Scottish High Court of Justiciary Decisons

DAVID CAMERON MILLAR and PAUL STEWART and KERRY PAYNE and JOSEPH TRACEY and DAVID LEDGER MARSHALL v. PROCURATOR FISCAL, ELGIN and PROCURATOR FISCAL, DUNDEE and PROCURATOR FISCAL, STIRLING [2000] ScotHC 82 (3rd August, 2000)

[1] These five Bills were heard together. The four Bills of Suspension came before the court on 16 March 2000, when they were continued in circumstances referred to in the Opinion of the Court of that date. The issues raised in each of those Bills relate to the decision in Starrs v. Ruxton; Ruxton v. Starrs 2000 JC 208, and it was seen as appropriate that the four Bills should be dealt with together, as they exemplified a number of different situations in which the same basic issues might arise. The issue in the Bill of Advocation is similar and at the continued hearing on the Bills of Suspension, it was seen as appropriate to deal also with the Bill of Advocation.

[2] All five Bills arise out of proceedings before temporary sheriffs. In the case of David Millar, the proceedings (in Elgin Sheriff Court) were solemn. In the other four cases the proceedings were summary (against Marshall in Stirling Sheriff Court, and against the other three complainers in Dundee Sheriff Court). The cases are unrelated. Two dates are significant in relation to all five Bills. 20 May 1999 is the date on which the Lord Advocate became subject to section 57(2) of the Scotland Act 1998 in carrying out his functions in connection with criminal prosecution, and 12 November 1999 is the date upon which the decision in Starrs was issued. In all five cases, the proceedings in the Sheriff Court were concluded before this latter date. In the cases of Millar, Payne and Tracey, the whole relevant proceedings took place after 20 May 1999 - Payne pleading guilty, and Millar and Tracey being found guilty after trial, and all three being subsequently sentenced. Stewart had been found guilty after trial, before 20 May 1999, but sentence was imposed after that date. Marshall had been found guilty after trial, and sentenced, before 20 May 1999. Still prior to that date, he sought leave to appeal, and the final refusal of leave occurred after 20 May; but the submissions advanced on his behalf did not relate to that stage of proceedings, but to his conviction and sentence.

[3] No distinction need be drawn between the cases of Millar, Payne and Tracey; nothing was said to turn upon the difference between conviction after trial and conviction on a plea of guilty, and no significance was attached to the difference between solemn and summary procedure. On behalf of each of these three complainers, we were asked to pass the Bill, and quash both conviction and sentence, upon the basis that the carrying on of the prosecution before a temporary sheriff involved a breach of the complainers' entitlement to an independent and impartial tribunal, in terms of Article 6(1) of the Convention. Upon that same basis, Stewart asked that his sentence be quashed: having initially amended his Bill with a view to asking that conviction also should be quashed, counsel did not in the event advance any argument in relation to matters before 20 May 1999. It was thus only in the case of Marshall that events before that date were the subject of submissions; and these were based not upon the provisions of Article 6(1) of the Convention but upon the pre-existing common law of Scotland. It is convenient to deal first with the four cases which turn upon Article 6(1) of the Convention.

[4] In relation to these cases, the Solicitor General on behalf of the respondents conceded that there was a relevant "act" for the purposes of paragraph 1(d) of Schedule 6 to the Scotland Act 1998. It was accepted, upon the basis of the decision in Starrs, that the temporary sheriffs were not an "independent and impartial tribunal" within the meaning of Article 6(1). The Crown's position was, however, that each of these complainers had tacitly waived the right to an independent and impartial tribunal. And regardless of the question of waiver, the Crown's position was that, notwithstanding the decision in Starrs, the acts of each of the temporary sheriffs, in convicting and/or sentencing the complainers prior to the date of that decision were those of a de facto judge, and should be treated as valid. Moreover, it was not suggested on behalf of any of these complainers that waiver of the entitlement to an independent and impartial tribunal under Article 6(1) would be incompetent or otherwise impossible as a matter of law: the question was not whether that entitlement could be waived, but whether it had been in these cases. It is convenient to deal with the question of waiver first, before considering the contention that these decisions are valid as decisions of de facto judges. Upon both issues, it appeared to me that there was no substantial difference between the submissions advanced on behalf of the different complainers, and I have not found it necessary to deal with these submissions separately from one another.

