sheriff it was inappropriate he should hear the devolution issue. There was no procedural reason why another sheriff should not hear argument on and determine that issue. He pointed out that the devolution issue had nothing to do with the evidence in, or the subject matter of, the trial. It was commonplace for summary cases to call before different sheriffs at various stages of the proceedings. He referred to secs 144, 146 and 148 of the Criminal Procedure (Scotland) Act 1995. The practice of appointing notional trial diets had grown up in order to allow trials to be adjourned where the availability of the trial sheriff was in doubt. He also pointed out that after a finding of guilty in solemn proceedings it was competent for any sheriff to remit an accused for sentencing in the High Court (Borland v HM Advocate). If the temporary sheriff in the present case had declined to deal with the devolution issue, he could have adjourned the diet to a further trial diet at which the issue could be determined by a permanent sheriff. Alternatively, in view of the terms of r 40.5(2) and 40.8 of the Act of Adjournal, it would have been proper for a special diet to have been appointed for the purpose.
In my view Temporary Sheriff Crowe could not competently have adjourned the case so that another sheriff could deal with the devolution issue. The trial was not yet completed and he could not take that action in mediis rebus. As the Solicitor General put it, the trial sheriff ‘cannot step aside’. The examples founded on by counsel were not in point. None of them dealt with the position of a trial sheriff who was able to proceed and dispose of a point which had been raised in the course of the trial. There was no warrant for a special diet to deal with the devolution issue. As the court observed in Montgomery, a devolution issue has to be determined, whenever it arises, within the procedure for which the 1995 Act makes provision. It was accordingly for Temporary Sheriff Crowe, as the trial sheriff, to determine the devolution issue (notwithstanding the fact that he might be said, in a sense, to have an interest in the outcome: the issue was one which could only arise in proceedings before a temporary sheriff, and any such sheriff would be in a similar position to Temporary Sheriff Crowe). If Temporary Sheriff Crowe had resolved the devolution issue in favour of the accused, the correct course would have been for him to discharge the trial diet, so that a fresh diet of trial could proceed before a permanent sheriff (cf Macleod v Williamson). It also follows from what I have said that on 8 July Temporary Sheriff Alexander was not entitled to allow the devolution issue to be raised. That also was a matter for Temporary Sheriff Crowe. In these circumstances the bill of advocation for the procurator fiscal is, in my view, well founded.
I come then to the main issue which was debated at some length, namely whether a temporary sheriff such as Temporary Sheriff Crowe, was an ‘independent and impartial tribunal’ in the sense of art 6(1) of the Convention. I should, of course, make it clear that this point does not involve any reflection whatsoever on his conduct. The point is of general importance, not only for its potential effect in individual cases but also for any future consideration of the terms of the relevant legislation and any appointments made thereunder.
The first appearance of the temporary sheriff on the legislative scene was with the enactment of sec 11 of the Sheriff Courts (Scotland) Act 1971. Prior to that Act, the supplementing of the normal shrieval bench could be achieved in one or other of two ways. The first was by the appointment of an interim sheriff-substitute. Such an appointment could be made, on a full-time basis, where a sheriff was granted leave of absence or where a vacancy required to be covered. The second method was the use of a ‘paid honorary sheriff-substitute’. In their report on the sheriff court, the Committee chaired by Lord Grant (Cmnd 3248, 1967) stated that this method was used in order to deal with short-term emergencies (para 404). The committee did not recommend any change from the practice of appointing interim and ‘paid honorary’ sheriffs-substitute.
The court was also referred to the discussion of the Sheriff Courts (Scotland) Bill on 6 July 1971 before the House of Lords sitting in committee. During the course of that discussion Lord Wheatley enquired whether it was intended that, in addition to appointing sheriffs to occupy the various sheriff courts throughout Scotland, there should also be appointed a pool of sheriffs who would act in a ‘floating’ capacity and act as temporary sheriffs where that was required. He evidently had in mind that they would be appointed with the full status of sheriff, would require to have been qualified for ten years in the same way as a permanent sheriff, and would be paid the appropriate salary for that grade of sheriff. In reply Baroness Tweedsmuir of Belhelvie confirmed that it was intended to introduce such a pool of floating sheriffs. She stated that anyone who had the post of temporary sheriff would receive the same salary as a full sheriff unless he was there, as she put it, ‘purely on a casual basis’, in which case he would be given a salary for a day. She added: ‘It has been thought that by the use of these temporary appointments it is possible to provide experience for those who we hope will become sheriffs one day’ (cols 883–885).
Section 11 of the 1971 Act, as amended and in force during the period with which this case is concerned, makes provision by subsecs (1), (1A) and (1B) for the appointment of a temporary sheriff principal where there is a vacancy or the sheriff principal is unable to perform, or rules that he is precluded from performing, all or some part of his duties. Section 11 provides thereafter: ‘(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. (3) A person shall not be appointed to be a temporary sheriff principal or a temporary sheriff unless he is legally qualified and has been so qualified—(a) in the case of an appointment as a temporary sheriff principal, for at least ten years; (b) in the case of an appointment as a temporary sheriff, for at least five years. For the purposes of this subsection, a person shall be legally qualified if he is an advocate or a solicitor. (4) The appointment of a temporary sheriff principal or of a temporary sheriff shall subsist until recalled by the Secretary of State. (4A) No appointment under this section of a person to be a temporary sheriff principal or temporary sheriff shall extend beyond the day on which the person reaches the age of 70. (4B) Subsection (4A) above is subject to section 26(4) to (6) of the Judicial Pensions and Retirement Act 1993 (power to authorise continuance in office to the age of 75). (5) If the Secretary of State, on appointing any person to be a temporary sheriff principal or a temporary sheriff, so directs, the provisions of section 6(1) of this Act shall apply in relation to that person as they apply in relation to a person holding the office of sheriff. (6) A person appointed to be a temporary sheriff principal of, or 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 principal or, as the case may be, sheriff in that sheriffdom....(8) The Secretary of State may pay to any person appointed to be a temporary sheriff principal or a temporary sheriff such remuneration and allowances as the Treasury, on the recommendation of the Secretary of State, may determine.’
It may be noted, by way of comparison, that a person may not be appointed a permanent sheriff unless he has been legally qualified as an advocate or a solicitor for at least ten years (sec 5 (1)); the retiring age for a sheriff is 70 (sec 5A(1), subject to subsec (2)); the removal of a sheriff from office is governed by the terms of sec 12; under sec 6(1) a sheriff is prohibited from engaging, either directly or indirectly, in any private practice or business, or being engaged in partnership with or employed by, or acting as the agent for, any person so engaged; and the sheriff receives, in terms of sec 14 of the 1907 Act, ‘such salary as to the Treasury may seem meet’, as a charge on the Consolidated Fund. I should add that since the coming into force of the 1971 Act a number of ‘floating’ sheriffs, presently 11 in number, have been appointed, with the full status and salary of a permanent sheriff and are subject to direction as to the sheriffdom in which they sit from time to time.
For the assistance of the court the Solicitor General provided a useful description of the manner in which temporary sheriffs are appointed and used. That description related almost entirely to the period since May 1997 when the present Lord Advocate assumed office. Its content is not a matter of general public knowledge. The Solicitor General explained that the Scottish Executive had announced its intention to consider proposals for changing the system of appointment. No final decision had been made as to how that function should be exercised. The Scottish Executive intended to consult on that subject as a number of interests were involved. It would then be for the Scottish Parliament to determine what method of appointment should be adopted.
The description given by the Solicitor General of the existing method of appointment was as follows. Although the power of appointment was vested in the Secretary of State, in practice a crucial role was played by the Lord Advocate. The decision that there was a requirement for temporary sheriffs was taken by the Lord Advocate, acting on advice from Scottish Courts Administration (now the Scottish Executive Justice Department). If a requirement for temporary sheriffs was identified, this was advertised in the Scots Law Times. Intimation was also given in writing to those who had previously expressed an interest. A file on each candidate was kept by the Scottish Courts Administration. While there might be a requirement for a particular number of temporary sheriffs, this was treated as a flexible figure. Application forms, which were introduced by the present Lord Advocate, were issued to those who had expressed an interest. They requested information about the applicant's professional qualifications, experience and other details. The applicant was also asked whether he or she had ever been convicted or engaged as a party in any proceedings. The latter question was intended, for example, to find out whether the applicant had been sequestrated or disqualified as a director. The applicant had to supply the names of two referees, one of whom was a member of the judiciary with experience of his or her work in court. The referee required to state whether in his or her opinion the applicant was a fit person to be appointed to be a temporary sheriff. The references were confidential. Some applicants were eliminated at this stage.
A list of applicants was then drawn up by the Lord Advocate with a view to their being interviewed. In doing so he took account of a number of factors, such as geographical spread, gender, expertise, breadth of experience, age and professional qualifications. The aim was to achieve an appropriate balance and, if possible, to divide the appointments equally between men and women and between advocates and solicitors. The present Lord Advocate had a policy of not normally appointing someone to be a temporary sheriff when he was over the age of 65. It was also relevant whether the applicant might be an appropriate person to receive a permanent appointment and should be given some experience on the bench prior to that. The Solicitor General pointed out that, in making recommendations for the appointment of permanent sheriffs, sheriffs principal set store by the fact that a person had previous experience in sitting as a temporary sheriff. In general, appointment to the shrieval bench was made nowadays from those who had gained that experience. Service as a temporary sheriff could be regarded as providing proof of suitability for a permanent appointment. A sheriff principal, normally sitting with a sheriff, interviewed the applicants. The same sheriff principal and sheriff did not interview all of them. A report of the interview was prepared and sent to Scottish Courts Administration, and in turn to the Lord Advocate with any additional comments which were thought appropriate. The applicants were assessed as appointable, or non-appointable, and the appointable were graded according to whether they were regarded as exceptional, ‘good plus’ or good. Some candidates were not required to be interviewed. These were persons who had a particular standing or expertise, such as Queen's Counsel, Advocate-deputes, solicitors who had held high office and academic lawyers. This was the practice which had been followed in the case of recent holders of the office of Lord Advocate. The rationale of this was to persuade persons who might otherwise not apply, and to have the benefit of their knowledge and experience, so enhancing the standard of temporary sheriffs. In the case of Advocate-deputes who had finished their period in Crown Office, it might assist them in re-establishing their practice, as well as taking advantage of the experience which they had gained. In addition a number of retired sheriffs had been put forward in this way.
With the benefit of the reports from the sheriffs principal and comments by officials, the Lord Advocate drew up a list of provisional candidates for appointment. He consulted with the Solicitor General and, more importantly, with the Lord President, on whose advice he placed considerable reliance. The Lord Advocate would then forward the finalised list to Scottish Courts Administration for the appointments to be made.
The Solicitor General observed that as the number of temporary sheriffs had increased over the years, the method by which their appointment was arrived at had undergone some change. It had become more formal to some extent. Application forms and interviews had been introduced.
Since the present Lord Advocate had taken office there had been two rounds of applications and appointments. In 1997 there had been 180 applications. Forty-nine candidates had been interviewed. Twenty-four appointments were made, and eight further persons were appointed without being interviewed. In 1998 there were 77 applications. Twenty-six candidates were interviewed. Twenty-three appointments were made, and in addition three persons were appointed without being interviewed. In each case appointments were made in December for one year only, being the following calendar year. Accordingly the appointments made as the result of the round in 1998, including those of Temporary Sheriffs Crowe and Alexander, will expire on 31 December 1999. A number of isolated appointments had also been made outwith these rounds. The court was provided with a copy of the terms in which the appointment or ‘commission’ of a temporary sheriff is expressed. It stated: ‘In exercise of the powers conferred by sec 11 of the Sheriff Courts (Scotland) Act 1971, the Secretary of State hereby appoints…being a person qualified to fill the office of temporary sheriff, to act as temporary sheriff for the undernoted sheriffdoms and at such courts within the said sheriffdoms from time to time as the Secretary of State may direct. The appointment shall subsist until the Thirty First Day of December…unless previously recalled by the Secretary of State.’ Undernoted were the names of all sheriffdoms in Scotland. The document was signed by the Deputy Director, Scottish Courts Administration, on behalf of the Secretary of State for Scotland.
The Solicitor General provided the court with some information which illustrated the growth in the use of temporary sheriffs. In 1985 there were 88 permanent sheriffs and 61 temporary sheriffs. At the present time the corresponding numbers were respectively 110 and 129 respectively. In the light of the above, of the 129 temporary sheriffs, about 26 appointments had been appointed for the first time in 1998, and the remainder were persons whose commissions had been renewed. In 1989/90 the proportion of work, in terms of court days, carried out by temporary sheriffs was a little over 18 per cent. In 1998/9 it was just under 25 per cent.
Before embarking on his duties the temporary sheriff took two oaths, namely the Oath of Allegiance and the Judicial Oath, before the Lord President. He also required to undertake five days of judicial training, including training in respect of judicial standards. In addition he had two days training during the course of his first year of appointment. Each month the temporary sheriff required to provide Scottish Courts Administration with a list of the days on which he would be available. When there was a requirement for a temporary sheriff in a particular sheriff court, the sheriff clerk at that court would phone a booking clerk in Scottish Courts Administration. This could arise at short notice. The booking clerk had a list of the temporary sheriffs who were available. There was no restriction on the work which a temporary sheriff could undertake, but the majority of cases on which they sat were summary criminal cases. However, they could and did undertake jury trials and fatal accident inquiries. The booking of a temporary sheriff for a particular day was not on the basis that he was particularly well qualified for the case or cases which were to be heard by him that day. The booking clerk was instructed to make work available as fairly as possible depending, of course, on who was available to sit. A temporary sheriff who was a solicitor was not allowed to sit in the sheriff court of the area in which he practised, and the booking clerk required to observe that rule. There was no similar rule in the case of advocates. The Solicitor General said that there was a variation in the amount of work which was done by the individual temporary sheriff, ranging from a minimum of 20 days per annum to those few who were sitting almost full-time. The organisation of the sheriff courts within the sheriffdom was a matter for the sheriff principal, who was given primacy in regard to both permanent and temporary sheriffs. Reference was made to secs 15–17 of the 1971 Act. The Solicitor General emphasised that neither the Lord Advocate nor the procurator fiscal had any control over whether a given case was taken by a permanent sheriff or a temporary sheriff. Neither had any say as to whether a temporary sheriff was allocated to a particular sheriffdom or sheriff court.
The Solicitor General went on to explain that the practice was for the Lord Advocate to consider the re-appointment of each temporary sheriff. In doing so, he offered to consult with the sheriffs principal, the sheriff clerks, the President of the Law Society and the Dean of the Faculty of Advocates. This offer was not always taken up. Thereafter he consulted the Lord President. While a temporary sheriff would normally be expected to be re-appointed, there were a number of grounds on which he would not be re-appointed. Each temporary sheriff was expected to serve for a minimum of 20 days per annum. This requirement might be waived if there was good reason, such as illness. The commission would not be renewed if the temporary sheriff did not want this to happen, or if he reached the age of 65, although it was open to him to make representations for the renewal of his commission, which could be successful. The age limit was introduced by the present Lord Advocate in 1998 when the commissions of the temporary sheriff who had reached that age were not renewed. Since May 1997 no commission had been recalled during its currency. The Solicitor General emphasised that the renewal of a commission was ‘virtually automatic’ provided that the temporary sheriff served at least 20 days during the year and remained under the age of 65 and there were no adverse circumstances relating to the fitness for office. If there was a serious issue as to the behaviour or private life of the temporary sheriff, he was informed that the commission would not be renewed and was given an explanation. The Solicitor General gave a number of examples of cases in which this course of action had been taken by the Lord Advocate. In one case the temporary sheriff made a statement to a police officer which gave rise to an allegation of criminal conduct on his part. Crown counsel decided that he should not be prosecuted. Some months before the expiry of his commission he was sent a letter informing him that in view of his admitted conduct it was not appropriate that he should be re-appointed. He contested this and a meeting was held at which representations were made on his behalf by counsel, but having taken advice the Lord Advocate confirmed his decision, and Scottish Courts Administration were informed that the temporary sheriff was not to be used during the remainder of the year. On another occasion two temporary sheriffs were removed as they were the subject of proceedings in regard to disqualification from holding office as company directors. In the case of one of them there was a failure to inform the Lord Advocate and officials of certain matters where there was a clear obligation to do so. In the case of the other, certain personal difficulties had reflected on the temporary sheriff's fitness to hold office. In a further case the commission was suspended due to the health and private life of the temporary sheriff, but no decision was taken as to his removal. There was also a case during the time of a previous Lord Advocate in which a commission was not renewed where the temporary sheriff had been unable to deal with civil work. The Solicitor General accepted that while the Lord Advocate was concerned with the question whether a temporary sheriff was fit to carry out the duties of his office, he did not apply a particular test in arriving at his decision. He was not able to say that in every case a temporary sheriff who was not re-appointed received an explanation. His understanding was that over the years the practice in dealing with such cases had evolved. What had been done some years ago would not be followed today.
