HIGH COURT OF JUSTICIARY
REPORT TO THE INNER HOUSE OF THE COURT OF SESSION
T. G. COUTTS, Q.C. SITTING AS A TEMPORARY JUDGE
ROBIN DEMPSEY CAIRD
Pursuer; Bovey, QC, Summers, Bennett & Robertson
Defender: Stewart, QC, McColl, Balfour & Manson, WS
10 December 1999
It is in the undernoted circumstances of this particular case that I have felt it necessary to report to the Inner House for guidance.
Appointment as Temporary Judge
Temporary Judges of the Court of Session were created by section 35 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. The applicable provisions are found in p.35 and Schedule 4:
" 35.-(3) Notwithstanding any provision in any enactment, if it appears expedient to the Secretary of State he may, in accordance with the provisions of paragraphs 5 to 11 of the said Schedule, and after consulting the Lord President, appoint persons to act as temporary judges of the Court of Session."
Schedule 4 states:
" Temporary judges
5. Any person who is eligible under -
(a) paragraph 1 above; or
(b) any other enactment,
for appointment as a judge of the Court of Session may be appointed as a temporary judge under section 35(3) of this Act for such period as the Secretary of State may determine, but, subject to paragraph 9 below, no such appointment shall extend beyond the date on which the person reaches the age of 75 years.
6. Subject to paragraph 7 below, a person appointed as a temporary judge under the said section 35(3) shall, while so acting, be treated for all purposes as, and accordingly may perform any of the functions of, a judge of the Court in which he is acting.
7. Subject to paragraph 8 below, a person shall not, by virtue of paragraph 6 above, be treated as a judge of the Court of Session for the purposes of any other enactment or rule of law relating to -
(a) the appointment, tenure of office, retirement, removal or disqualification of judges of that Court, including, without prejudice to the generality of the foregoing, any enactment or rule of law relating to the number of judges who may be appointed; and
(b) the remuneration, allowances or pensions of such judges.
8. A person appointed to be a temporary judge of the Court of Session shall, by virtue of such appointment, be a temporary Lord Commissioner of Justiciary in Scotland.
9. Notwithstanding the expiry of any period for which a person is appointed under the said section 35(3) to act as a judge -
(a) he may attend at the Court of Session or the High Court of Justiciary for the purpose of continuing to deal with, giving judgment in, or dealing with any matter relating to, any case begun before him while acting as a judge of either Court; and
(b) for the purpose, and for the purpose of any proceedings arising out of any such case of matter, he shall be treated as being or, as the case may be, having been, a judge of the relevant Court.
10. The Secretary of State may pay to a person appointed under the said section 35(3) such remuneration as he may, with the consent of the Treasury, determine.
11. The appointment of a person to act as a temporary judge under the said section 35(3) is without prejudice to -
(a) any appointment held by him as a sheriff principal or sheriff; or
(b) his continuing with any business or professional occupation not inconsistent with his acting as a judge."
It is to be noted that the statute contains no terms as to length of continuance in office nor any provision for removal from that office. The first appointments were made in 1991 by the then Secretary of State and were for a period of three years. My own appointment was twice renewed and the terms under which the appointment was made on 17 February 1997 by the Secretary of State for Scotland are:
"In exercise of the powers conferred by section 35(3) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 the Secretary of State, having consulted the Lord President, hereby appoints Thomas Gordon Coutts, Esquire, Queen's Counsel, being a person qualified to fill the office of Temporary Judge of the Court of Session to act as a Temporary Judge of the Court of Session on such occasions as the Lord President may from time to time direct. The appointment shall subsist until the fourth Day of April, Two Thousand."
It is to be noted that unlike a Temporary Sheriff there is no provision in the commission for recall by the Secretary of State and after appointment the entire administration of the appointment is in the hands of the Lord President. For the sake of completeness it should be stated that initially the then Lord President issued limiting guidelines on the use to be made of Temporary Judges. Of these few subsist with the passage of time, for example originally no Temporary Judge acting in the High Court of Justiciary could act in an appellate capacity. Inter alia motions, civil jury trials and divorce procedures were originally excluded. The current restrictions imposed by the Lord President on the use of Temporary Judges, so far as applicable to practising members of the Bar, are that they do not sit in civil jury trials, nor on cases of particular public interest, Judicial Reviews, actions on the Commercial Roll or motions for Interim Interdict, in an appellate capacity or in any criminal matters. It has been further directed that no Temporary Judge is to be employed for business either in the High Court of Justiciary or the Court of Session without the prior agreement of the Lord President. These restrictions are, accordingly, not the product of statute nor by reason of any acting of the Secretary of State but reflect the way in which a Lord President may choose to deploy the resources at his disposal. It is further to be noted that the appointment above quoted was made by the previous UK administration and ante-dates both the Human Rights Act 1998 and the Scotland Act 1998.