[5] On behalf of the complainers, the submission was that the right under Article 6(1) had not been waived. Questions of possible waiver have of course arisen in a wide range of situations, and our attention was drawn to quite a number of authorities which illustrate the principles involved. In relation to Article 6(1) itself, the issue of waiver has arisen in a number of different ways. In Oberschlick v. Austria (1991) 19 E.H.R.R. 389, at page 420 it was observed that according to the court's case law "waiver of a right guaranteed by the Convention - in so far as it is permissible - must be established in an unequivocal manner." We were referred also to Pfeifer (1992) 14 EHRR 692. At paragraph 37, on page 712, the court referred to what had been said in Oberschlick, and went on to say "Moreover, the court agrees with the Commission that in the case of procedural rights a waiver, in order to be effective for Convention purposes, requires minimum guarantees commensurate to its importance." In that case, even express words of waiver had been held not to meet the requirements, having regard to the whole circumstances and in particular the applicant's lack of understanding of the position. Where there was no expression of waiver, as in the present cases, and the alleged waiver was thus "tacit", it was submitted that for the waiver to be "unequivocal" the intention to waive a right would have to be very clear, particularly if there was no "minimum guarantee" such as actual discussion between solicitor and client.

[6] In relation to tacit waiver, it was acknowledged by counsel for the complainers that this could occur where a legally represented applicant had failed to raise an objection to the tribunal when it was open to him to do so. But under reference to Hakansson and Sturesson v. Sweden (1990) 30 E.H.R.R. 1 and McGonnell v. The United Kingdom, 8 February 2000, application No. 28488/95, it was submitted that the question became one of whether the applicant ought to have taken the point, and that this depended on what was reasonable in the whole circumstances of the case. A failure to take the point might result from ignorance of the relevant facts. But it was apparent from the European jurisprudence that a failure to take the point would be regarded as reasonable, and not to be interpreted as tacit waiver, if the point was one upon which the law was at the time uncertain, or if the prospects of having an objection upheld were seen as having been weak or unrealistic.

[7] In relation to waiver, which had to be intentional and unequivocal, failure to take a point which was open in terms of the current understanding of the law might amount to deemed waiver. But the case of Bordeaux Vineries, referred to in McGonnell, would have had to be overturned if the potential objection in McGonnell were to be upheld, and in that situation waiver could not be implied. In Werner v. Austria (1998) 26 EHRR 310, the applicant had not expressly asked for a public hearing to be held, and the court had to consider whether he had thereby waived his right to have one, in terms of Article 6(1). It was established that there was never a public hearing, in proceedings of the kind in question; and the court went on to say that the applicant could not be blamed for not having made an application which had no prospects of success. There was thus no waiver - and there was a breach of the right in terms of the Article. Hakansson was distinguished, because in that case there was provision for a public hearing. It was submitted that the appropriate approach was further illustrated in H. v. Belgium (1987) 10 E.H.R.R. 339, where the court acknowledged, at paragraph 54, that the rule requiring a public hearing might in certain circumstances yield to the will of the person concerned: neither the letter nor the spirit of Article 6(1) prevented an avocat from "waiving, of his own free will and in an unequivocal manner" the entitlement to have his case heard in public. But the evidence adduced did not establish that H. intended to waive his right to a public hearing. "He cannot be blamed for not having demanded to exercise a right which was not afforded him by the practice of the Belgian bars, and that he had little prospect of securing." Again, in Campbell and Fell v. The United Kingdom (1985) 7 EHRR 165, in the somewhat similar context of an allegedly fatal failure to exhaust remedies, the court, at paragraph 61, had said that the existence of a remedy must be sufficiently certain before there could be an obligation to exhaust it. At the time of Mr. Campbell's application, there was nothing to indicate that certiorari was an available remedy - there was no binding decision on the point, and it was only upon a subsequent decision by the Court of Appeal that this position changed. Reference was also made to Bulut v. Austria (1997) 24 EHRR 84, and Gregory v. The United Kingdom (1998) 25 EHRR 577 as illustrating the appropriate approach, although the latter was not a waiver case.

[8] It was submitted that the European test of reasonableness excluded any strict application of the declaratory or retrospective view of decisions upon points of law: the decision in Starrs in November 1999 established the actual law as it had been from May 1999 onwards, but the complainers were not to be deemed to know the law in that respect, at the dates of their trials or sentences thereafter, so as to make it reasonable for them to have taken the point at that time. Reasonableness depended on actual knowledge and understanding.

[9] We were referred to a number of cases in which knowledge of facts was important in relation to the possibility of tacit waiver. However, we do not find it necessary to refer to these: in relation to the present Bills, the issues which arise as to knowledge or understanding relate to knowledge and understanding not of facts, but of the law.