The Solicitor General was unable to explain why a period of one year had been chosen. He accepted that, in practice, the system was not one of ‘temporary’ appointments (other than in the sense that the appointments were formally for a period of one year, and lacked security of tenure), but was one of part-time appointments which were intended to be long-term.
The Solicitor General accepted that it was also possible for a temporary sheriff to be ‘sidelined’ without any formal recall or non-renewal of his appointment. In other words, a temporary sheriff could simply not be ‘used’, as a matter of administrative practice. There was a suggestion made on behalf of the accused, on the basis of anecdotal material, that this had happened to individuals as a result of the attitude of officials towards them (see, eg, HL Deb, 6 March 1997, col 2063; cf col 2083).
The Solicitor General explained that temporary sheriffs were paid per diem and did not qualify for a pension, unlike permanent sheriffs, who received a salary and a pension. He accepted that some temporary sheriffs, but by no means all, were dependent on their earnings from that source. He also accepted that some temporary sheriffs were seeking preferment to permanent appointments as sheriffs. Most persons now appointed as permanent sheriffs had previously served as temporary sheriffs. Temporary sheriffs formed in effect a pool from which permanent appointments might be made, although not all permanent appointments came from that pool. If a person were to apply for a permanent appointment without having previously served as a temporary sheriff, then he might be encouraged to seek a temporary appointment first, effectively as a form of probationary service.
Counsel for the accused produced a copy of the notes issued by Scottish Courts Administration to candidates for appointment as temporary sheriffs. Those notes include the following: ‘7 Permanent Appointments: whilst, in recent years, many of those successful in obtaining appointments to the permanent shrieval Bench have earlier served as temporary sheriffs, it should be noted that, at any point in time, the number of temporary sheriffs interested in a permanent appointment very substantially exceeds the number of vacancies and there is no guarantee whatsoever that service as a temporary sheriff will eventually lead to a permanent appointment.’
Article 6(1) of the Convention states: ‘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…’ The discussion in this court was directed to both independence and impartiality. The court was referred to a number of decisions of the European Court of Human Rights and of the European Commission. In Findlay v United Kingdom at para 73 the court stated that: ‘In order to establish whether a tribunal can be considered as "independent", regard must be had inter alia to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence. As to the question of "impartiality", there are two aspects to this requirement. First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect.’ Similar statements may be found in the earlier cases of Bryan v United Kingdom at para 37 and Pullar v United Kingdom at para 30.
As can be seen from this quotation and the decided cases the question whether a tribunal is independent and impartial embraces the question whether it presents the appearance of independence from an objective standpoint. For example, in De Cubber v Belgium the fact that one of the judges of the court which had given judgment on the charges against the applicant had previously acted as investigating judge gave rise to misgivings as to the court's impartiality. In that case the court observed, at para 30, that: ‘a restrictive interpretation of Article 6(1)—notably in regard to the observance of the fundamental principle of the impartiality of the courts—would not be consonant with the object and purpose of the provision, bearing in mind the prominent place which the right to a fair trial holds in a democratic society within the meaning of the Convention.’
In a number of cases the court has found that lack of independence and lack of impartiality are inter-linked. Thus in Bryan v United Kingdom the court recognised that the fact that the appointment of an inspector, who had the power to determine a planning appeal in which the policies of the appointing minister might be in issue, could be revoked by the minister at any time gave rise to a question as to his independence and impartiality. In the circumstances, it did not fall foul of art 6(1) by reason of the scope of review which was available to the High Court in England. In Findlay v United Kingdom the court was satisfied that there was objective justification for doubts as to the independence and impartiality of the members of a court martial where they were subordinate to the convening officer who acted as the prosecutor. In that case the process of review did not provide an adequate guarantee. In çiraklar the court observed that it was difficult to dissociate impartiality from independence where the members of a national security court included a military judge. While there were certain constitutional safeguards, the members of the court were still servicemen and remained subject to military discipline and assessment. Their term of office was only four years. In these circumstances the court held (at para 40) that there was a legitimate fear of their being influenced by considerations which had nothing to do with the nature of the case. There was objective justification for fear of lack of independence and impartiality.
In the same connection this court was referred to a number of Canadian decisions on the interpretation and application of sec 11(d) of the Canadian Charter of Rights and Freedoms which states: ‘Any person charged with an offence has the right…(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.’ These were the decisions of the Supreme Court of Canada in Valente v The Queen,which was concerned with the question whether, in the light of the control exercised by the executive, a judge of the Ontario Provincial Court (Criminal Division) was an independent tribunal, and Attorney General of Quebec v Lippé, which was concerned with the question whether, in the case of part-time municipal court judges who were allowed to practise law, there was a lack of ‘institutional impartiality’. The court was also referred to the decision of Vertes J in the Northwest Territories Supreme Court in Ref re: the Territorial Court Act (NWT), sec 6(2), which was concerned with a number of questions in regard to the appointment of deputy territorial judges for fixed terms.
It should not be assumed that everything that is considered to be essential or important in the Canadian context has the same significance in the application of the Convention. However, these decisions contain a full analysis and discussion of the concepts of independence and impartiality which sec 11(d) of the Canadian Charter shares with art 6(1) of the Convention and, so far as I have been able to determine, there is in this respect no essential difference of approach.
In Valente v The Queen Le Dain J, who delivered the judgment of the court, stated at pp 169–170: ‘The word "independent" in section 11(d) reflects or embodies the traditional constitutional value of judicial independence. As such, it connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly to the executive branch of government, that rests on objective conditions or guarantees.’ Later, at p 172, he said: ‘But a tribunal which lacks the objective status or relationship of independence cannot be held to be independent within the meaning of section 11(d), regardless of how it may appear to have acted in the particular adjudication.’ As regards the word ‘impartial’ he observed at p 169 that it connoted ‘absence of bias, actual or perceived’. At pp 172–173 he stated: ‘Both independence and impartiality are fundamental not only to the capacity to do justice in a particular case but also to individual and public confidence in the administration of justice. Without that confidence the system cannot command the respect and acceptance that are essential to its effective operation. It is, therefore, important that a tribunal should be perceived as independent, as well as impartial, and that the test for independence should include that perception. The perception must, however, as I have suggested, be a perception of whether the tribunal enjoys the essential objective conditions or guarantees of judicial independence, and not a perception of how it will in fact act, regardless of whether it enjoys such conditions or guarantees.’
In Attorney General v Lippé Lamer CJ, whose judgment in this respect was concurred in by the other members of the court, said at p 139: ‘The overall objective of guaranteeing judicial independence is to ensure a reasonable perception of impartiality; judicial independence is but a "means" to this "end". If judges could be perceived as "impartial" without judicial "independence", the requirement of "independence" would be unnecessary. Independence is the cornerstone, a necessary prerequisite, for judicial impartiality.’ He went on to say at p 140: ‘Notwithstanding judicial independence, there may also exist a reasonable apprehension of bias on an institutional or structural level. Although the concept of institutional impartiality has never before been recognised by this court, the constitutional guarantee of an "independent and impartial tribunal" has to be broad enough to encompass this. Just as the requirement of judicial independence has both an individual and institutional aspect…,so too must the requirement of judicial impartiality.’
In Ref re: Territorial Court Act (NWT) Vertes J expressed the same idea when he stated at p 146 in regard to concepts of independence and impartiality: ‘Recent jurisprudence has recast these concepts as separate and distinct values. They are nevertheless still linked together as attributes of each other. Independence is the necessary precondition to impartiality. It is the sine qua non for attaining the objective of impartiality. Hence there is a concern with the status, both individual and institutional, of the decision-maker. The decision-maker could be independent and yet not be impartial (on a specific case basis) but a decision-maker that is not independent cannot by definition be impartial (on an institutional basis).’
In presenting his submissions, which were adopted by senior counsel for the second accused with some additional argument, senior counsel for the first accused founded on a number of aspects of the conditions on which advocates or solicitors served as temporary sheriffs. While he regarded each of them as free-standing, he invited the court, if it was so minded, to consider them together. The first of them was the fact that the term of office of a temporary sheriff was limited to one year. The period for which the appointment of a tribunal subsisted was plainly a relevant factor in considering its independence. In Campbell and Fell v United Kingdom, which was concerned with a prison board of visitors, a term of three years or less as the Home Secretary might appoint was regarded as ‘admittedly short’, though it was accepted by the court that there were understandable reasons for that. In çiraklar v Turkey the four year term of office, which was renewable, was plainly one of the factors which led the court to conclude that there was a lack of objective independence and impartiality. Counsel also drew attention to the Latimer House Guidelines for the Commonwealth which were adopted by the Commonwealth Parliamentary Association on 19 June 1998. In regard to the objective of preserving judicial independence, the Guidelines stated the following, inter alia: ‘Judicial appointments should normally be permanent; whilst in some jurisdictions, contract appointments may be inevitable, such appointments should be subject to appropriate security of tenure.’ Counsel submitted that the very short period of office in the present case raised a presumption of lack of independence.
Counsel went on to present a number of other factors, which, in view of their interrelationship, can be appropriately considered together. In presenting these submissions he drew attention to the fact that in Valente v The Queen Le Dain J at pp 176, 184 and 187 expressed the opinion that the essential conditions of judicial independence for the purposes of sec 11(d) of the Canadian Charter were security of tenure, financial security and institutional independence. Counsel indicated that he founded primarily on the first and second of these indicia.Section 11(4) of the 1971 Act enabled the appointment of a temporary sheriff to be recalled by the executive, as could be perceived by the well-informed observer. There were no formal safeguards against that recall. As regards the reappointment of a temporary sheriff there were no published guidelines or criteria. A temporary sheriff was removable at will. There was no formal restraint on the recalling of an appointment, or on the failure to renew an appointment, for example, because the office-holder had reached 65 years of age. There was nothing to prevent the withholding of work from a temporary sheriff during the currency of his commission. There were no published guidelines as to the procedures. No reasons required to be given and there was no appeal. Counsel founded upon the case of Bryan v United Kingdom as being in point in regard to the removability of the tribunal. He also placed reliance on the decision of the Norwegian Supreme Court in Plahte v Norwegian State, in which the court set aside a decision by a temporary judge in a litigation against the state on the ground that, in terms of a statutory provision, he was ‘incompetent’ in respect that there were ‘particular circumstances…which are liable to undermine confidence in his impartiality’, (according to a translation of the Norwegian text which was provided). Counsel also relied on certain of the Basic Principles on the Independence of the Judiciary which were adopted by resolutions of the General Assembly of the United Nations in 1985 as follows: ‘12. Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists....18. Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties. 19. All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct.’
Counsel referred to a passage in the judgment in Valente v The Queen in which Le Dain J stated that it might be reasonably perceived that the essentials of security of tenure were: ‘that the judge be removable only for cause, and that cause be subject to independent review and determination by a process at which the judge affected is afforded a full opportunity to be heard. The essence of security of tenure for the purposes of section 11(d) is a tenure, whether until an age of retirement, for a fixed term, or for a specific adjudicated task, that is secure against interference by the Executive or other appointing authority in a discretionary or arbitrary manner’. Counsel said that he accepted that there could be no such thing as the absolute protection of a judge from influences, but in the present case the important guarantee of objective impartiality was lacking, since there was the risk that a temporary sheriff who was interested in obtaining a permanent appointment, or at least his re-appointment as a temporary sheriff, might be influenced by the desire to avoid harming his prospects (cf Ref re: Territorial Court Act (NWT) at p 172). It was not enough for the Solicitor General to refer to the practice which had been followed in recent years. The question was whether the framework within which the temporary sheriff worked provided protection against improper interference or influence.
Counsel also founded on the fact that temporary sheriffs were appointed, or ruled out from further appointment, at the instance of the Lord Advocate. The present holder of that office had acknowledged that he still retained his previous role in the appointment of judges. Section 48(5) of the Scotland Act provided for his independence, but only in respect of his responsibility for the prosecution of crime. He was now a member of the Scottish Executive which had collective responsibility for the actions of each of them (secs 44(1) and 52(4)). At the same time the Lord Advocate was master of the instance in all criminal prosecutions in Scotland (Boyle v HM Advocate at p 37). Although the procurator fiscal had a separate legal persona he was appointed to and removed from office by the Lord Advocate, in accordance with sec 1(2) of the Sheriff Court and Legal Officers (Scotland) Act 1927. The system of Crown appeals involved the possibility that reports made by procurators fiscal to the Crown Office would on occasion contain criticisms of the conduct or performance of a temporary sheriff. It was also to be noted that the Lord Advocate had imposed on temporary sheriffs his own rule as to the age of retirement.
In the result, counsel submitted, the temporary sheriff occupied a role which was subordinate to one of the parties. That was inconsistent with being independent (reference was made to Sramek v Austria and Piersack v Belgium). Their security of tenure was inferior to that of permanent sheriffs. This had the effect of creating two classes of sheriff. It was likely to give rise to a perception of inferiority in quality. Furthermore, temporary sheriffs did not have financial security and in this respect also they were inferior to permanent sheriffs. They were paid for their work as a matter of ‘grace and favour’ rather than by way of a salary. They did not qualify for non-contributory pensions. The Sheriffs Pensions (Scotland) Act 1961 did not apply to them. They did not receive either sick or holiday pay. A temporary sheriff was paid at half rate for writing days. The arrangement for his sitting was liable to be cancelled at short notice, in which case he was not paid the full daily rate. Such an inferiority produced a pressure on some of them to seek a permanent appointment.
Senior counsel for the second accused added to these submissions. He drew attention to the paper presented by Dato Param Cumaraswamy, the Special Rapporteur on the Independence of the Judiciary appointed by the UN Commission on Human Rights, at the Seminar of the Commonwealth Magistrates and Judges' Association at Larnaca in October 1998. In that paper he reviewed the international and regional standards for the protection of judicial independence (Journal of the Commonwealth Magistrates and Judges' Association, vol 12, no 4). At p 11 he referred to the decision in Plahte v Norwegian State,observing: ‘This decision should send alarm bells to some jurisdictions where temporary judges are appointed as a matter of course without regard to the grave constitutional flaw in such appointment and the resulting illegality of the judgments delivered by such judges.’ He went on to point out that a similar situation had arisen in Pakistan in 1995 and more recently in Peru.