Utilisation of a Temporary Judge in the instant case
It having been ascertained that there was a shortage of available Judges to conduct the business of the Court for the week commencing 27 September 1999 I was asked whether I was available and prepared to sit. I was able to make myself available and, after consultation with the Lord President, the Keeper of the Rolls allocated to me on Friday 24 September the proof in the instant case, which was scheduled to last for more than one week. No objection to that allocation or to my conducting the proof was taken prior to its commencement. In particular it was not asserted that any devolution issue arose therefrom nor was any question of judicial independence or impartiality raised. The proof was heard and concluded, submissions for the parties were made by the junior counsel then acting and I made avizandum. In the course of their submissions counsel made much of the issue of credibility but, in addition to that, counsel for the defender contended that there was, at the end of the proof no evidence before the Court upon which damages could be assessed. This was the result, she said, of deficiencies in the proof.
While I was in the course of completing my opinion, the Opinions of the Judges of the High Court of Justiciary in Starrs and Chalmers v Procurator Fiscal, Linlithgow were issued on 17 November 1999. Although that case concerned the criminal jurisdiction of a Temporary Sheriff appointed for one year and whose appointment could be revoked at any time in terms of Statute or renewed at the pleasure of the Lord Advocate, certain obiter dicta therein were, potentially, matters of concern in the utilisation of Temporary Judges.
It was thought appropriate to put out By Order the three cases that I had outstanding. Two, including the present were at avizandum and the third was a continued procedure roll. They were put out so that, if so advised, an informed consent, if that were necessary to their being concluded by myself, could be noted in these cases. In the two other cases no point was taken about the independence of the tribunal and parties wished the cases to be completed by me. In the present case, however, at the By Order Roll both parties were represented by senior counsel for the first time. Mr Stewart for the defender wished the Court to issue the judgment: Mr Bovey for the pursuer said that he wished to raise a devolution issue and stated at the outset that the pursuer's position was that a Temporary Judge did not constitute an independent and impartial tribunal. He sought to be allowed at that stage in the case to raise on the pursuer's behalf a devolution issue other than in the pleadings before evidence was led as the Rules indicate. He further said that the matter of the devolution issue should be referred to the Inner House because (1) I would have a personal interest in the outcome, (2) the independence and impartiality of Judges of the Court of Session was a matter of importance and (3) he was unable to move me to remove the case to another Judge to let the issue be raised.
It was said that the issue which arose was whether a Temporary Judge is an independent Judge in an objective sense. There were, counsel said, four elements which meant that there was no institutional independence in my sitting as a Temporary Judge: first, there was no tenure; second, my continuing in practice while acting as a Temporary Judge; third, my short period of office; and fourth, "the manner in which the commission was phrased was typical of that of a Temporary Judge". He quoted the opinion of Lord Prosser in Starrs and Chalmers v Procurator Fiscal, Linlithgow and in particular the following:
"The requirements of Article 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."
That, said counsel, (despite the terms of the last sentence), was authority for the proposition that a Temporary Judge in the Court of Session appointed in terms of the statute was not an independent or impartial tribunal whether in civil or criminal proceedings. He further illustrated the proposition by reference to other dicta in Starrs and in various cases in various jurisdictions but conceded that these were all in relation to criminal proceedings save that of Werner v Austria, a judgment of the European Court of Human Rights issued on 24 November 1997. (That case concerning as it did a right to a public hearing did not appear to me to have compelling relevance to the issue sought to be raised).
There was, said counsel, a real risk that a well informed observer would conclude that a Temporary Judge sitting in civil matters was not an independent and impartial tribunal because of the terms of the appointment and continuance in practice. No significance could be attached to the fact that a Temporary Judge had taken a judicial oath. He said that this was a matter which would arise at common law if not under the European Convention on Human Rights and regardless of the Scotland Act.
With regard to the provisions of the Scotland Act he argued that the act which was complained of was the act of the Keeper of the Rolls in allocating the proof. That act was in breach of a person's right to a fair trial. He founded that proposition on section 57(2) of the Scotland Act 1998 as follows:
"(2) A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law."
Scottish Executive is defined in p.44:
"44.-(1) There shall be a Scottish Executive, whose members shall be -
(a) the First Minister,
(b) such Ministers as the First Minister may appoint under section 47, and
(c) the Lord Advocate and the Solicitor General for Scotland.
(2) The members of the Scottish Executive are referred to collectively as the Scottish Ministers.
(3) A person who holds a Ministerial office may not be appointed a member of the Scottish Executive; and if a member of the Scottish Executive is appointed to a Ministerial office he shall cease to hold office as a member of the Scottish Executive.
(4) In subsection (3), references to a member of the Scottish Executive include a junior Scottish Minister and 'Ministerial office' has the same meaning as in section 2 of the House of Commons Disqualification Act 1975."