[10] In Clancy v. Caird 2000 S.L.T. 546, where a question had been raised as to whether a temporary judge of the Court of Session, in civil proceedings, constituted an independent and impartial tribunal, it was held that taking all the factors into account there was no ground for objecting to the temporary judge either at common law or under the Convention. In addition, however, a plea of waiver was upheld. At page 554G, Lord Sutherland said "Even prior to the decision in Starrs it was well-known to the legal profession that the introduction of the Convention to the law of Scotland might well cause problems in relation to the appointment of temporary sheriffs and temporary judges." Noting various dates in relation to Starrs and Clancy, his Lordship said that it would be difficult for the pursuer successfully to say that he was wholly unaware of the possibility of a challenge to the temporary judge at the date of proof, and that although the precise details of the temporary judge's commission may not have been known to the pursuer, he was nevertheless well aware of the general nature of the appointment of temporary judges from the terms of the 1990 Act. At page 565C, Lord Coulsfield considered the question of whether the pursuer had tacitly but unequivocally waived his right to object to the temporary judge. He notes that the argument centred on the question whether, before the decision in Starrs, "there was anything to alert the pursuer and his advisers to the possibility of a successful challenge to the temporary judge." He goes on to say that in his opinion, it was widely appreciated in the legal profession, from the moment that it was known that the Convention would come into force, that a number of particular issues would be raised and that these included issues as to the status of temporary sheriffs and temporary judges. He concludes that the pursuer must be held to have passed from any objection to the disposal of the case by a temporary judge when he failed to raise any objection to the allocation of the temporary judge to hear the case or, at latest, to object at the start of the proof. The pursuer had waived his right to object.

[11] Counsel for the complainers did not take issue with what was said in Clancy. But it was pointed out that any knowledge which could be attributed to the legal profession, or individual members of it, must also be attributed to temporary sheriffs themselves, and to the Crown and the Procurator Fiscal Service. If it would have been "reasonable" for any of the complainers to object, it would also have been reasonable for the prosecution, and the court, as was normal where there was any doubt as to impartiality, to raise the point and thus ensure that it was disposed of unequivocally. Moreover, whatever the position may have been in Edinburgh as Clancy progressed towards proof, and whatever the basis for the broad comments made in Clancy as to awareness of the possibility of successful challenge, the Crown could not and did not, in the present cases, assert that any of the complainers' solicitors, in Elgin or Dundee, had any awareness of the position, far less such awareness as to make it reasonable for them to have taken the point at the time. Even if it were thought that in some sense they "ought" to have been aware of the possibility of successful challenge, it had not been raised by either the court or the prosecution, or by the solicitors with their clients. There was no sufficient basis, according to the criteria illustrated in the European jurisprudence, for seeing the complainers' agents as having intentionally and unequivocally abandoned their clients entitlement under Article 6(1). On any view, the law was at best in doubt, with no decision on the point and both courts and prosecution proceeding upon the basis that temporary sheriffs were tribunals complying with Article 6(1).

[12] If unequivocal tacit waiver could be read into the silence of the agents, it was submitted that such abandonment of their clients' rights, upon an important matter, without consulting the client, should not be seen as binding upon the client and constituting a waiver by him. Reference was made to McGowan v. Ritchie 1997 S.C.C.R. 322, and the general principles enunciated in Anderson v. H.M. Advocate 1996 SLT 155. In Locabail (U.K.) Limited v. Bayfield Properties Limited [2000] 1 All ER 65 at page 78, the Court of Appeal had said that if, before a hearing had begun, the judge was alerted to some matter which might, depending on the full facts, throw doubts on his fitness to sit, he should enquire into the full facts, so far as they were ascertainable, "in order to make disclosure in the light of them." The position must be the same if he was aware that he was not, or perhaps was not, an independent and impartial tribunal in terms of Article 6(1).