The last aspect upon which counsel for the first accused founded was the fact that temporary sheriffs were permitted to continue in the practice of the law. He submitted that there were insufficient safeguards against conflict of interest. He referred to Attorney General of Quebec v Lippé in which the court found the practice of law was prima facie incompatible with the function of a judge, although it was persuaded that certain safeguards were sufficient to provide institutional impartiality. These consisted in the fact that part-time judges took an oath of office, that they enjoyed judicial immunity and that they were required to conform to a code of ethics. It was of interest to note that in Ref re: the Territorial Court Act (NWT) Vertes J distinguished that decision in respect that the part-time municipal court judge with which Attorney General v Lippé was concerned had been appointed ‘to hold office during good behaviour’ until the retirement age of 70 and did not hold a term appointment; that he could not be removed except in accordance with the procedure which applied to all Quebec judges; and that he required to have been in practice at the Quebec bar for at least ten years and went through a selection procedure analogous to that for provincially appointed judges. At p 172 Vertes J alluded to a risk that a temporary judge might be influenced by considerations relating to his practice of the law. Counsel submitted that a temporary sheriff might decide a case in a way which favoured the prospects of his clients in other cases, or take the view that it was difficult to explain to his clients why he had acted in a certain way. It was unrealistic to ignore these dangers. The examples which had been given in the two Canadian cases should not be regarded as exhaustive.
In reply the Solicitor General submitted that it was clear from the European and Canadian cases that a fixed-term appointment was not objectionable provided that there were sufficient guarantees of the independence and impartiality of the judge who held such an appointment. He founded on the decision of the European Commission in Dupuis, in which they held that an army officer who was appointed a member of a military court for only one month was independent. The commission observed that the requirement of independence did not necessarily imply that the person should be appointed for life or that he should have security of tenure in law. The military member could not be removed during the period of his mandate. He was not answerable to anyone as a judge. A further guarantee lay in the fact that the part which each member played in the decision was secret. In the present case it was important to note that the temporary sheriff took a judicial oath. There was no question of the Lord Advocate attempting to influence temporary sheriffs in what they did. The fact that their commission was in respect of every sheriffdom in Scotland had the effect of distancing the Lord Advocate from particular cases, and he had no part in deciding in what sheriff court they served. The limitation of their commission to one year at a time simply reflected the temporary nature of their appointment. At the same time the Solicitor General said that he could not state what was the purpose of limiting the period to one year, save that he assumed that it had been done in order to avoid a surplus of temporary sheriffs. He did not know how the Lord Advocate of the day had regarded the one year limit during the earlier years since the 1971 Act came into force. Perhaps it was seen as enabling the quality of the temporary sheriff's work to be assessed.
Turning to the more general points which counsel had founded on, the Solicitor General submitted that, as in the case of the one year term, there were sufficient guarantees against outside pressures. He emphasised that the fact that each country had its own constitutional traditions should be recognised. The temporary sheriff had security of tenure as a matter of fact. He referred to Campbell and Fell v United Kingdom, in which the court observed at para 80 that the absence of a formal recognition of the irremovability in law of the member of the board of visitors did not in itself imply lack of independence provided that it was recognised in fact and that the other necessary guarantees were present. (I note, however, that in that case force was taken out of the lack of formal recognition because the term of office had to be kept short in order to attract persons to become board members). The Solicitor General also relied on Engel v The Netherlands (but again, it can be seen that the military members of the military court in that case had nothing to gain or to lose from the military authorities as a result of their work on the court). The practice followed by successive holders of the office of Lord Advocate showed that there had been a movement towards greater openness and formality. It did not matter whether a temporary sheriff sat on cases as a favour or whether he did or did not have anything to hope or fear. It was clear that it had always been intended that the ranks of permanent sheriffs would be filled from those who had held office as temporary sheriffs. (In their report the Grant Committee described a similar use of the interim sheriff-substitute (para 376).) If this was seen as an advantage, how could it be provided for without a perception of dependence? The question was whether the impartial observer would think that there was a risk of a temporary sheriff tailoring his conduct and decisions in order to further his own ends. It was not possible to achieve the ideal. There was a reasonably held perception of impartiality. If a temporary sheriff wanted to seek promotion this did not necessarily point to a lack of impartiality. Rather it tended to result in his performing well in a judicial sense.
The safeguards comprised the fact the temporary sheriff took a judicial oath; that he undertook the training, to which I have referred earlier in this opinion; and that his independence and impartiality were respected by the practice followed by the Lord Advocate. There were good reasons why the Lord Advocate had played a leading role in the selection process. He was seen as ‘less political’ than other ministers, and he had close links with the legal profession. As the head of the prosecution service he enjoyed independence. He had long been regarded by convention as having a central role in the appointment of judges. In practice he had not re-appointed where there had been a failure on the part of a temporary sheriff to perform the minimum amount of work; where the temporary sheriff had reached 65 years of age; or where he had been guilty of some misconduct. The temporary sheriff was told of the reason why he was not to be re-appointed. The court should have regard to this practice, even if it was not set out formally. He referred to Campbell and Fell at para 80; and a decision of the European Commission in Eccles, McPhillips and McShane v Ireland. In that case, which was concerned with membership of a special criminal court established under statutory powers, the commission observed that in assessing removability, ‘regard must be had not only to the legal provisions concerning the composition of the court but also how these provisions are interpreted and how they actually operate in practice’. In that case the commission noted that the court had a constitutional guarantee of independence; that it was subject to the supervisory jurisdiction of the High Court; that it was composed of persons with a judicial background; and that its judgment could be appealed to the ordinary courts of appeal. In addition the court regulated its own procedure and generally applied the same rules of evidence as the ordinary criminal courts. There was no evidence of executive interference with the court in the performance of its functions. In the present case, the Solicitor General submitted, it would be unthinkable for the Lord Advocate to seek to influence any judge. The convention as to the independence of temporary sheriffs was reinforced by the integrity of those who are involved. The procurator fiscal, like the Lord Advocate, had no control over where the temporary sheriff sat. Although he was subject to instructions and guidelines from Crown Office, he had a wide range of discretion by reason of his office. He could not be removed from office save on a report under sec 1(3) of the 1927 Act. Permanent sheriffs and temporary sheriffs were expected to act in the same way, and they had the same judicial qualities and standing. They were bound by the same rules of evidence and procedure, and were subject to the same oversight by the sheriff principal who had primacy in his sheriffdom (see secs 16–18 of the 1971 Act). They were regarded as the equals of permanent sheriffs. Their appointment had not previously been called into question since the 1971 Act came into force. The use of temporary sheriffs was inevitable. While ‘floating sheriffs’ could assist in the work of sheriff courts, they could not be used with the same flexibility as temporary sheriffs. As regards the matter of financial security, the Solicitor General submitted that while this was a matter to which the Canadian courts had attached importance, there was no trace of its being relied upon in any of the European cases. The European decisions represented the ‘first port of call’ in the application of art 6(1). He accepted at the same time that the European Court of Human Rights took account of the values which had been recognised in international agreements. In Scotland considerations of money might be secondary so far as many temporary sheriffs were concerned, but he recognised that some of them regarded the work as providing part of regular income, perhaps to an increasing extent.
As regards the conflict of interest to which counsel referred, the Solicitor General submitted that in Scotland there was no substantial difference from the safeguards which were adequate in Attorney General of Quebec v Lippé to preserve the objective appearance of impartiality of the municipal judges.
In this case the question whether a temporary sheriff, such as Temporary Sheriff Crowe, was an ‘independent and impartial tribunal’ for the purposes of art 6(1) is not confined to any particular case. It relates to the whole period within which he held his current appointment. There is no suggestion that if his appointment had been made subsequent to 20 May 1999, but on the same basis as before, the resulting decision would be different.
The factors relied on by counsel for both accused were derived from (i) the terms of sec 11 of the 1971 Act; (ii) the terms of the temporary sheriff's appointment; and (iii) the restrictions applied by the Lord Advocate in determining those who qualify for re-appointment. Counsel submitted that each of these factors could be considered either on its own or when taken along with the others. While a judgment could be formed by reference to all the factors taken together, it is important that it should be clear which matters are critical. If any action has to be taken as a result of this case it should be clear what requires to be given attention.
I begin then with sec 11. Subsection (4) confers a power of recall which, on the face of it, is without any qualification as to the circumstances in which it may be exercised, the test which is to be applied or the means by which the justification for its exercise may be investigated. It is doubtful how far its exercise is susceptible of judicial review. The terms of subsec (4) stand in stark contrast to those of sec 12(2) which provide, in the case of a permanent sheriff, a test by reference to which his fitness for office may be determined and a procedure by way of an investigation and a ministerial order which is subject to a negative resolution of either House of Parliament. The ministerial order is challengeable by judicial review (Stewart v Secretary of State for Scotland). In the present case the power of recall appears to be exercisable at pleasure.
It might be argued that the existence of this power of recall is not significant since, at least in recent years, it has not been exercised. I would regard such an argument as spurious. Quite apart from any other consideration, the fact that a temporary sheriff is appointed for only one year at a time has enabled the executive to maintain a close control over the period for which he holds office. This has made it unnecessary for the executive to take the formal step of recalling the appointment. The temporary sheriff is simply not re-appointed. Further, pending the expiry of the period of appointment, an immediate instruction can be given that he is not to be used. Unlike the permanent sheriff, he is a part-time sheriff and is not able to insist on a constant or regular supply of work. In the result, for a temporary sheriff not to be re-appointed has the same practical effect as recall.
It was suggested that a restricted scope could be given to the power to recall under sec 11(4) by an argument on the following lines, namely that sec 11(2) was intended to confer the power to appoint a temporary sheriff in order to meet a temporary need. This would give a narrow interpretation to the terms of para (c). This construction may gain some support from use of similar language in sec 16(1)(b), which relates to certain functions of the sheriff principal. If this construction of sec 11(2) is correct—as counsel maintained—it might be possible to regard the power to recall as referring only to the situation in which the Secretary of State was satisfied that the temporary need no longer existed. If so, the power of recall would not be at pleasure but would be governed by the exhaustion of the purpose for which the appointment was made. The question of construction of the scope of sec 11(2) is, perhaps unfortunately, not raised directly in this case. As the Solicitor General pointed out, it would call in question the vires of the appointment of temporary sheriffs, since it is abundantly plain that they have not been appointed in order to meet a temporary need, let alone in particular sheriffdoms, but in order to deal with part of the routine workload, and in Scotland as a whole, to an increasing extent. For reasons of policy, into which I have not had to enquire, they represent a permanent supplement to the shrieval bench. Moreover such a construction of sec 11(2), and hence the power of recall in sec 11(4), does not appear to consist with the way in which the power of recall has been treated in the terms on which temporary sheriffs have been appointed. The Solicitor General also observed that it had never before been suggested that there was any ground for thinking that the appointment of temporary sheriffs was ultra vires. He submitted that in any event a narrow interpretation should not be placed on para (c) of sec 11(2). There was, he said, no reason why an appointment could not be made for an indefinite period, so as to avoid delay wherever this might occur, and hence serve the fundamental requirements of the sheriff courts in Scotland. At a later stage of his submissions, while continuing to maintain his position as to the scope of sec 11(2), he suggested that the scope of sec 11(4) could properly be understood as restricted to certain categories of situation, namely the meeting of a temporary need, the failure to fulfil a quota, the reaching of an age limit or conduct which was regarded as rendering the temporary sheriff as unfit for office. I would observe that if para (c) of sec 11(2) had the wide meaning contended for by the Solicitor General there would hardly be a need for paras (a) and (b). No doubt this interpretation of the scope of sec 11(4) has the convenient effect of bringing the interpretation of that subsection into alignment with the practice which has been followed by the Lord Advocate. However, I can find nothing in the terms of sec 11 which would warrant that construction of the subsection. It would require express language to achieve the effect suggested.
In the circumstances I do not require to express a view as to whether appointment of temporary sheriffs is ultra vires of sec 11(2). I should add that even if sec 11(2) should be understood as having the narrow interpretation which I have outlined above, it does not follow that the power to recall would be similarly restricted. The terms of sec 11(4) are, in my view, wide enough to enable an appointment to be brought to an end prior to the exhaustion of any purpose for which it was made.
I turn to consider the terms of appointment of the temporary sheriff, and in particular the implication of the fact that the appointment was limited to one year at a time. I have to some extent anticipated my remarks on this in dealing with the significance of sec 11(4). That there should be any temporal limit seems to me to raise a question as to whether the temporary sheriff presents the appearance of independence. There is, incidentally, nothing in sec 11 to empower the Secretary of State to impose any term or condition. That in itself may raise a question of the vires of the one year term, if not of the appointment itself. However, that is not the point with which I am concerned, and I reserve my opinion on it.
It is clear that in other parts of the world time-limited appointments of judges have given cause for concern. In the present case it might have been a reassurance if the reasons for this period were at least consistent with concepts of independence and impartiality. However, as I have already noted, the Solicitor General was not able to give any reason why that period had been selected. He suggested that it might have been due to the possibility of a drop in the number of temporary sheriffs who were needed. That suggestion lacks plausibility in view of the manifest expansion in the use of temporary sheriffs as the demands on the system as a whole have increased over the years. Rather than a control over numbers, the use of the one year term suggests a reservation of control over the tenure of office by the individual, enabling it to be brought to an end within a comparatively short period. This reinforces the impression that the tenure of office by the individual temporary sheriff is at the discretion of the Lord Advocate. It does not, at least prima facie, square with the appearance of independence.
Then there are what I have referred to as the restrictions applied by the Lord Advocate in determining whether a temporary sheriff qualifies for re-appointment. I refer to the minimum period of work which the temporary sheriff is expected to perform and the age limit of 65 years. For present purposes it does not matter that these do not form part of the terms of his appointment. What matters is that they clearly form part of the basis on which the temporary sheriff's prospective tenure of office rests. Neither is sanctioned by statute. They are matters of ministerial policy. They may change as one Lord Advocate succeeds another. As the Solicitor General made clear, his description of the policy applied by the present Lord Advocate cannot be regarded as binding a successor. How such restrictions are applied is evidently a matter for his discretion, as the practice of the present Lord Advocate in regard to the age limit demonstrates. The tendency of these restrictions is significant. The first tends, if anything, to eliminate the temporary sheriff who would prefer to sit only occasionally, and to encourage the participation of those who are interested in promotion to the office of permanent sheriff, or at least in their re-appointment as a temporary sheriff. The second may also have a similar effect.
There was, in my view, some force in the submission made by counsel for the first accused that the limits imposed by sec 11(4) and the terms of appointment might tend to encourage the perception that temporary sheriffs who were interested in their advancement might be influenced in their decision making to avoid unpopularity with the Lord Advocate. These restrictions tend to support the same argument.
As against these factors it is, of course, necessary to pay full regard to what were presented by the Solicitor General as the guarantees of independence and impartiality of the temporary sheriff. The fact that the judicial oath is taken by the temporary sheriff and that he undergoes the training to which he referred are matters of importance. So too is the high standard of professional behaviour which is expected of and shown by those who practise law in Scotland. The practice followed by the present Lord Advocate in the appointment of temporary sheriffs, his lack of any connection with the way in which temporary sheriffs are used and the criteria used by him in determining whether a temporary sheriff has ceased to be fit for office are also important considerations. There is no question whatever as to the integrity and fair mindedness with which the Lord Advocate has acted. However, what I have to consider is whether the basis on which the temporary sheriff holds office is truly independent, that is independent of the executive, whether it presents an appearance of such independence, and whether and to what extent the lack of the former gives rise to the appearance of lack of impartiality. I do not have difficulty with the fact that temporary sheriffs are appointed by the executive, following upon their selection by the Lord Advocate. Counsel did not contend to the contrary. However, appointment by the executive is consistent with independence only if it is supported by adequate guarantees that the appointed judge enjoys security of tenure. It is clear that temporary sheriffs are appointed in the expectation that they will hold office indefinitely, but the control which is exercised by means of the one year limit and the discretion exercised by the Lord Advocate detract from independence.