The act, he said, was that of the Scottish Executive or the Keeper of allocating a case to a Temporary Judge or alternatively the act was the failure of the Scottish Executive to recall the appointment of Temporary Judges.
He submitted that he was not barred from raising the issue at the time he did. He said that it was unreasonable to expect the issue to be raised at the allocation of the proof, that the decision of the Court in Starrs and Chalmers was not then available and that the Court could allow a Minute of Amendment or a minute in the proceedings to raise this issue at any time. It would be practical, convenient and economic if the issue were to be allowed to go forward at this time rather than, possibly, at a later stage on appeal.
In summary, he said the issues were:
(1) whether, by terms of and in consequence of the appointment, a Temporary Judge could constitute an independent and impartial tribunal as guaranteed by law;
(2) whether in allocating the case to a Temporary Judge the Keeper of the Rolls acted contrary to section 57(2) of the Scotland Act;
(3) whether in failing to recall the Temporary Judge's commission the Scottish Executive had acted contrary to human rights; and
(4) that it was necessary to have a determination in any event as to what procedure should be followed hereafter.
Submissions for defender
Mr Stewart made three principal submissions, the basic submission being that there was no devolution issue in terms of the Scotland Act nor the Rules of Court. Further, if there was, it was too late to raise it in this first instance forum but if it was to be allowed to be raised the proper way in which to raise it was in writing by way of a minute lodged.
With regard to Mr Bovey's contention that the appointment was struck at by the common law he said that even Scottish sheep knew that declinature had to be raised at the outset citing Duke of Athole v Robertson 8 M.299 at 302 where Lord Neaves dealt with the issue as noted:
"There are other objections which not only ought to be taken at first, but which cannot be afterwards stated, unless they have merely emerged or newly come to the parties' knowledge. Such are those objections of partiality or enmity, which must originate with the party stating them, and which, if not stated at once, cannot afterwards be proponed, for the very obvious reason that no man is entitled to litigate in the hope of a favourite judgment, and then, when he gets judgment against him, repudiate the jurisdiction. He must be held, from his silence, either to have been conscious that objection was ill founded, or to have passed from it for ever.
This rule has been received in all systems of law. By the canon law no exception to the Judge could be taken after litiscontestation. The procedure in the canon law was peculiar; when a declinature of the Judge was proponed arbiters were appointed to try the question, as may be seen in Oughton's Ordo. Judicorum, or, as may be learned in a more popular shape from the account of Henryson's Fables of a trial between the dog and the sheep, in which the wolf sits as judge. The sheep, when called on to plead, declines the judge and
'This is my cause, in motive and effect:
The law sayis, it is richt perrilous
Till enter in pley befoir ane juge suspect;
And ye, Schir wolf, hes bene richt odious
To me, for with your tuskis ravenous,
Hes slane full mony kinnismen of myne;
Thairfoir as juge suspect, I yow declyne.'
The whole procedure that follows is an accurate picture of the forms of procedure then observed in Consistorial Courts.
I further agree in thinking that the averments in this condescendence are not relevant. Some overt acts, or at least unequivocal declarations of deadly feud must be averred, and not mere feelings of liking and disliking."
The Scotland Act does not effect the importation of the European Convention into the jurisdiction of the Scottish Courts. The limited way in which the Convention is to be incorporated is in the rather special inclusion of certain matters until the Human Rights Act 1998 takes effect. In the Government of Scotland the matters reserved to the central Government are not subject to the provisions which affect the Scottish Executive. Equally local Government and the Courts are not affected by the provisions of the Scotland Act 1998. It will be otherwise when the Human Rights Act 1998 takes effect but until then it is only the relevant acts and omissions of the Scottish Parliament and the Scottish Executive which have to be conducted in accordance with the European Convention. The Scottish Executive is a concept which is defined by section 44 of the Scotland Act 1998 and is plainly so defined.
When the High Court of Justiciary was seized of a devolution issue in Starrs and Chalmers it was so seized only because the Crown made a concession that the Procurator Fiscal's actings were actings of a member of the Scottish Executive for the purposes of Article 6(1). No such concession is made here and neither the actings of the Lord President nor of the Keeper of the Rolls are actings of the Scottish Executive. The High Court judges were concerned to emphasise that they proceeded on a concession:- see the Lord Justice Clerk in paragraph 4 of his opinion and Lord Reed also in his paragraph 4, who said:
"It is conceded by the Solicitor General for Scotland that the prosecution of a trial by a Procurator Fiscal or one of his or her deputes involved a number of steps which amount to acts within the meaning of section 57(2) and that those acts are to be treated as acts of the Scottish Executive for the purposes of that provision."
The actings of the Keeper of the Rolls are not actings of members of the Scottish Executive. The Legislature did not extend the meaning of Scottish Executive beyond the principals therein mentioned to functionaries at any level.