[13] In reply, the Solicitor General submitted that by failing to challenge the temporary sheriff's status as an independent and impartial tribunal, the complainers had passed from their right to take the point, and waived their entitlement in terms of the Article. He did not dispute the need for "unequivocal" waiver, and indeed referred to Locabail at page 73, paragraph 15, where the court said that it was clear "that any waiver must be clear and unequivocal, and made with full knowledge of all the facts relevant to the decision whether to waive or not." In terms of the European jurisprudence, he acknowledged that the matter was one of all the circumstances and of reasonableness. Most of what had been said on behalf of the complainers was common ground. Nonetheless, the entitlement to an independent and impartial tribunal under Article 6(1) was no more absolute in criminal than in civil matters, as had been acknowledged by the court in Deweer v. Belgium (1980) 2 EHRR 439, at paragraph 49 on page 460. As was there pointed out waiver of the "right to a court" is frequently encountered in criminal matters, in the shape, inter alia, of fines paid by way of composition. Such a waiver has undeniable advantages for the individual concerned as well as for the administration of justice, and does not in principle offend against the Convention. In relation to temporary sheriffs, what had been said in Clancy was entirely sound, and against the history of the use of temporary sheriffs over many years, and the absence of any suggestion of actual lack of impartiality, waiver of the entitlement under Article 6(1) would be understandable rather than surprising. The mere fact that waiver was tacit did not mean that it was anything other than unequivocal. As Hakansson showed it was indeed a matter of drawing reasonable inferences form the whole circumstances. Failure to take a plea in bar, on a point available at common law, would constitute abandonment of the right to take the point, because one was assumed to know the common law. In the present context, the complainers and their agents were not working in the context of settled law, or a general understanding. They must be assumed to know of the passing of the Scotland Act 1998, and the consequential entitlement under Article 6(1) of the Convention in relation to the acts of the prosecution. That was a wholly new situation, and to adopt language that had been used in Clancy, must in itself be taken to have "alerted" any solicitor to the new possibility that a tribunal might be challenged as not independent and impartial. While the Solicitor General was not in a position to assert what the actual state of knowledge of any of the complainers' solicitors was, they had this degree of imputed knowledge of the new legal provisions and possibilities. It was submitted that this knowledge was enough for them either to take the point, or to be regarded as having waived the entitlement if they did not take the point. While the decision in Starrs came later, it settled what the law had been at all the relevant dates.

[14] The Solicitor General submitted that a comparison could be drawn with Dirom v. Howdle 1995 S.C.C.R. 368, where a complainer had pled guilty without taking a point in her favour which was determined in a subsequent case. That subsequent decision was simply a decision as to the meaning and effect of a statutory provision which was known to apply, and the circumstances were held not to justify passing the Bill. It was accepted that it was for the Crown to show that there had been waiver; but even upon the hypothesis that the complainers' agents actually knew little or nothing, their deemed knowledge that the law had been changed by the Scotland Act and the introduction of Article 6 left them with the duty of interpreting and assessing the new legal position, or deciding to proceed without invoking it. If they failed to object to the temporary sheriff in those circumstances, their abandonment of the Article 6(1) right was indeed unequivocal. As for Anderson v. H.M. Advocate, the court had acknowledged at page 163L that the client's right was to representation in such a way that his defence would be presented to the court, in order that he might receive a fair trial on the charge which had been brought against him. But while that case showed that the conduct of the defence might be a ground of appeal, it made it very plain that the circumstances in which it would do so must be defined narrowly. The question of whether to object to a temporary sheriff was one which lay within the general authority of an agent, and Anderson was not in point for present purposes.

[15] Before considering whether there was any waiver in the present cases, I think that one can deal with the Anderson point quite briefly. The situations in which Anderson may be relied upon cannot be categorised. It may be that if an agent had knowledge of actual personal bias or corruption on the part of a judge, and neither took the point nor drew it to his client's attention, he might be seen as having gone beyond the scope of his ordinary professional discretion. But in the absence of risks of that order, and even if an agent was aware of the possibility of challenge on the basis upheld in Starrs, it would in my opinion be a matter within his professional discretion, to decide whether it would be in his client's interest to embark upon that issue in the case in hand. In the absence of any specialties, I am quite satisfied that he could properly decide that the point was not worth taking.

[16] The parties were not really at issue as to the general tests to be applied, in considering whether a right has been waived. The dispute is rather as to whether and how those tests are to be applied in the circumstances of the present cases. Where there has been an apparently explicit waiver, the primary question of whether it was "unequivocal" will usually be relatively straightforward. But even where an express waiver is on the face of it unequivocal, it may be necessary to scrutinise the context, in order to determine matters of understanding and intention, and the overall reasonableness of treating what has been said as an abandonment of rights. When nothing has been said, and tacit waiver is alleged, it is difficult to see how the silence in itself, without regard to context, could ever constitute or even imply waiver: everything will depend upon what can reasonably be inferred from background and context.