Part of the judgment in Valente v The Queen is of some interest in this connection. At p 180 Le Dain J referred to the fact that the provision for the reappointment of a judge after his retirement had been challenged on the ground that, unlike his original appointment, it was during the pleasure of the executive and that complete pension entitlement depended on such reappointment. He pointed out that the Ontario Court of Appeal had relied on the fact that during his seven years in office the Attorney General had always acted with respect to such reappointments on the recommendation of the Chief Judge of the provincial court in question. That practice was referred to as ‘tradition’. At p 182 he accepted that tradition, reinforced by public opinion, operating as an effective restraint upon the executive or legislative action, was undoubtedly a very important objective condition tending to ensure the independence in fact of a tribunal. At p 183, however, he went on to say: ‘It is a question of the relative importance that one is going to attach to tradition in a particular context as ensuring respect for judicial independence despite an apparent or potential power to interfere with it. Moreover, while tradition reinforced by public opinion may operate as a restraint on the exercise of power in a manner that interferes with judicial independence, it cannot supply essential conditions of independence for which specific provision of law is necessary.
With the greatest respect for the contrary view, where, as in the case of Provincial Court judges at the time Judge Sharpe declined jurisdiction, the legislature has expressly provided for two kinds of tenure—one under which a judge may be removed from office only for cause and the other under which a judge of the same court holds office during pleasure—I am of the opinion that the second class of tenure cannot reasonably be perceived as meeting the essential requirement of security of tenure for purposes of section 11(d) of the Charter. The reasonable perception is that the legislature has deliberately, in the case of one category of judges, reserved to the executive the right to terminate the holding of office without the necessity of any particular justification and without any inhibition or restraint arising from perceived tradition. I am thus of the view that a judge of the Provincial Court (Criminal Division) who held office during pleasure could not be an independent tribunal within the meaning of section 11(d) of the Charter.’ This line of reasoning seems to me to be persuasive and to support the view that even when full allowance is made for the matters relied upon by the Solicitor General, the power of recall under sec 11(4) is incompatible with the independence and appearance of independence of the temporary sheriff. For the reasons which I have already indicated, I regard the one year limit to the appointment as being a further critical factor arriving at the same result. As regards the difference in the basis of payment as between a temporary and a permanent sheriff, I would not be disposed to regard this in itself as critical. Rather it illustrates the difference in status to which I have already referred. I also accept that in this case there is a link between perceptions of independence and perceptions of impartiality, of the kind which has been categorised in Canada as institutional impartiality. I consider that there is a real risk that a well-informed observer would think that a temporary sheriff might be influenced by his hopes and fears as to his prospective advancement. I have reached the view that a temporary sheriff, such as Temporary Sheriff Crowe, was not an ‘independent and impartial tribunal’ within the meaning of art 6(1) of the Convention.
That conclusion does not rely to any extent on the argument that, by reason of his remaining in practice, a temporary sheriff lacks the appearance of impartiality. I agree with the conclusion and reasoning expressed by Lord Reed in rejecting that argument.
As I have already stated, I hold that the terms of sec 11(4) of the 1971 Act are incompatible with art 6(1) of the Convention. Under sec 53 of the Scotland Act 1998 the general transfer of functions to the Scottish Ministers is confined to those functions which are exercisable within devolved competence, which, by definition, excludes any provision which is incompatible with any of the Convention rights (cf sec 29(2)(d)). Accordingly, as was pointed out by Lord Reed when this eventuality was being discussed, it follows that the function under sec 11(4) was not transferred to the Scottish Ministers and accordingly remains with the Secretary of State for Scotland.
Returning to the terms of sec 57, I require now to deal with an argument which was presented by the Solicitor General that subsec (2) did not apply in the present case by virtue of the saving set out in subsec (3): ‘Subsection (2) does not apply to an act of the Lord Advocate—(a) in prosecuting any offence, or (b) in his capacity as head of the system of criminal prosecution and investigation of deaths in Scotland, which, because of subsection (2) of section 6 of the Human Rights Act 1998, is not unlawful under subsection (1) of that section.’ Subsection (2) of sec 6 of the Human Rights Act 1998 disapplies in certain circumstances the rule set out in subsec (1) that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. According to the argument which was presented, the relevant part of subsec (2) was its provision that subsec (1) did not apply to an act if ‘as the result of one or more provisions of primary legislation, the authority could not have acted differently’.
The Solicitor-General submitted that in the middle of a trial the procurator fiscal had no alternative but to proceed. It would not have been in the public interest however to desert the diet simpliciter. I do not accept this argument. The provision of subsec (2) of sec 6 of the Human Rights Act which is relied upon, is plainly intended to refer to an act of the 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 subsec (3) of sec 57 of the Scotland Act.
In the whole circumstances, therefore, I am of opinion that in proceeding with the trial the Lord Advocate, as represented by the procurator fiscal, acted incompatibly with the right of the accused under art 6(1) to trial by ‘an independent and impartial tribunal’. I move your Lordships to pass the bills of advocation for the accused and to remit the case to the temporary sheriff with directions to discharge the trial of the complainers and fix a new trial diet to be heard by a permanent sheriff. I also move your Lordships to pass the procurator fiscal's bill of advocation and to sustain her plea in law accordingly.
The history of these cases is fully set out in the opinions delivered by your Lordship and Lord Reed, as are the relevant statutory provisions, the authorities to which we were referred and the submissions of the parties. I do not, therefore, go over that ground again. Moreover, there is no issue upon which I see myself as taking a significantly different view from either of your Lordships. I have indeed considered whether there is anything that I should add: the answer to the question of whether a person has had a hearing ‘by an independent and impartial tribunal established by law’ when the tribunal is a temporary sheriff holding office at the pleasure of the Lord Advocate, with no security of tenure, can in my opinion be answered in the negative without any deep or detailed consideration of the words ‘independent and impartial’. Nothing in the statutory provisions regarding temporary sheriffs, and nothing in the account which we were given of how they are selected and appointed, or how they are used, or how they cease to be used or to hold office, appears to me to point to any other answer. Equally, nothing in the authorities to which we were referred appears to me to point to any other answer. The opinions of your Lordships appear to me to demonstrate with great clarity why no other answer is appropriate. That is sufficient for the disposal of these cases, and while there was some suggestion that our opinions in these cases would afford guidance as to what changes if any might be made, I think that such guidance must be found in what is said in order to dispose of these cases, without our embarking on any wider attempt to define or indicate, in the abstract, what is required to produce a tribunal which is independent and impartial. There are, however, a number of points which I think it appropriate to discuss briefly, in supplement to what has been said by your Lordships, which may help to show why I am in full agreement with the conclusions which you have reached.
The requirements of art 6 of the European Convention on Human Rights apply equally to the determination of a person's civil rights and obligations on the one hand, and any criminal charge against him on the other hand. While the meaning of the words themselves will be the same in either context, the characteristics which a tribunal will have to have, in order to be held independent and impartial, may in my opinion vary considerably, according to the nature and function of a tribunal. I would wish to emphasise that the context with which we are concerned is the determination of criminal charges; and just as I think it difficult to apply to such a context the observations which have been made by courts when dealing with tribunals of quite different kinds, so also I would think it inappropriate to apply anything which we say, in this context, to other types of tribunal where independence and impartiality perhaps can and should be achieved in very different ways.
As regards the actual words ‘independent’, and ‘impartial’, the latter appears to me to be of the essence of the judicial process. I would regard the concept of a partial judge as a contradiction in terms. But I am inclined to see independence—the need for a judge not to be dependent on others—as an additional substantive requirement, rather than simply a means of achieving impartiality or a perception of impartiality. Independence will guarantee not only that the judge is disinterested in relation to the parties and the cause, but also that in fulfilling his judicial function, generally as well as in individual cases, he is and can be seen to be free of links with others (whether in the executive, or indeed the judiciary, or in outside life) which might, or might be thought to, affect his assessment of the matters entrusted to him. The requirement of independence seems to me to have an importance which runs even wider than that of impartiality. The two concepts appear to me to be inextricably interlinked, and I do not myself find it useful to try to separate the one from the other.
There is little that I would wish to add to what is said by your Lordships in relation to sec 11 of the Sheriff Courts (Scotland) Act 1971. Neither the history of non-permanent appointments, nor the more immediate background to the passing of these provisions, seems to me to suggest that Parliament intended to give the Secretary of State a wide discretion to appoint temporary sheriffs in the absence of a specifically identified immediate need in a particular sheriffdom. But I find it difficult to regard the provision as requiring construction, and am inclined to see the actual words used as conferring a much wider power than was necessary to meet what appear to have been the prior intentions. As regards subsec (4), I see no scope for varying interpretations. A general requirement of reasonableness is perhaps implicit, with a consequential possibility of judicial review. But I am quite unable to regard either long tradition or recent practice as altering the Secretary of State's freedom of action in terms of this section. The very substantial narrative of procedures and practices which are in fact followed, but are not required by law, seemed to me to provide the perfect illustration of a temporary sheriff's total dependence upon the executive for his continuance in office.
Most of what was said about the appointment of temporary sheriffs related to what I would call their initial appointment. While we were told that re-appointment was virtually automatic, the word ‘virtually’ is to be noted: reappointment is not in any real sense automatic but involves exercise of discretion. Given the practice of appointment for one year (itself to my mind of doubtful validity) it seems to me that at any point in time, a temporary sheriff's appointment must be regarded as dating from only the previous January. In relation to the crucial question of tenure, I see no force in the suggestion that these can be regarded as longer term appointments.
Quite apart from the shortness of the period of appointment, and the fact that, in any event, it can be recalled at any time, the dependence of a temporary sheriff on the executive is, in my opinion, all the more apparent when one considers other features of these appointments. The appointments are described as ‘part-time’. But they are not part-time in the ordinary sense, according to which an employee works, say, 20 hours per week. The temporary sheriff is not only liable to be ‘suspended’, no longer being used at all during the currency of his appointment. The extent to which he is used, and thus the extent to which he is remunerated, appear to be entirely at the discretion of the executive. In such circumstances, while at one level he can be said to have been appointed to the office and to retain it, at another and more practical level he can be regarded as effectively ‘appointed’ each time that he is in fact used. For the purposes of the present cases, it is not necessary or appropriate to embark upon an assessment of the merits or demerits of such a system. But it appeared that those who were most available were likely to be most used, and that appointment to the permanent office of sheriff could depend substantially upon whether and how an individual had served as a temporary sheriff. While these were put forward as reasonable and indeed advantageous aspects of the system, they provide another vivid illustration of a temporary sheriff's dependence on the executive.
Given that a permanent appointment to the shrieval bench is dependent on long years of experience in legal practice, it is by no means clear to me that one should be required to have a trial period, on the bench, prior to such appointment. But the fact that temporary sheriffs will apparently often be hoping for a permanent appointment, and that they hold office during this period with no assurance that they will be used or reappointed, far less given a permanent position, constitutes, to my mind, a quite extreme form of dependence. One must not be Utopian, and a hope of promotion, for example, is no doubt present in the minds of many judges in many systems. I would stop short of saying that this is a general basis for alleging ‘dependence’ on those who can promote. But the possibility of obtaining a better post makes it more, not less, important that there should be security of tenure at any particular level.
If a person is appointed to judicial office ad hoc, for a particular purpose, the length of his tenure may be of no significance: he will go, and go only, when he is functus. Equally, length of tenure may be of little importance when the office is not a step in a career, but is something done out of a sense of duty, or at the end of a career. But in the case of temporary sheriffs, where the appointment is frequently a ‘career move’, the combination of a one-year appointment with liability to either recall or suspension or limited use is, in my opinion, wholly inconsistent with the requirement of independence.
However long and secure the tenure of a judicial office may normally be, irremovability cannot be absolute. In the classic terminology, the appointment will be ad vitam aut culpam. (If not for life, appointment should be for a period which can be identified without discretionary intervention.) It is not necessary here to consider what types of conduct might, in any given system, be regarded as ‘culpa’ for this purpose. But if a judge's independence is to be preserved, notwithstanding the fact that he can thus be removed, two things seem to me to be important. First, the question of what will be regarded as ‘culpa’ cannot be left to the discretion of any person upon whom the judge should not in principle be dependent. And secondly, even if the scope of culpa is known and determined, the question of whether culpa on the part of the judge has been established cannot be left to the discretion of such a person. Even if, in practice, temporary sheriffs were only removed by procedures identical with those which govern the removal of permanent sheriffs, the temporary sheriff could not, in my opinion, be regarded as independent in the requisite sense: as in other respects, a practice is no substitute for a right.
I would add one final point. Like your Lordships, I am not suggesting in any way that there has ever been any impropriety, either on the part of temporary sheriffs or on the part of any holder of any ministerial office, or of their officials. But I would add that if a judge is not independent, then however great his integrity, it may be very difficult for him to know whether his want of independence affects the way in which he carries out his judicial duties. And however determined a Minister or public servant may be to carry out his functions in relation to the judiciary only on the basis of wholly appropriate considerations, it will be important for him to remember that his own confidence in his own integrity is not, and cannot be regarded as, a guarantee.
Article 6(1) of the European Convention on Human Rights provides, inter alia: ‘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.’ The principal issue raised in these appeals is whether that right is violated by the trial of an accused person before a temporary sheriff. The submission made on behalf of the appellants is that such a sheriff does not constitute ‘an independent and impartial tribunal’ within the meaning of art 6. Although the objection taken on behalf of the appellants concerns a particular temporary sheriff, it was common ground at the hearing of the appeals that nothing turns on any specific circumstances relating to that particular temporary sheriff.
The issue arises in consequence of the enactment of the Scotland Act 1998. Section 57(2) of that Act provides: ‘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 or with Community law.’ The Lord Advocate is a member of the Scottish Executive: sec 44(1)(c). It is conceded by the Solicitor General for Scotland, who represented the Lord Advocate in the proceedings before us, that the prosecution of a trial by a procurator fiscal or one of his or her deputes involves a number of steps which amount to ‘acts’ within the meaning of sec 57(2), and that those acts are to be treated as the acts of the Scottish Executive for the purposes of that provision. The ‘Convention rights’ to which sec 57(2) refers include the rights guaranteed by art 6 of the European Convention on Human Rights: sec 126(1) of the Scotland Act, read with sec 1(1)(a) of the Human Rights Act 1998. Accordingly, subject to sec 57(3) of the Scotland Act (which excludes the application of sec 57(2) in certain specific circumstances), it is ultra vires for a procurator fiscal to prosecute a trial before a temporary sheriff if such a sheriff is not an independent and impartial tribunal within the meaning of art 6.
Temporary sheriffs are a statutory creation. The relevant provisions are contained in sec 11 of the Sheriff Courts (Scotland) Act 1971. Section 11(1) (which has subsequently been substituted by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980) deals with the appointment of temporary sheriffs principal. Section 11(2) is in the following terms: ‘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.’
The Solicitor General explained to us that all appointments are made under sec 11(2)(c). The words ‘for any other reason’, in subsec (2)(c), are not construed eiusdem generis with illness, inability or a vacancy in subsec (2)(a) and (b). They are not, in other words, construed as referring to some temporary exigency (other than illness, inability or a vacancy) which the Secretary of State has identified in a particular sheriffdom. They are construed as conferring a wide discretion on the Secretary of State which can be used, as it has been used, to create a large pool of persons, each appointed to act as a sheriff for every sheriffdom in Scotland, and available to supplement the permanent sheriffs as and when the need arises, to the extent of performing (at present) 25 per cent of the total workload.
Section 11(3) stipulates the formal qualifications for appointment as a temporary sheriff, namely qualification as an advocate or solicitor for at least five years. This is a lesser requirement than for appointment on a permanent basis, for which the minimum period is 10 years: sec 5(1).