A Temporary Judge is not in a contract of service. The terms of his employment do not permit recall before expiry of the commission. There is no power to recall or for the termination of that appointment by anyone, which is in contrast with section 11(4) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 which deals with Temporary Sheriff Principals or Temporary Sheriffs. That section provides that that appointment shall subsist until recalled by the Secretary of State. Even if there were a power in the Executive to remove a Temporary Judge that was not exerciseable by the Scottish Executive but only by the Secretary of State. The Scottish Executive of itself has no competence to act in contravention of the Convention right and accordingly the Scottish Executive could not remove a Temporary Judge at will. There is no devolution issue.
So far as the Keeper of the Rolls is concerned he is part of the Court and does not perform any executive function; he is not as was the functionary in Caltrona v The Commissioners of Works 1943 2 All.E.R. 560 acting by order of the Executive.
Further, if there is a Devolution issue it is too late to raise it. There is no cause shown and no cause for departing from the Rules of Court which provide for the raising of devolution issues at particular times. The Human Rights Act 1998 Chapter 42, section 7 talks about the victim of an unlawful act. There has to be a victim. That is not a concept which is easy to grasp in a civil context between two litigating parties. In that situation there is no victim.
Counsel urged the Court not to do anything other than issue the judgment first.
Mr Bovey disclaimed any personal attack upon my independence and impartiality. It would be inappropriate, however, that I should be required to decide the issues he raised. My Judicial Oath enjoined me to deal without fear or favour with issues however delicate or sensitive, but I cannot be expected to adjudicate upon a matter in which the independence of the tribunal over which I have presided is called in question. The persuasive argument about lateness presented by Mr Stewart might prevail if an attempt were made to raise a different type of devolution issue at as late a stage in proceedings as has been done here, but it is not proper for me, as an exercise of discretion, to refuse to allow the present matters to be raised in this present case.
I suspect that distinctions other than those adumbrated by Mr Stewart can be drawn between the present situation and the decision of the Court in Starrs. It would be equally inappropriate for me to make pronouncements in that regard. I merely note that nowhere in the opinions in Starrs was it suggested that an office-holder who was asked to sit as a judge if and when the Head of the Court perceived it to be necessary for the efficient functioning of the Court, but who could not be required so to sit, either lacked or could reasonably be perceived to lack independence. Furthermore, a Temporary Judge cannot be "side-lined" by the Executive if they are not content with his decision. The Executive does not determine whether, when or on what cases he sits.
I am also of the view that it would not be proper for me to determine in this present case whether the actings of the Lord President or of the Keeper of the Rolls in deciding upon the need for and use of a Temporary Judge could be categorised sensibly as an act of the Scottish Executive.
It is for consideration whether, as has been suggested, the decision in Starrs and Chalmers carries with it the implication that in order to be an independent tribunal an adjudicator must hold a permanent office with guaranteed employment. Such a rule might seem wholly impracticable given the exigencies necessarily encountered in the operation of a Court. The utilisation of persons acting part time or when required in the fulfilment of an office has been seen to be a practical solution to manning problems. This has been particularly so in matters of civil dispute, resolution of which does not necessarily require the intervention of a Court, in marked contrast with matters of criminal prosecution.
Even wider implications have been sought to be derived from Starrs. It has been suggested that no part time judge, chairman or tribunal member who sits when required fulfils the requirements of Article 6.1 of the Convention. While it may not be necessary to determine that issue at present it is to be noted that the European Court of Human Rights has frequently held in relation to administrative tribunals that an adequate appeal or review procedure brings any such body within Article 6.1, see Campbell & Fell v UK (1984) 7 E.H.R.R. 165; Bryan v UK (1995) 21 E.H.R.R. 342.
With regard to the matter of impartiality, had that been the sole issue I would not have reported this case. A judge, says the European Court of Human Rights, will be presumed impartial unless there is proof to the contrary. Piersack v Belgium (1982) 5 E.H.R.R. 169; Thomann v Switzerland (1997) 24 EHRR 553 and Campbell & Fell (supra) at paras. 84 and 85. No such proof was offered in this case.
I have taken the view that it is necessary for me to remit this matter to the Inner House for a decision on whether a devolution issue arises and if so what the effect of that issue is in this case and for directions as to further procedure, i.e. whether I should issue my opinion on the merits or otherwise. In order to focus the alleged devolution issue before the Inner House I ordain the pursuer, if the matter is to be pursued, to lodge within seven days hereon a minute sufficiently setting forth in writing the devolution issue sought to be raised. I further ordain the pursuer to intimate that Minute to the defender, the Advocate General and to the Lord Advocate and thereafter allow them if so advised, fourteen days to answer. Since the matter will by that time be before the Inner House any concerns about the competence or propriety of my issuing such an interlocutor can be raised there.