[17] A crucial element in the context, and in my opinion a useful starting point, is the fact that the alleged waiver does not arise (as it might in many contractual or other situations) out of the blue. According to very familiar Scottish procedure, certain types of point must be timeously taken, by a plea in bar of trial. If such a point is not thus timeously taken, then speaking generally it will be too late to take it. This can be expressed in various ways. Using the language adopted by the Solicitor General, one may speak of an accused having passed from his right to take the point. One may speak of abandonment, or of waiver. But however the matter is expressed, if an accused or his agent does nothing when the appropriate time comes for lodging a plea in bar of trial, the right will be lost unless there is something in the circumstances which shows that that was not the intention, or that the silence resulted from some ignorance or misapprehension which can be regarded as a reasonable explanation for the point not being taken. In the present case, it is not suggested that the complainers' agents were unaware of the general need to take any point as to the vires of the court by means of a plea in bar of trial at the appropriate time. And it is of course clear that the point was not taken. While the onus lies upon the Crown of establishing that the complainers had passed from, or abandoned or waived the Convention right in question, I consider it important to put matters in context, and to proceed upon the basis that the acknowledged failure to take a plea in bar of trial is to be construed as a waiver of all rights which in general require to be asserted by such a plea, unless it appears that there is some ignorance or misapprehension of the type which I have mentioned. This is not a situation in which one can say that there is apparently no waiver unless or until something positive is said or done indicating waiver. The situation is that there is apparently waiver, on the basis that no plea in bar of trial was taken, unless it appears that the complainers' agents' silence resulted from such ignorance or misapprehension.

[18] Knowledge is clearly at the heart of the matter. In the absence of knowledge of some material matter, even an expressed intention to waive a right may readily be recognised as insufficient to constitute a binding abandonment of rights. If the material matter is a matter of fact, and it is asserted that the accused and his agents were ignorant of that fact, issues may arise as to whether that assertion is to be accepted or not. It may be possible, by inference, to say that they "must" have known the material fact. But if such an inference is not justified, and all that one can say is perhaps that, in some sense, the fact "ought" to have been known to the accused or his agents, it may well be that actual ignorance will suffice to exclude intentional abandonment of rights.

[19] I make these observations in relation to ignorance of facts merely to put the present problem in context. We are not here concerned with ignorance of facts, and while comparisons can no doubt be made with cases where there was ignorance or misapprehension as to material facts, I have not found such comparisons useful. Ignorance or misapprehension as to the law raises very different questions.

[20] It is trite, and not disputed by the complainers, that in general one will not be concerned with the question of whether a particular person, accused or agent, actually knew what the law was upon any given matter. In general, regardless of his knowledge or ignorance or misapprehensions as to the law, knowledge of the law will be imputed to him. Such imputed knowledge may accordingly constitute a crucial element in a finding that he has abandoned or waived some right. Thus, in general, a party who has failed to take a plea in bar of trial at the appropriate time on, say, the ground of oppression would be held to have abandoned or waived any claim of oppression, and would not subsequently be allowed to assert such a claim on the basis that he had been ignorant, or under some misapprehension, as to the law in relation to oppression. Similarly, since the decision in Starrs, it seems to me that a party would be deemed to know the law as decided in that case, and could not successfully argue that a failure to take an appropriate plea in bar of trial at the appropriate time, based on that decision, was attributable to any actual ignorance or misapprehension as to the effect of that decision.

[21] It is also trite, and not disputed by the complainers, that "any authoritative decision of the courts stating what is the law operates retrospectively. The decision does not only state what the law is from the date of the decision, it states what it has always been. This is the position even if in setting out the law the court overrules an earlier decision which took a totally different view of the law." (R. v. Governor of Brockhill Prison, ex parte Evans (No. 2) [1999] QB 1043, Lord Woolf M.R. at page 1050). The decision in Starrs, in November 1999, determines what the law was from 20 May onwards.

[22] If one were to combine this general retrospective principle with the other general principle, that a person is deemed to know the law, the result might be that a person would be deemed to know what the law was upon some particular point at a date when no court had yet held that to be the law, and when indeed the law was generally or universally thought to be quite otherwise. The injustice and absurdity of extending a person's deemed knowledge of the law to such a limit is obvious; and there are no doubt various ways in which this result can be avoided, in varying contexts. The idea that in some circumstances a legal decision can sensibly be regarded as "changing" the law for certain purposes, notwithstanding its primary nature as a statement of the law as it has always been, is one aid to a reasonable application of both principles. And in relation to waiver, and in particular waiver of rights under Article 6(1), that idea is indeed taken into account, as is clear from cases such as Campbell and Fell and McGonnell. In judging whether there has been waiver of a right, it may be seen as "reasonable" for a party to have proceeded upon the law as it appeared to be at the relevant time, notwithstanding a subsequent decision that it was otherwise.