Section 11(4) provides ‘The appointment of a temporary sheriff principal or of a temporary sheriff shall subsist until recalled by the Secretary of State.’ The Solicitor General accepted that the effect of this provision is that a temporary sheriff holds office at pleasure. He submitted that the power to recall an appointment could not be regarded as implicitly limited, by sec 11(2), to circumstances in which the reason which had made the appointment expedient, in order to avoid delay in the administration of justice, had ceased to obtain. I shall return to this point at a later stage in this opinion. Section 11(4) can be contrasted with the provisions of sec 12, which provide security of tenure to permanent sheriffs. Under sec 12, a permanent sheriff can be removed from office only by an order which is subject to annulment in pursuance of a resolution of either House of Parliament. Such an order can only be made on a report by the Lord President and the Lord Justice-Clerk to the effect that the sheriff is unfit for office by reason of inability, neglect of duty or misbehaviour. Such a report can only be made following an investigation by the Lord President and the Lord Justice-Clerk. These provisions, the history and effect of which are discussed in Stewart v Secretary of State for Scotland, strengthened the protection previously given to sheriffs, in accordance with recommendations contained in the Report of the Grant Committee on the Sheriff Court (Cmnd 3248, 1967). Temporary sheriffs are expressly excluded from the scope of these provisions: sec 12(7).
Section 11(4A) (as inserted by the Judicial Pensions and Retirement Act 1993, sched 6, para 11) provides: ‘No appointment under this section of a person to be a temporary sheriff principal or temporary sheriff shall extend beyond the day on which the person reaches the age of 70.’ That prohibition is made subject, by sec 11(4B), to a power to authorise continuance in office up to the age of 75. As the Solicitor General explained, the present Lord Advocate has introduced an administrative policy of not renewing commissions once the temporary sheriff has reached the age of 65.
Section 11(5) provides: ‘If the Secretary of State, on appointing any person to be a temporary sheriff principal or a temporary sheriff, so directs, the provisions of sec 6(1) of this Act shall apply in relation to that person as they apply in relation to a person holding the office of sheriff.’ Section 6(1) prohibits a permanent sheriff principal or sheriff from engaging in any private practice or business. From what we were told, it appears that those provisions are never applied to temporary sheriffs, because such sheriffs are only used on a part-time basis.
Section 11(6) provides: ‘A person appointed to be a temporary sheriff principal of, or 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 principal or, as the case may be, sheriff in that sheriffdom.’ In the light of that provision, the only purpose of the ‘commission’ issued to temporary sheriffs would appear to be to constitute a formal instrument of appointment.
In support of his interpretation of this legislation, the Solicitor General explained to us the antecedents of sec 11 in earlier legislation and in the Report of the Grant Committee, and also referred us to certain Parliamentary materials. Prior to the 1971 Act there was no such office as that of ‘temporary sheriff’. Legislation had, however, provided for the appointment of ‘interim sheriffs’ since 1907 (the office now known as that of ‘sheriff’ was then known as that of ‘sheriff-substitute’, but I shall use the modern nomenclature for the sake of clarity). Section 16 of the Sheriff Courts (Scotland) Act 1907 empowered the Secretary of State for Scotland to appoint a person to act as interim sheriff in the event of a salaried sheriff ‘by reason of ill-health, being temporarily unable to discharge the duties of his office’. The appointment could be made only on application being made to the Secretary of State for Scotland by or on behalf of the salaried sheriff. The person appointed had to be qualified to fill the salaried office. There was no power to recall the appointment, but it was an appointment ‘to act ad interim in the place and during the absence of’ the salaried sheriff. Section 14 of the Sheriff Court and Legal Officers (Scotland) Act 1927 provided that an appointment under sec 16 of the 1907 Act was to have effect, in the event of a vacancy occurring in the office of the salaried sheriff, as an appointment to act as sheriff until the vacancy was filled. Section 4(2) of the Administration of Justice (Scotland) Act 1948 empowered the Secretary of State to appoint an interim sheriff in the event of a vacancy arising in the office of salaried sheriff. The person appointed had to be qualified to fill the salaried office. There was no power to recall the appointment, which was ‘to act ad interim…until the vacancy shall be filled’. The appointment accordingly came to an end automatically when the vacancy was filled. The power to appoint interim sheriffs was considered by the Grant Committee, who recommended no change in arrangements (para 412).
As part of the background to the 1971 Act it is also relevant to have regard to sec 17 of the 1907 Act, which remains in force. Section 17, read short, empowers a sheriff principal to appoint such persons as he thinks proper to hold the office of honorary sheriff within his sheriffdom during his pleasure. It appears from the Report of the Grant Committee (para 404) that on occasion someone with legal qualifications (usually an advocate) was appointed under sec 17 on a paid basis to preside over courts for a short period during the absence of the salaried sheriff, or to assist him during a period of pressure. These short-term emergencies were met by the appointment of what were somewhat illogically known as ‘paid honorary’ sheriffs. The formal authority to act was granted by the sheriff principal under sec 17 of the 1907 Act, but the person was in practice engaged by the Lord Advocate. The Grant Committee considered that the appointment of honorary sheriffs, paid and unpaid, would have to continue: ‘…emergencies will undoubtedly occur where a sheriff-substitute [ie what would now be called a sheriff] suddenly falls ill or where there is sudden temporary pressure of work, which can be met only by temporary reinforcement of the Bench by a qualified person…As a matter of detail, it might be desirable that the Secretary of State, as well as the sheriff, should be able in an emergency to authorise a "paid honorary" sheriff-substitute to act; an advocate engaged at very short notice to sit at a particular court might have difficulty in obtaining from the sheriff principal, perhaps resident elsewhere in the sheriffdom, the necessary commission as an honorary sheriff. Apart from this we think the sheriff principal should retain his power to appoint honorary sheriffs-substitute’ (para 405).
The Solicitor General founded particularly on what was said by the Grant Committee at para 406 of their report: ‘It was put to us that there might be a pool of advocates, perhaps maintained by the Lord Advocate, who would be available to sit as paid honorary or interim sheriffs-substitute throughout Scotland. The idea was that the pool should be a large one, including most advocates, so that the willingness of a particular individual to act as a paid honorary sheriff-substitute should not be construed as a desire for a permanent appointment as a full-time sheriff-substitute, with possible adverse effects on his private legal practice. We understand that there are a number of advocates who are available for appointment, and that the Lord Advocate would approach one of these when it is necessary to appoint paid honorary sheriffs-substitute, and we doubt whether more formal arrangements are necessary.’
It appears to me however that the suggestion canvassed in that passage—which was not endorsed by the Committee—bears little resemblance to the current system of appointment of temporary sheriffs. The temporary sheriffs form a pool of persons who have been actually appointed to shrieval office, rather than a pool from which appointments might be made when occasion arose. Far from the pool existing so as to avoid willingness to act being construed as a desire for a permanent appointment, membership of the pool of temporary sheriffs has increasingly come to be coveted as a step on the road towards a permanent appointment, and on the Lord Advocate's side it has equally come to be seen to some extent as, in effect, a probationary period during which potential candidates for a permanent appointment can be assessed.
The Solicitor General submitted, correctly in my opinion, that the provisions for the appointment of interim sheriffs in sec 16 of the 1907 Act and sec 4(2) of the 1948 Act could be regarded as the antecedents of the powers to appoint a temporary sheriff in the event of the incapacity of the permanent sheriff, or in the event of a vacancy in that office, under sec 11(2)(a) and (b) respectively of the 1971 Act. Although the suggestion was not made by the Solicitor General, it seems to me that the power conferred on the Secretary of State by sec 11(2)(c) can also be related to the previous practice of appointing paid honorary sheriffs under sec 17 of the 1907 Act (a practice which has fallen out of use), and to the Grant Committee's recommendation that the Secretary of State should have the power to make such appointments. It is, however, questionable whether that background supports the Solicitor General's wide interpretation of sec 11(2)(c), given that both the practice in respect of paid honorary sheriffs, and the Grant Committee's recommendation, concerned a power of appointment exercised ‘in an emergency’.
The Solicitor General also referred us to the Parliamentary proceedings during the passage of the Bill which became the 1971 Act, and in particular to the explanatory statement made by the responsible Minister, Baroness Tweedsmuir of Belhelvie, when introducing the second reading debate in the House of Lords. Specifically, the Solicitor General drew our attention to a passage in her speech which implicitly referred to the provision which became sec 11: ‘The Bill also provides that the Secretary of State may deal with the emergencies by the appointment of temporary sheriffs principal and sheriffs either to fill vacancies until a permanent appointment can be made or, in the case of sheriffs, to add to the shrieval strength to clear a backlog of cases. The existing powers in this respect are scattered through several Acts dated from 1907 to 1948 and are out of keeping with modern conditions’ (HL Deb, 22 June 1971, col 835).
This passage does not, to my mind, give much support to the wide construction of sec 11(2)(c) for which the Solicitor General contended, but tends rather to suggest that what the Minister had in mind was the making of truly temporary appointments to deal with emergencies. I note that the Minister also stated (at col 834): ‘There are two very important principles that underlie this Bill. The first concerns the constitutional importance of this measure because of the interdependence of Parliament and the judiciary…The second principle is that the executive must not encroach upon the independence of the judiciary. A judiciary that is independent of the executive is one of the most important distinguishing features of our system of justice in this country.’
One further passage to which we were referred occurred in a contribution to the debate by Lord Wheatley, when he suggested (at cols 883–884) that a pool of ‘floating’ sheriffs be created, holding the full status of a sheriff but not allocated permanently to any particular court, and thus able to act temporarily as sheriffs whenever a need should arise. That suggestion was acted upon following the enactment of the 1971 Act, and what are colloquially known as ‘floating sheriffs’ have become familiar in our practice. Such sheriffs receive a commission appointing them as sheriffs of a particular sheriffdom, and at the same time a direction from the Secretary of State (under secs 9 and 10 of the 1971 Act) requiring them to sit in every other sheriffdom.
Finally, as an aid to the interpretation of sec 11 the Solicitor General referred us to the principle to be found in R v Secretary of State for the Home Department, ex parte Brind, which was stated by Lord President Hope in T, Petitioner, at p 734 in the following terms: ‘…that, when legislation is found to be ambiguous in the sense that it is capable of a meaning which either conforms to or conflicts with the Convention, Parliament is to be presumed to have legislated in conformity with the Convention, not in conflict with it.’
I turn next to the interpretation of the critical provisions of sec 11 in the light of these materials. As I noted earlier, the Solicitor General submitted that sec 11(2)(c) conferred a wide discretion upon the Secretary of State which could properly be used to create a large pool of persons, each appointed to act as a sheriff for every sheriffdom in Scotland, available to supplement the permanent sheriffs as and when the need arose, and holding office on the basis of an appointment which was renewable annually. In relation to sec 11(4), the Solicitor General accepted that this impliedly conferred upon the Secretary of State a power to recall the appointment at will. It was not suggested that the exercise of the power could be subjected to any close scrutiny by way of judicial review. It was maintained that there was no duty to give reasons for the exercise of the power, although as a matter of practice reasons had in fact been given during the term of office of the present Lord Advocate. Counsel for the complainers did not dispute this construction of the legislation. It was common ground that sec 11(4) in particular provided no security of tenure whatsoever for temporary sheriffs. The issue in dispute, so far as security of tenure was concerned, was whether the degree of protection which in practice existed, as a consequence of the involvement of the Lord Advocate and his independence from the political process, was sufficient to satisfy the requirements of art 6 of the Convention.
I have to confess that I have some misgivings, as I indicated at the hearing of these appeals, as to whether the interpretation placed upon sec 11 by the parties is in fact correct. It appears to me to be questionable in particular whether Parliament can have intended sec 11(2)(c) to authorise the appointment of so-called temporary sheriffs who in reality hold office on annual commissions whose renewal is ‘virtually automatic’, and who are appointed not in order to deal with any particular problem of a temporary nature which has been identified in any particular sheriffdom, but so as to be available to supplement the work of the permanent sheriffs to the extent of performing one quarter of the entire work of the sheriff court. The appointment of such sheriffs would appear to me to be a constitutional innovation which was not foreshadowed either in the report of the Grant Committee or in the Parliamentary proceedings to which we were referred. Those materials, and the antecedents of temporary sheriffs in the law and practice relating to interim sheriffs and paid honorary sheriffs, would seem to me to give some support to a narrower construction of sec 11(2)(c), eiusdem generis with subsecs 2(a) and (b). I also find it not altogether obvious how the wider construction of sec 11(2)(c) can be reconciled with some of the other provisions of that section. The system in operation has apparently rendered subsec (2)(a) and (b) unnecessary, since the problems mentioned in those provisions are in practice dealt with by appointments made under subsec (2)(c). Subsection (5) is never applied, because all appointments made under subsec (2)(c) are part-time. Subsection (6) does not operate in the way one might have expected, since persons appointed under subsec (2)(c) are not expected to exercise any jurisdiction or powers unless and until, and for so long as, the booking clerk allocates them to a particular court. It also seems to me that a restrictive interpretation of sec 11(2)(c) might be supported both by the principle that statutes interfering with the independence of the judiciary should be strictly construed (Mackay and Esslemont v Lord Advocate at p 868) and by the principle of interpretation stated by Lord President Hope in T, Petitioner; particularly where the construction given to sec 11(2)(c) is liable to influence the extent of the power to recall appointments to which sec 11(4) refers. It would not, however, be appropriate for me to discuss these matters in greater detail, far less to express a concluded view upon them, in the absence of submissions on these points by counsel. I mention them only because of the bearing which the interpretation of sec 11(2) might have upon the interpretation of sec 11(4), a provision which appears to me to be of critical importance in these appeals.
As I have mentioned, the Solicitor General's position was that sec 11(4) implicitly conferred an unlimited power to recall, with the consequence that temporary sheriffs held office at pleasure, protected only by the integrity and good sense of the Lord Advocate. There was no duty to give reasons for the recall of an appointment. It was not suggested that there was scope for any close scrutiny of decisions to recall an appointment by was of judicial review. This was also the position of the complainers.
I again harbour some doubts as to whether the position is quite so straightforward. If sec 11(2) were to be interpreted as conferring a power of appointment which was limited to situations in which a temporary exigency had been identified, then it seems to me that that context might conceivably influence the interpretation given to sec 11(4). I do not, however, propose to pursue that possibility. The Solicitor General made it clear that that was not his position, recognising the dilemma in which he was placed. If the interpretation which had been placed upon sec 11(2) were incorrect, with the consequence that the existing appointments were based upon an erroneous interpretation of sec 11(2), or upon the use of the power conferred by sec 11(2) for an improper purpose, then that would scarcely strengthen his position. Article 6 requires not only an ‘independent and impartial’ tribunal, but also one which is ‘established by law’ (cf Zand v Austria). Any problem as to the vires of an appointment would also have implications under Scots law, quite apart from the Convention.
Even if one were to construe sec 11(2) as widely as the Solicitor General invited us to do, however, I entertain some doubts as to whether sec 11(4) is quite as resistant to judicial review as was implicit in the Solicitor General's position. I would not, without hearing argument on the point, wish to be taken as assenting to the proposition that there could be no duty to give reasons for the recall of an appointment. Nor would I rule out the possibility of judicial review of a decision to recall an appointment on familiar Wednesbury principles. Nevertheless, the Solicitor General was, I think, correct in his implicit assumption that no close scrutiny of the merits of a decision would be possible. In particular, in the absence from sec 11(4) of any express or implied criteria for the recall of an appointment, it is impossible to envisage any close scrutiny of the grounds for maintaining that those criteria were met, such as took place in Stewart v Secretary of State for Scotland. Indeed, in the absence of any specified grounds for removal from office, it is difficult to envisage even any detailed scrutiny of what those grounds should be. I suspect that judicial review would in practice be likely to be concerned principally with the fairness of the procedure followed; and even such procedural requirements might be limited in consequence of the failure of sec 11(4) either to lay down any procedure (by contrast with the situation in Stewart) or to specify the grounds for recall (by contrast with the situation in, for example, Ridge v Baldwin: see per Lord Reid at p 66). Again, however, I do not propose to consider these issues in detail at this stage, given the position adopted by the Solicitor General, which was not challenged on behalf of the complainers.
It may appear to be unsatisfactory to deal with these appeals without attempting to arrive at an interpretation of sec 11 which the court is satisfied is correct. There is, however, little alternative, in the absence of argument: we were reminded by the Solicitor General, correctly, that the issue of the vires of the present system of appointments, or of any particular appointment, is not before the court. In any event, for reasons which I will explain, it does not appear to be necessary to arrive at a definitive interpretation of sec 11 in order to determine these appeals.
I turn next to consider whether the temporary sheriff is an ‘independent and impartial tribunal’ within the meaning of art 6 of the Convention. It should be noted at the outset that it is not sufficient for the purposes of art 6 that an independent and impartial tribunal is available at the level of an appellate court, where the subject matter of the proceedings is a criminal charge. The accused person is entitled to be tried at first instance by a court which fully meets the requirements of art 6: see De Cubber v Belgium at paras 31–32; and Findlay v United Kingdom at para 79.
In order to establish whether a body can be considered to be ‘independent’, regard must be had, inter alia, to the manner of appointment of its members and their term of office, to the existence of guarantees against outside pressures and to the question whether the body presents an appearance of independence: see, inter alia, Bryan v United Kingdom at para 37.
Considering first the manner of appointment of temporary sheriffs, the Solicitor General maintained that appointment by the executive was not objectionable, and founded upon Campbell and Fell v United Kingdom, para 79. The Solicitor General founded in particular on the observation in Campbell and Fell that judges can be appointed by or on the advice of a minister having responsibilities in the field of the administration of the courts, without losing their independence.
So far as the initial appointment (rather than the subsequent renewal of appointments) of temporary sheriffs is concerned, I agree that appointment by the executive is not inherently objectionable. Counsel for the complainers emphasised (in relation to the renewal or recall of appointments) that the Lord Advocate is also responsible for the prosecution of crime in the courts where temporary sheriffs sit. It was not, however, suggested that appointments had been influenced by any improper motive. I accept that issues of perception are also important. There may be a risk, in any situation where judges are appointed by the executive, that they may be perceived as having attained their position as a result of the executive's favour, and therefore as being obligated to the executive. Perceptions, in this context, are of course relevant only if they have some objective justification, rather than being the product of mere cynicism. The degree of risk will reflect the safeguards built into the system; and in that regard the involvement of an independent judiciary in the process of selection of most temporary sheriffs is a significant safeguard. In the present case, it was not suggested on behalf of the complainers that the system of initial appointment described by the Solicitor General was inconsistent with independence, or that there was in fact any lack of public confidence attributable to the way in which temporary sheriffs were initially appointed. I therefore conclude that the manner of appointment of temporary sheriffs does not point towards any lack of judicial independence.
Considering next the term of office of temporary sheriffs, the appointment is expressed so as to subsist for 12 months unless previously recalled. On behalf of the complainers, reference was made to çiraklar where the European Court of Human Rights indicated (at para 39) that a term of office which lasted only four years, and could be renewed, was a factor pointing towards a lack of independence. Reference was also made to the Campbell and Fell judgment, where the court considered a term of three years to be ‘relatively short’ but understandable in circumstances where the members of the tribunal in question (a prison board of visitors) were unpaid, and where it might be difficult to find individuals willing and suitable to undertake the task if the period were longer. The Solicitor General, on the other hand, referred us to the decision of the European Commission on Human Rights in Dupuis v Belgium, a decision on admissibility. In that case, the Commission rejected a complaint that the military members of a military court, who served on the court for only three months, lacked independence. The Commission observed: ‘The requirement for a judge to be independent does not necessarily imply that he should be appointed for life or that he should have security of tenure in law (in other words, that he cannot be given other duties without his consent).’ That observation has to be understood in its context. The case concerned career officers who were removed from their normal duties for a short time to serve on the military court before returning to their normal duties. They were in some respects more akin to jurors than to sheriffs. In those circumstances, the shortness of the period of service could not possibly be regarded as compromising their independence. I do not find that decision of any assistance.
A short term of office is not, in my opinion, necessarily objectionable, as the Dupuis decision indicates. Indeed, the Convention itself provides for the appointment of ad hoc judges to sit on the European Court of Human Rights, appointed for the purpose of a particular case: art 27 (as amended by the Eleventh Protocol). Temporary appointments are, however, apt to create particular problems from the point of view of independence, particularly where the duration of the appointment is not fixed so as to expire upon the completion of a particular task or upon the cessation of a particular state of affairs (such as some emergency or exigency), but is a fixed period of time of relatively short duration. In particular, such a term of office is liable to compromise the judge's independence where the appointment can be renewed, as the European Court of Human Rights recognised in the çiraklar judgment. The possibility of renewal was also emphasised by the Commission in its opinion in the same case (at para 46). The same point has also been emphasised in other cases (eg the Incal judgment). As is stated in the European Charter on the statute for judges, adopted in Strasbourg in July 1998 under the auspices of the Council of Europe (DAJ/DOC (98) 23) (at para 3.3): ‘Clearly, the existence of probationary periods or renewal requirements presents difficulties if not dangers from the angle of the independence and impartiality of the judge in question, who is hoping to be established in post or to have his or her contract renewed.’
Other international instruments demonstrate an equal awareness of these dangers. For example, the Universal Declaration on the Independence of Justice, adopted in Montreal in June 1983 by the World Conference on the Independence of Justice (UN DOC.E/CN.4/Subs.2/1985/18/Add.6 Annex IV), provides (at para 2.20): ‘The appointment of temporary judges and the appointment of judges for probationary periods is inconsistent with judicial independence. Where such appointments exist, they should be phased out gradually.’ The European Charter and the Universal Declaration are not legally binding instruments, but they indicate the way in which international opinion has developed, and the existence of a consensus as to the dangers posed to judicial independence by short renewable periods of appointment. Although I have referred to these materials solely as background, the European Court of Human Rights has regard to international standards in the interpretation of the Convention, on the basis of the principle expressed in Dudgeon (at para 60): see, for example, the Soering judgment at para 108. I also note that the United Kingdom practice of appointing temporary judges appears to be unusual within a European context (see S Shetreet and J Deschenes, Judicial Independence: The Contemporary Debate at pp 35 (re Austria), 60 (re Finland), 64 (re France), 201 (re Italy), 236 (re Malta), 246 (re the Netherlands), 283 (re Portugal), 319 (re Spain) and 340 (re Sweden): it appears that in almost all the other systems surveyed the appointment of a temporary judge by the executive for a period of one year, renewable at the discretion of the executive, would be regarded as unconstitutional).
So far as temporary sheriffs are concerned, the period of one year is in itself much shorter than the periods considered in the Campbell and Fell, çiraklar and Incal judgments. What to my mind is of critical importance, however, is that renewal is both possible and expected, but is at the discretion of the executive. In effect, temporary sheriffs have their judicial careers broken up into segments of one year, so as to provide the executive with the possibility of reconsidering their appointment on an annual basis. This has obvious implications for security of tenure: although I will discuss that issue separately, it is inextricably linked to the present issue. It also appears to me to be important that temporary sheriffs may well be potential candidates for a permanent appointment in the event of a vacancy occurring, as is recognised in the notes issued to candidates for appointment as temporary sheriffs. The danger to judicial independence in such circumstances is subtle, but has been well described by Kirby J of the High Court of Australia, speaking extra-judicially, in a paper which was drawn to our attention: ‘But what of the lawyer who would welcome a permanent appointment? What of the problem of such a lawyer faced with a decision which might be very upsetting to government, unpopular with the media or disturbing to some powerful body with influence? Anecdotal stories soon spread about the "form" of acting judges which may harm their chances of permanent appointment in a way that is unjust. Such psychological pressures, however subtle, should not be imposed on decision-makers.’ (‘Independence of the Judiciary—Basic Principles, New Challenges’, delivered to a Human Rights Institute Conference organised by the International Bar Association on 12 June 1998). The then Chief Justice of Australia, Sir Gerard Brennan, has also drawn attention to the threat to judicial independence posed by the appointment of acting judges, observing that ‘judicial independence is at risk when future appointment or security of tenure is within the gift of the executive’ (‘The State of the Judicature’ (1998) 72 ALJ 33 at p 34).
Given that temporary sheriffs are very often persons who are hoping for graduation to a permanent appointment, and at the least for the renewal of their temporary appointment, the system of short renewable appointments creates a situation in which the temporary sheriff is liable to have hopes and fears in respect of his treatment by the executive when his appointment comes up for renewal: in short, a relationship of dependency. This is, in my opinion, a factor pointing strongly away from ‘independence’ within the meaning of art 6.
The Solicitor General's response to these points was to emphasise that, in practice, renewal is virtually automatic provided the temporary sheriff has fulfilled his quota, remains under 65 years of age and continues to be regarded by the Lord Advocate as fit for the office. There is, he submitted, no possibility of the system being abused, given the central role of the Lord Advocate in these procedures. The Solicitor General emphasised the importance of practice to an assessment of independence under art 6, and founded upon a passage in the Campbell and Fell judgment (at para 80) and upon a passage in the Commission's decision in Eccles, McPhillips and McShane v Ireland, a decision on admissibility. Those passages are concerned with security of tenure, and I shall return to them later when I come to deal with that subject. For reasons which I shall then explain, the factors mentioned by the Solicitor General do not alter my opinion.
The next matter to be considered is the existence of guarantees against outside pressures. In this regard, counsel for the complainers founded upon a number of factors. They submitted in the first place that the power to recall the appointment of a temporary sheriff, or to decline to renew the appointment, is vested in the Scottish Executive, and in practice is exercised by the Lord Advocate. The temporary sheriff can even be deprived of his appointment in substance by being informally ‘sidelined’, without any formal recall or non-renewal, if he incurs the displeasure of officials. The consequence is to make the temporary sheriff entirely dependent upon the Scottish Executive, and in particular upon the Lord Advocate, for the continuation and renewal of his appointment. This, it was submitted, is particularly objectionable when the Scottish Executive, and in practice the Lord Advocate, is also responsible for making the permanent appointments which many temporary sheriffs are hoping to obtain. The objection becomes even more serious when it is appreciated that the Lord Advocate is also responsible for the criminal prosecutions which take place before temporary sheriffs. For the temporary sheriff to occupy a role subordinate to one of the parties to proceedings before him is, it was submitted, inconsistent with judicial independence. Reference was made in that regard to the Sramek judgment and to the Piersackjudgment.
Secondly, counsel for the complainers founded upon the absence of any security of tenure by temporary sheriffs. The power to recall an appointment, or to decline to renew it, or to deprive it of substance by failing or refusing to provide work, was not subject to any formal control, either as to the criteria to be applied or as to the procedures to be followed. Counsel emphasised the contrast, in this regard, between the insecure position of temporary sheriffs and the security afforded to permanent sheriffs.
Thirdly, counsel for the complainers founded upon the lack of financial security enjoyed by temporary sheriffs, and the consequent pressure upon them to hope for a permanent appointment.
In reply, the Solicitor General did not dispute that the power to recall an appointment, or to decline to renew it, is vested in the Scottish Executive and is in practice exercised by the Lord Advocate; but he maintained that there was no possibility of interference by the executive in a temporary sheriff's performance of his duties, given the Lord Advocate's independence from political pressures and his integrity. It was not disputed that the Scottish Executive, and in practice the Lord Advocate, is also responsible for making permanent appointments and that many temporary sheriffs are hoping for such an appointment. Nor was it disputed that the Lord Advocate is responsible for all criminal prosecutions in the public interest, although it was pointed out that procurators fiscal can exercise their own discretion, to the extent permitted by the Lord Advocate, as to the conduct of prosecutions in the sheriff court. It was submitted that the degree of separation between the procurator fiscal and the Lord Advocate was such that the Lord Advocate could not be regarded as one of the parties to proceedings before the temporary sheriff; nor was the temporary sheriff ‘subordinate’ to the Lord Advocate.
In relation to security of tenure, the Solicitor General accepted that a temporary sheriff enjoyed no security of tenure as a matter of law. He submitted, however, that in practice a temporary sheriff's appointment would not be recalled prior to its expiry. In the event that the temporary sheriff became unfit for office (for example by reason of misconduct or ill health, as in the recent examples which he had given to us), then his appointment would not be renewed upon its expiry, and in the meantime no further work would be allocated to him by officials in Scottish Courts Administration. More generally, a temporary sheriff's appointment would be renewed unless he was regarded as unfit, or was over the age of 65, or had failed to fulfil his 20 day quota. In practice, his security of tenure was protected as a result of the involvement of the Lord Advocate, who was distanced to some extent from the political process. The Solicitor General founded again in this context upon the Campbell and Fell judgment and the decision in Eccles.
In relation to financial security, the Solicitor General submitted that this was not a matter which was relevant to an assessment of independence within the meaning of art 6: it had not featured in the reasoning of the European Court of Human Rights.
In my opinion, the most important of the three factors relied upon by the complainers is the absence of security of tenure. It was common ground before us that, as a matter of law, a temporary sheriff can be removed from office at any time for any reason. It was also common ground that a temporary sheriff can be appointed on an annual basis and that his allocation to courts, and the renewal of his appointment, are thereafter within the unfettered discretion of the executive. I have indicated earlier that I am not convinced of the correctness of those propositions. Insofar as my doubts rest upon the possibility of a more restricted interpretation of sec 11(2) of the 1971 Act than that which forms the basis of the present system of appointments, that possibility appears to me to be of no practical significance in this case: if that were correct, and the present system were based upon an erroneous interpretation of sec 11(2) and the misuse of the power conferred by that provision, then that would simply provide an alternative basis for finding a violation of art 6 (namely, that the court was not ‘established by law’). Insofar as my doubts rest upon the possibility of implying into sec 11(4) (assuming that the wider interpretation of sec 11(2) is correct) the necessity for a fair procedure (including, perhaps, a duty to give reasons) and certain standards of rational decision-making, what could then be implied would nevertheless provide relatively slight protection against removal from office, when compared with what is regarded in other domestic contexts as necessary to ensure security of judicial tenure: I have in mind, for example, sec 12 of the 1971 Act and sec 95 of the Scotland Act. In these circumstances, I am prepared to proceed on the basis that a temporary sheriff does not, as a matter of law, enjoy anything which constitutes security of tenure in the normally accepted sense of that term.
There can be no doubt as to the importance of security of tenure to judicial independence: it can reasonably be said to be one of the cornerstones of judicial independence. The critical importance of judicial security of tenure has been recognised in Scots law since at least the declaration in art 13 of the Claim of Right 1689 (cap 28, APS IX 38) that ‘the changing the nature of the judges’ gifts ad vitam aut culpam into commissions durante beneplacito' is ‘contrary to law’. As Lord Blackburn said in Mackay and Esslement v Lord Advocate at p 865: ‘…if the office (being salaried) is judicial, then it is inconsistent with the common law nature of the office that its tenure should be precarious.’ Security of tenure is similarly treated as fundamental in numerous international instruments. One example is the UN Basic Principles on the Independence of the Judiciary, adopted by General Assembly resolutions 40/32 (1985) and 40/146 (1985). Paragraphs 11 and 12 provide: ‘11. The term of office of judges, their independence, security, adequate remuneration, conditions of service, pensions and age of retirement shall be adequately secured by law. 12. Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists.’ The importance of security of tenure to temporary judges in particular is one of the principles stated in the Latimer House Guidelines, ‘Parliamentary Supremacy and Judicial Independence’ adopted by representatives of the Commonwealth Magistrates and Judges' Association and other bodies in June 1998. They state (at para II.1): ‘Judicial appointments should normally be permanent; whilst in some jurisdictions, contract appointments may be inevitable, such appointments should be subject to appropriate security of tenure.’
So far as the European Convention is concerned, the importance of security of tenure is equally well recognised. In Zand v Austria, for example, the Commission stated (at para 80): ‘…according to the principles of the rule of law in democratic states which is the common heritage of the European countries, the irremovability of judges during their term of office, whether it be for a limited period of time or for lifetime, is a necessary corollary of their independence from the Administration and thus included in the guarantees of Article 6(1) of the Convention.’ The Solicitor General however relied on the following passage in the Campbell and Fell judgment (at para 80): ‘It is true that the irremovability of judges by the executive during their term of office must in general be considered as a corollary of their independence and thus included in the guarantees of Article 6(1). However, the absence of a formal recognition of this irremovability in the law does not in itself imply lack of independence provided that it is recognised in fact and that the other necessary guarantees are present.’ The court cited, in support of the second sentence quoted, the Engel judgment.
This passage must in my opinion be read in its context. The Campbell and Fell case, as I have mentioned already, was concerned with the members of a board of prison visitors. The court accepted that the members were unpaid, and that their term of service was kept relatively short because it might otherwise be difficult to find individuals willing to take on the position. In these circumstances, there was no objective reason to imagine that the possibility of removal from office would influence the members in the slightest. That being the situation, it is not surprising that the court considered that the possibility of the Home Secretary's requiring the resignation of a member, which would be done ‘only in the most exceptional circumstances’, could not be regarded as threatening their independence.
The Engel judgment, upon which the Solicitor General also relied, was similarly concerned with a particular factual situation which, in my opinion, bore no relationship to the circumstances of the present appeals. That case concerned the military members of a military court. They were appointed to the court upon the joint recommendation of the Ministers of Justice and of Defence. They could also be dismissed upon the joint recommendation of those two ministers. Their appointment was normally the last in their service career. They were not under the command of any higher authority and they were not under any duty to account for their judicial acts to the service establishment. They sat on a collegiate court which included two justices of the Supreme Court or the Court of Appeal. In this context, again, it is not altogether surprising that the court did not regard a legal guarantee of security of tenure as essential. Since the military judges were at the end of their service career and did not have to account for their judicial acts, they might be considered to have nothing to hope or fear from the military establishment as a result of their judicial actings. Their independence was also protected by the other factors mentioned, notably the fact that their removal required the agreement of the Minister of Justice as well as the Minister of Defence, and the fact that they did not sit alone. I am also inclined to consider that the court might not, for understandable reasons, impose quite as demanding standards upon military tribunals as upon the ordinary criminal courts.
The remaining Strasbourg authority on which the Solicitor General relied was the decision in Eccles. That case concerned the Special Criminal Court established in Ireland as a consequence of the troubles in Northern Ireland. The statute under which the court was established provided that its members could be removed at will by the Government. It had to sit as a bench of at least three members. The members of the court were serving or retired judges of the ordinary courts. The existence or content of individual opinions was not to be disclosed. The court possessed a guarantee of independence in the carrying out of its functions which derived from the Constitution. In these circumstances I find it unsurprising that the Commission felt able to conclude that the court possessed the necessary degree of independence. The nature of the membership of the court was such that removal from that particular office would not have jeopardised the members' judicial careers. The non-disclosure of individual opinions in any event protected individual members from the risk of influence or interference. The constitutional guarantee also provided further protection of their independence. The exceptional circumstances in which the court had been established were also a factor to be borne in mind.
Although it was not cited to us, I should also mention the decision of the European Commission on Human Rights in Stieringer v Germany, a decision on admissibility. That case concerned a criminal trial before a court composed of three judges and two lay assessors. Two of the judges were probationary judges. Prior to the completion of their probationary period, the probationary judges were liable to removal by the judicial authorities, subject to statutory conditions including a right to challenge their removal before a disciplinary court. Under German law, their participation in a trial had to be justified by some imperative necessity: in the case in question, it was held by the German courts that the exceptional increase in the workload of the judiciary following German unification constituted such a necessity. In these circumstances, the Commission found that there was no violation of art 6(1). That case appears to me distinguishable from the present appeals in several respects: the probationary judges could not be removed from office by the executive; their removal was subject to judicial control; their deployment in a judicial capacity had to be justified by some imperative necessity; and they did not sit alone.
None of these cases can, in my opinion, be regarded as establishing that the practice described to us is an adequate substitute for legal security of tenure. It is apparent that the system as operated depends on an assessment by the Scottish Executive, or in practice an assessment by the Lord Advocate, of what should be regarded as grounds for removal from office (or as grounds for not renewing the appointment or for deciding not to allocate work to a particular temporary sheriff, which are in substance equivalent to removal from office), and of what general policies should be followed (eg as to retiral age). The practice may alter from time to time, as in fact happened when the age limit of 65 was introduced. I do not doubt that the system has been operated by successive Lords Advocate with integrity and sound judgment, free from political considerations, and with a careful regard to the need to respect judicial independence. That is no doubt why it has operated for so long without occasioning any widespread expression of public concern, although disquiet has on occasion been expressed by members of the judiciary and others in Parliament and in academic or professional contexts. There is, however, no objective guarantee of security of tenure, such as can be found in sec 12 of the 1971 Act; and I regard the absence of such a guarantee as fatal to the compatibility of the present system with art 6.
The Solicitor General emphasised that it is inconceivable that the Lord Advocate would interfere with the performance of judicial functions. I readily accept that; but that is not the point. Judicial independence can be threatened not only by interference by the executive, but also by a judge's being influenced, consciously or unconsciously, by his hopes and fears as to his possible treatment by the executive. It is for that reason that a judge must not be dependent on the executive, however well the executive may behave: ‘independence’ connotes the absence of dependence. It also has to be borne in mind that judicial independence exists to protect the integrity of the judiciary and confidence in the administration of justice, and thus society as a whole, in bad times as well as good. The adequacy of judicial independence cannot appropriately be tested on the assumption that the executive will always behave with appropriate restraint: as the European Court of Human Rights has emphasised in its interpretation of art 6, it is important that there be ‘guarantees’ against outside pressures. In short, for the judiciary to be dependent on the executive flies in the face of the principle of the separation of powers which is central to the requirement of judicial independence in art 6.
The same approach can be found in the judgment of the Supreme Court of Canada in R v Valente, delivered by Le Dain J, concerned with the question whether a court was an ‘independent and impartial tribunal’ within the meaning of sec 11(d) of the Canadian Charter of Rights and Freedoms. I agree with the Solicitor General's submission that the starting point for any consideration of the European Convention must be the Strasbourg jurisprudence: any other material lacks its authority and can only be of persuasive value. I also accept that it is essential to treat with caution decisions concerned with other constitutional instruments. It may be tempting to look for assistance, in the interpretation and application of the Convention, to decisions emanating from legal systems belonging to the same tradition as our own; but it is important to remember that the Convention jurisprudence has been influenced principally by the traditions of other European legal systems, and that decisions from common law jurisdictions may therefore be misleading. Nevertheless, the Canadian Charter of Rights and Freedoms is similar in some respects to the European Convention, and the Canadian courts have had regard to the Strasbourg jurisprudence in their interpretation of the Charter. In these circumstances, their decisions are potentially a useful source, albeit one which has to be treated with care.
In Valente, Le Dain J said (at pp 169–170): ‘Although there is obviously a close relationship between independence and impartiality, they are nevertheless separate and distinct values or requirements. Impartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case. The word "impartial", as Howard CJO noted [in the lower court], connotes absence of bias, actual or perceived. The word "independent" in s 11(d) reflects or embodies the traditional constitutional value of judicial independence. As such, it connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly in the Executive Branch of government, that rests on objective conditions or guarantees.’ In support of that approach, Le Dain J cited art 6 of the European Convention. In a subsequent part of his judgment, Le Dain J disapproved the approach of the lower court, which had focused upon whether there could be any reasonable apprehension that the tribunal would not act in an independent manner in the particular adjudication, as confusing independence with impartiality.
I respectfully agree with the approach taken by Le Dain J and in particular with his description of judicial independence as ‘a status or relationship resting on objective conditions or guarantees’, which I believe to be equally applicable to the concept of independence contained in art 6. As the Supreme Court of Canada has subsequently explained, the requirement that there be objective guarantees follows from the fact that independence is a question of status: the objective guarantees define that status (Reference re: Public Sector Pay Reduction Act (PEI), s 10 at p 629, per Lamer CJC). Viewed in this way, the objective guarantees and the appearance of independence are not two entirely distinct concepts: rather, the objective guarantees must be such as to ensure an appearance of independence (at p 630, per Lamer CJC). I also agree with the observation in Valente (at p 176) that ‘security of tenure, because of the importance that has traditionally been attached to it, must be regarded as the first of the essential conditions of judicial independence’, and with the observation (at p 180) that ‘the essence of security of tenure…is a tenure, whether until an age of retirement, for a fixed term, or for a specific adjudicative task, that is secure against interference by the executive or other appointing authority in a discretionary or arbitrary manner’.
I note that a similar argument to that of the Solicitor General was advanced in the Valente case, to the effect that the practice or tradition of the Attorney General amounted to an objective condition or safeguard of judicial independence. That argument had been accepted in the lower court, having regard to the importance of conventions in English constitutional law. The response of the Supreme Court (at pp 182–183) is one with which I would respectfully agree: ‘Tradition, reinforced by public opinion, operating as an effective restraint upon executive or legislative action, is undoubtedly a very important objective condition tending to ensure the independence in fact of a tribunal. That it is not, however, regarded by itself as a sufficient safeguard of judicial independence is indicated by the many calls for specific legislative provisions or constitutional guarantees to ensure that independence in a more ample and secure measure…Reports and addresses on judicial independence in recent years have indicated that the nature and importance of this constitutional value are not so well and widely understood as to give grounds for confidence that its protection can be safely left to the operation of tradition alone…Important as tradition is as a support of judicial independence, I do not think that reliance on it should go as far as to treat other conditions or guarantees of independence as unnecessary or of no practical importance…Moreover, while tradition reinforced by public opinion may operate as a restraint upon the exercise of power in a manner that interferes with judicial independence, it cannot supply essential conditions of independence for which specific provision of law is necessary.’ Other Canadian decisions have reiterated this approach. In R v Genereux, Lamer CJC stated (at p 304): ‘I emphasise, however, that the independence of a tribunal is to be determined on the basis of the objective status of that tribunal. This objective status is revealed by an examination of the legislative provisions governing the tribunal's constitution and proceedings, irrespective of the actual good faith of the adjudicator. Practice or tradition, as mentioned by this court in Valente (p 702), is not sufficient to support a finding of independence where the status of the tribunal itself does not support such a finding’ [Emphasis in original]. More recently, in Reference re: Territorial Court Act (NWT), s 6(2) Vertes J observed (at p 141): ‘The good faith and integrity of the participants in the administration of justice, the practice or tradition, are insufficient to support independence on their own. That is not the test of constitutionality.’
I would only add this. Conceptions of constitutional principles such as the independence of the judiciary, and of how those principles should be given effect in practice, change over time. Although the principle of judicial independence has found expression in similar language in Scotland and England since at least the late seventeenth century, conceptions of what it requires in substance—of what is necessary, or desirable, or feasible—have changed greatly since that time. What was regarded as acceptable even as recently as 1971 may no longer be regarded as acceptable. The effect given to the European Convention by the Scotland Act and the Human Rights Act in particular represents, to my mind, a very important shift in thinking about the constitution. It is fundamental to that shift that human rights are no longer dependent solely on conventions, by which I mean values, customs and practices of the constitution which are not legally enforceable. Although the Convention protects rights which reflect democratic values and underpin democratic institutions, the Convention guarantees the protection of those rights through legal processes, rather than political processes. It is for that reason that art 6 guarantees access to independent courts. It would be inconsistent with the whole approach of the Convention if the independence of those courts itself rested upon convention rather than law.
The Solicitor General's reliance upon the role of the Lord Advocate also appears to me to rest upon a number of assumptions which may or may not prove to be justified. The independent role of the Lord Advocate as public prosecutor is well understood. It has been specifically protected by the Scotland Act (in particular, by secs 27(3) 29(2)(e) and 48(5)), since it cannot be assumed that the conventions and practice observed in Whitehall or Westminster, or the existing law, will necessarily be preserved in the new Scottish context. The Lord Advocate's role in the appointment and removal of members of the judiciary is not mentioned in the Scotland Act (eg in sec 95) and continues to rest on convention. As the Solicitor General acknowledged, it has not yet been decided how these matters will be dealt with in the new context.
The remaining factors relied upon by the complainers do not appear to me to be in themselves fatal to judicial independence, but certain of them are relevant to my opinion that the one year renewable appointment, and the absence of security of tenure, are both objectionable. The fact that the power to recall or renew an appointment is vested in the executive forms part of my reasoning in concluding that temporary sheriffs lack independence. On the other hand, I am not persuaded that it is necessarily objectionable to have such powers vested in the executive, provided adequate safeguards exist (for example, safeguards of the same general nature as are found in sec 12 of the 1971 Act or in sec 95 of the Scotland Act). The fact that the Lord Advocate also has responsibilities as the head of the system of criminal prosecution in Scotland does not necessarily, in my opinion, create any additional problem, again provided that safeguards of the kind I have mentioned are in place. It is important to remember that the Lord Advocate's constitutional independence, now entrenched in the Scotland Act, has the consequence that his only ministerial interest in the conduct of a criminal trial should be to ensure that all the material evidence is placed before the court and that the charges against the accused are properly tried: he should have no ministerial interest in what the outcome of the trial may be (subject to his right to appeal against an unduly lenient sentence). The remaining matter referred to, namely the absence of financial security and the consequent aspiration by some temporary sheriffs for a permanent appointment, does not appear to me to raise an issue in itself under art 6, but it is one of the factors leading me to conclude that a renewable annual appointment, without security of tenure, is inconsistent with judicial independence.
In the discussion so far I have not questioned the assumption made by all parties to these appeals that the powers conferred by sec 11 of the 1971 Act have been transferred to the Scottish Executive by virtue of sec 53 of the Scotland Act. Section 53 however transfers functions only ‘so far as they are exercisable within devolved competence’. That expression is defined by sec 54. It is outside devolved competence to exercise a function (or exercise it in any way) so far as a provision of an Act of the Scottish Parliament conferring the function (or, as the case may be, conferring it so as to be exercisable in that way) would be outside the legislative competence of the Parliament: sec 54(3). A provision of an Act of the Scottish Parliament would be outside the legislative competence of the Parliament if it were incompatible with any of the Convention rights: sec 29(2)(d). Since the exercise of the powers conferred by sec 11 of the 1971 Act, in the manner in which those powers have hitherto been exercised, is in my opinion incompatible with art 6 of the Convention, it follows that the exercise of those powers in that manner is outside devolved competence. The implication is that the statutory power to act in that manner (assuming that sec 11 confers such a power) has been retained by the Secretary of State. When this point was raised at the hearing of the appeals, no party suggested that it could affect the result; and that appears to me to be correct. The problems affecting the present system—an appointment by the executive which is subject to annual renewal, and the absence of security of tenure—would remain, whether the ‘executive’ in question were the Secretary of State or the Scottish Ministers. It might be arguable that the risk to judicial independence would be less serious in that event than in the circumstances assumed in parties' submissions, particularly insofar as the power to renew or recall temporary appointments would be in different hands from the power to make permanent appointments. Nevertheless, the annual renewal of appointments at the discretion of the executive, and the absence of security of tenure, would in my opinion remain incompatible with art 6; and the prosecution of a trial before the temporary sheriff would therefore remain incompetent under sec 57(2) of the Scotland Act (unless sec 57(3) applied).
My conclusion is fortified by the requirement under art 6 that the tribunal must present an appearance of independence. I understand this requirement to mean that the test of independence must include the question whether the tribunal should reasonably be perceived as independent. The importance of that question is that the tribunal must be one which commands public confidence: otherwise, to adopt the words of Le Dain J in Valente (at p 172), ‘the system will not command the respect and acceptance that are essential to its effective operation’. Even if I were mistaken in my conclusion that the necessary objective guarantees of independence were lacking, it seems to me that the need for the temporary sheriff's appointment to be renewed annually at the discretion of the executive, and his lack of security of tenure, are in any event factors which could give rise to a reasonable perception of dependence upon the Executive. The necessary appearance of independence is therefore in my opinion absent.
The remaining matter founded upon, by counsel for the complainers, was the absence of safeguards against conflicts of interest arising between the judicial activities of a temporary sheriff and his practice as an advocate or solicitor. He might, for example, be inclined (at least in theory) to decide a case in a particular way because he or his firm had an interest in another case where the same points arose; or because he wished to show favour to a party who was a client or potential client of his firm; or because he wished to obtain the good will of a party's lawyer with whom he was himself involved (or liable to be involved) as a lawyer in another case. These were only examples of the conceivable conflicts of interest which might arise. The only safeguards were the judicial oath and the administrative practice of not assigning solicitors appointed as temporary sheriffs to courts in which they or their firms practised.
This matter was raised on behalf of the complainers as one of the factors relevant to an assessment of the temporary sheriff's independence. In that regard, it has to be borne in mind that ‘independence’ within the meaning of art 6 has been said to include independence from the parties to the proceedings: Campbell and Fell, para 78 (a formulation which has been criticised as confusing independence—regarded as an aspect of the separation of powers—with impartiality: see, eg, Van Dijk and Van Hoof, Theory and Practice of the European Convention on Human Rights (3rd ed, 1998), p 451; Soyer and De Salvia, in La Convention Européean des Droits de I'Homme, (ed Pettiti, Decaux and Imbert) (2nd ed, 1999), p 260). Nevertheless, I consider this matter to be one which raises primarily an issue of impartiality. I do not regard it as necessary to attempt an exhaustive definition of the concepts of independence and impartiality or to define the distinction between them (questions which have troubled the Supreme Court of Canada, notably in the case of R v Lippé). So far as art 6 is concerned, it is clear that the concepts of independence and ‘objective impartiality’ (which I shall describe in a moment) are closely linked, and the European Court of Human Rights often considers them together (eg Findlay, para 73). In the present case, some of the concerns raised by the complainers in respect of the legal practices of temporary sheriffs might be viewed as relating to a possible lack of independence from the parties—that is to say, they relate to the relationship between the temporary sheriff and the parties—while others pertain directly to the thinking processes of the temporary sheriff. All of them can be considered as affecting the appearance of impartiality as well as being the consequence of the combined status of lawyer and part-time judge. They can all be regarded as pertaining to ‘objective impartiality’ and can be considered under that head, which can also cover all the issues which might arise under the head of independence, notably whether the court presents an appearance of independence from the parties.
In considering the issue of impartiality under art 6, a distinction is drawn between a subjective test, whereby it is sought to establish the personal conviction of a given judge in a given case, and an objective test, aimed at ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect: see, amongst other authorities, the De Cubber judgment at para 24. In the present appeals no suggestion is made that the individual temporary sheriff involved was biased in any way, so it is only the objective test which has to be considered. The critical question, therefore, is whether there were sufficient guarantees ‘to exclude any legitimate doubt’ as to the impartiality of the temporary sheriff.
It is not in dispute that the only guarantees that a temporary sheriff will avoid a conflict of interest are his judicial oath and, in the case of a solicitor, the rule of practice that he will not be allocated to a court in which he or his firm practises (even though he has been appointed sheriff for the whole of that sheriffdom). The rule of practice, even if strictly followed, does not exclude all possibility of a conflict of interest; and it has no application to advocates, who are available for instruction in all courts and comprise approximately 50 per cent of temporary sheriffs. In reality, therefore, the avoidance of conflicts of interest depends on the judicial oath (‘to do right…without fear or favour, affection or ill will’) and on the integrity of the individual temporary sheriff.
I do not consider that the judicial oath is a sufficient guarantee to exclude all legitimate doubt. I accept that it is an important protection, both because of its innate gravity and the consequent weight of the obligation undertaken, and because any violation of the oath which was detected would be likely to be treated as a matter of the utmost seriousness. Of necessity, however, it is very general in its terms, and it does not offer any specific guidance as to the circumstances in which it would be inappropriate for a part-time judge to sit due to the possibility of a conflict of interest existing or being perceived to exist. It may be said that it is reasonable to leave such matters to the judgment and integrity of the individual judge, who ex hypothesi has been assessed as being of suitable character to hold judicial office. One difficulty with that argument is that compliance with the oath, in respect of a matter of this kind, is likely to be self-policing, since the parties to a case before a part-time judge are unlikely to know of his interests as a legal practitioner; nor, given the confidentiality of legal practice, is there any possibility of their being entitled to obtain that information. Full-time sheriffs are not, as a matter of law, entitled to practise law: sec 6(1)(a) of the 1971 Act. Even in the absence of such a statutory provision, it would be regarded as incompatible with judicial office for any full-time judge to engage in private practice as a lawyer. In the case of full-time judges, then, the avoidance of conflicts of interest arising from legal practice is guaranteed by more than the judicial oath alone. Why should the oath be regarded as a sufficient guarantee in respect of part-time judges?
In considering this question, I have found assistance in the decision of the Supreme Court of Canada in Attorney General v Lippé. That case concerned the question whether part-time judges constituted an independent and impartial tribunal within the meaning of sec 11(d) of the Canadian Charter of Rights and Freedom and sec 23 of the Quebec Charter of Rights and Freedoms. In the Quebec Court of Appeal, Proulx JA observed ( 60 CCC (3d) 34 at pp 76–77, as translated): ‘A conflict of interest does not only arise in matters of a financial nature, but may also arise in moral or psychological or even professional matters (see P Garant, Droit Administratif (2nd ed), p 765). This is a notion which is not easy to determine and which in practice allows for more than one interpretation: how can one accept a system of justice which is susceptible to creating conflicts of interest and where the public must place confidence in a judge, who will be placed or who places himself in a conflict of interests, to reveal such conflict? With respect, I consider that it is not sufficient that a system ultimately relies on the intellectual honesty of the person who is in the middle of the conflict to reveal it.’
I respectfully agree with those observations. In the Supreme Court of Canada, Lamer CJC, with whom Sopinka and Cory JJ agreed, dealt with the issue as one of impartiality rather than independence, and focused on the issue as one of ‘institutional’ impartiality. I find that a helpful way of distinguishing the particular type of problem with which these appeals are concerned in relation to this point, namely whether the system is structured in such a way, at the institutional level, as to give rise to a reasonable apprehension that the judge may not be impartial. In holding that for part-time judges to engage in legal practice was prima facie incompatible with institutional impartiality, but that adequate safeguards were in place, Lamer CJC emphasised in particular that the judges in question were subject to a code of ethics which required them, inter alia, to avoid any conflict of interest. The code was given statutory effect, and a statutory procedure existed to enforce the code, which involved the investigation of complaints and could result in the judge's removal. In addition, part-time judges were subject to other statutory provisions which prohibited them from acting in a variety of specified ways, so as to avoid conflicts of interest. These provisions, inter alia,prohibited a part-time judge from hearing a case involving an issue which was similar to one in a case in which he represented one of the parties. In the light of all the legislative safeguards, the Supreme Court concluded that the system was not such as to give rise to a reasonable apprehension of bias in the mind of a reasonable and well-informed person. So far as temporary sheriffs are concerned, on the other hand, there are no such legislative safeguards. I appreciate that there are differences between the Canadian and Scottish situations (particularly in relation to the role of advocates, who may have a less client-orientated practice than Canadian practitioners are likely to have in their fused profession). Nevertheless, I agree with the view taken in the Canadian cases that reliance on the oath, and unenforceable traditions, are an inadequate safeguard.
It is however essential to remember that the present appeals are concerned with the compatibility of a particular criminal trial with art 6. In the trial, the only party (apart from the appellants themselves) was the procurator fiscal. Whatever the position might be in civil proceedings, I have difficulty seeing, in general terms, how any legitimate doubts could arise in a criminal trial, by reason of a temporary sheriff's being in practice as a lawyer, as to his objective impartiality or as to his independence from the procurator fiscal. It is difficult to see any reason why a temporary sheriff might be inclined to decide the case in favour of the prosecution because of his own interest in another case. It is conceivable in theory that in a high-profile case a temporary sheriff might be influenced by the effect which his decision might have upon his private practice, but there is no suggestion that that is a possibility in the present case. It is equally difficult to envisage the possibility that a temporary sheriff might wish to show favour to the procurator fiscal because she was, or might become, a client of his firm: such a suggestion would have no objective justification. It is theoretically possible that a temporary sheriff might wish to show favour to the procurator fiscal because he was involved with her (or was liable to be involved with her) as a defence lawyer in another case: it is conceivable, for example, that an advocate sitting as a temporary sheriff might at some future date act as a defence counsel in proceedings brought by the same procurator fiscal. Nevertheless, the risk that a possibility of that kind might influence a temporary sheriff could be expected to be remote. In the present appeals, no specific suggestion was made as to how, in criminal proceedings in general, or in this trial in particular, the independence or impartiality of the temporary sheriff might be compromised by his private legal practice. I accordingly reject this part of the appellants' argument.
Given my conclusion that trial before a temporary sheriff violates the right of the complainers under art 6 to a trial before an independent and impartial tribunal, and the Solicitor General's concession that such a trial involves the doing of acts which must be taken to be acts of the Lord Advocate for the purposes of sec 57(2) of the Scotland Act, it follows that sec 57(2), if it is applicable, renders those acts incompetent. The Solicitor General argued, however, that sec 57(2) was inapplicable, by reason of sec 57(3).
Section 57(3) is in the following terms: ‘Subsection (2) does not apply to an act of the Lord Advocate—(a) in prosecuting any offence, or (b) in his capacity as head of the system of criminal prosecution and investigation of deaths in Scotland, which, because of subsection (2) of section 6 of the Human Rights Act 1998, is not unlawful under subsection (1) of that section.’ 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.’
The application of these complex provisions is not made any easier in the present case by a lack of certainty as to the ‘acts’ which are relevant. Counsel for the complainers pointed to various acts consequent upon the Crown's decision to continue with the prosecution (eg having the case called, calling witnesses, leading evidence and making motions to the court), and argued that ‘acts’ could in any event encompass failures to act, such as the failure to invite the temporary sheriff to decline jurisdiction and to discharge the trial diet. Counsel relied in this regard on the opinion of Lord Penrose in HM Advocate v Robb. The Solicitor General responded by conceding that the ‘formal processes’ carried out by the procurator fiscal during a trial were ‘acts’ within the meaning of sec 57(2). Examples mentioned were deciding to have the case called, seeking a conviction and moving for sentence. Counsel for the complainers indicated that they were content with that concession.
The Solicitor General relied on sec 6(2)(a), and submitted that the procurator fiscal could not have acted any differently, having regard to the public interest. I cannot accept this submission. The public interest does not appear to me to enter into a consideration of sec 6(2)(a). The issue is whether the procurator fiscal was prevented from acting differently as the result of primary legislation. No legislation compelled the procurator fiscal to continue with the trial. I also reject, in any event, the suggestion that the public interest compelled the procurator fiscal to continue with the trial, given that the trial was ex hypothesiincompatible with art 6 (having regard to the effect now given to art 6 in domestic law as well as in international law), and given that the trial diet before the temporary sheriff could have been discharged and a fresh diet fixed before a permanent sheriff. I also entertain a doubt whether, in giving effect to sec 6(2)(a), the ‘primary legislation’ in question may not have to be interpreted in accordance with sec 3 of the Human Rights Act (which is reflected in the terms of sec 6(2)(b), and which might have a significant effect upon the interpretation of sec 11 of the 1971 Act): although sec 3 is not yet in force, sec 129(2) of the Scotland Act might require it to be taken into account in applying sec 57(3) of that Act. I do not wish to express any view on that issue, however, as it was not fully argued before us.
Faced with all these difficulties in reconciling sec 11 of the 1971 Act, as he had invited the court to construe it, with art 6 of the Convention, the Solicitor General finally submitted, very briefly, that if the court was against his submissions so far, it might nevertheless take the view that sec 11(4) might be construed in such a way as to render it compatible with art 6, by applying the principle of interpretation expressed in ex parte Brind and T, Petitioner. In particular, the Solicitor General submitted that the reference in sec 11(4) to ‘recall’ of an appointment by the Secretary of State might be construed as referring only to recall in specific circumstances: namely, the fulfilment of a temporary purpose, retiral age, the failure to fulfil a quota, or some other proper cause such as inability, neglect of duty or misbehaviour. This submission, which was not developed in detail, was made without any change in the Solicitor General's position as regards the correct construction of sec 11(2)(c) (where a similar concession would be liable to bring into question the vires of appointments).
I am unable to accept this submission. In the first place, the principle of interpretation in ex parte Brind only applies if the legislation in question can be regarded as ambiguous, in other words as reasonably capable of more than one meaning: in that event, one is directed towards the meaning which is compatible with the Convention rather than the one which is incompatible with it. The Solicitor General did not indicate any respect in which sec 11(4) was ambiguous. I cannot see any basis upon which the limitations upon the power of recall suggested by the Solicitor General might be regarded as a meaning which could reasonably be given to the words used in sec 11(4).
As I have indicated above, I entertain doubts whether the power of recall mentioned in sec 11(4) is as entirely insulated from judicial review as was implicit in the Solicitor General's position, even if his construction of sec 11(2)(c) is correct. Nevertheless, I am unable to accept that the power of recall can be construed (unless and until, perhaps, sec 3 of the Human Rights Act comes into play) as restrictively as the Solicitor General finally suggested we might hold. That the power of recall might be restricted to the fulfilment of a temporary purpose appears to me to be arguable only if the power of appointment is similarly restricted; and that was not the Solicitor General's position in relation to sec 11(2)(c). Even if one were to characterise the present system as being (in a certain sense) one of appointments intended to fulfil a temporary purpose, it is difficult to see how that ‘temporary’ purpose could ever be said to have been definitely fulfilled. I do not see any basis upon which the power of recall could, by implication, be said to be exercisable specifically at a retiral age selected by the executive: the retiral age mentioned in sec 11(4A) is 70 (subject to the power to authorise continuance in office to 75: sec 11(4B)), and that age limit operates as a limit upon the power of appointment rather than as a ground for recall. Nor do I see any statutory basis for linking recall specifically to the failure to fulfil a quota of 20 days service per annum: the existence of the quota is predicated upon the existence of a wide discretionary power to recall, which can be guided by general policies of that kind. The introduction of the specific criteria of inability, neglect of duty or misbehaviour, as a matter of implication, appears to me to be impossible given the specific exclusion of temporary sheriffs from the scope of sec 12 of the 1971 Act, where those criteria are to be found. More fundamentally, however, it appears to me that even if all these limitations could be implied into sec 11(4), the power of recall would still be inconsistent with art 6, because it would still be exercisable at the discretion of the executive, subject only to judicial review on Wednesbury grounds.
For the foregoing reasons, I agree with your Lordships that the bills of advocation by Starrs and Chalmers should be passed. The appropriate procedure thereafter is for the sheriff to discharge the trial diet and remit the case to proceed at a fresh trial diet before another sheriff, following the procedure approved by this court in MacLeod v Williamson.
Before concluding this part of my opinion, I wish to make it plain that I am not suggesting that any temporary sheriff has ever allowed his judicial conduct to be influenced by any consideration of how he might best advance his prospects of obtaining the renewal of his appointment, or his promotion to a permanent appointment. Nor am I suggesting that any official or minister has ever sought to interfere with the judicial conduct of a temporary sheriff or would ever be likely to do so. There is, however, no objective guarantee that something of that kind could never happen; and that is why these appeals must succeed.
I can deal very briefly with the Crown appeal, as there is nothing that I can usefully add in this regard to the opinion of your Lordship in the chair.
For the reasons given by your Lordship, I agree that it was incompetent, during the course of a trial diet which was part-heard by the temporary sheriff, for another sheriff to intervene in the proceedings so as to allow a devolution issue to be raised. The Crown bill of advocation should therefore also be passed.
The permission for BAILII to publish the text of this judgment
was granted by Scottish Council of Law Reporting and
the electronic version of the text was provided by Justis Publishing Ltd.
Their assistance is gratefully acknowledged.