[23] But what is meant by phrases such as "the law as it appeared to be", and what is one to take as the law which was "changed" by some subsequent decision? The position is perhaps relatively straightforward in situations where there is a prior decision on the same point, so that any assertion of the Convention right would necessarily involve having that prior decision overturned. McGonnell and Bordeaux Vineries illustrate that type of situation, and it is perhaps easily understandable that in such a context, any later "overturning" decision can be regarded as "changing" the law at least in the sense that it will be regarded as reasonable, in the absence of other considerations, for parties at previous dates to have proceeded as if the law was as previously stated. And while blameworthiness is not really the test, the cases cited to us, such as Werner, Campbell and Fell and H. v. Belgium plainly proceed upon the realistic principle that a person cannot be blamed for not having demanded to exercise a right which was not afforded him by current practice or where over a tract of time there has been nothing to indicate the availability of a remedy which was subsequently held to be appropriate. The principle is clearly a broad one. The European jurisprudence has recognised that even if taking a particular point would not require the actual overturning of a previous decision, the prospects of taking a point successfully might, in the context of some general understanding of law and practice, appear very poor, so that a person would not be "blamed" for failing to take it. One must therefore take into account not merely what clients or their agents thought the law to be, but also the practical assessments and decision which they might reasonably make. In the context of the present case, the actual decision in Starrs suggests that the point would in fact have had a good prospect of success if taken. But the question as to what would be reasonable must always depend not merely upon what was decided subsequently, but upon whether there was such previous decided or settled law that an accused or his agent could reasonably assume it actually to be the law, and reasonably rely upon that assumption, consciously or otherwise, when remaining silent at the time at which in general terms the point should have been taken.

[24] I am not persuaded that the analogy drawn by counsel for the respondents between the present cases and cases such as McGonnell and Campbell and Fell is sound. In these cases, it seems to me that there was what one may call a settled view of the law, which one would positively expect parties to rely upon. That settled view would mean that successful challenge would seem unlikely. Subsequent decisions might show that that settled view was a misapprehension. But it was a generally shared and understandable misapprehension, making the assumption that it was a correct view of the law reasonable. The present cases appear to me to lack that settled and shared view of what the law was at the crucial moment. I am not persuaded that any misapprehension on the part of the complainers or their agents can be attributed to some established view as to what the law was.

[25] The situation is not one where reliance was placed upon any court decision that temporary sheriffs met the requirements of Article 6(1). There had been no such decision, upon which persons such as the complainers or their agents might reasonably rely. Nor in my opinion is there any basis for saying that there was any settled law or practice which would justify agents in assuming that the point was bad or had poor prospects. The starting point for saying that what turned out to be a misapprehension as to the law was reasonable must be some kind of established understanding or practice. Before the Scotland Act 1998 came into force, the position of temporary sheriffs could perhaps be seen as settled and established, so that even if some objection to their competency was theoretically sound, those who had failed over the years to take the point might argue that it was reasonable for them to assume that no sound objection was available. I would, however, wish to reserve my opinion on that point. But as the agents in the present cases must in my opinion be deemed to have known, the enactment of the Scotland Act 1998 had radically altered the rights of accused persons, by providing in section 57(2) that the Lord Advocate had no power to do any act (subject to the terms of subsection (3)) so far as it was incompatible with any of the Convention rights. They must be deemed in my opinion to have known that the rights conferred by Article 6(1) were such Convention rights, and that there were thus entirely new provisions giving accused persons a right to an independent and impartial tribunal. I can see no basis for holding that they were reasonably entitled to assume that such new provisions were somehow of no significance and that they could somehow carry on assuming that the previous and perhaps settled position was unaffected. They must be deemed, in my opinion, to know that there was a new legal landscape, and that there were new, unsettled, issues to be resolved. I do not suggest that they must be deemed to know just how those issues would be resolved. But the knowledge that there were such new issues in my view brought to an end the pre-existing situation in which there was perhaps some basis for making assumptions, or labouring under misapprehensions. Once the Scotland Act came into force, and when it was newly in force, I cannot identify any basis upon which anyone could reasonably say how or why they took a view of its effects which only the decision in Starrs revealed to be a misapprehension. As Schiemann L.J. observed, in a rather different context, in Percy v. Hall [1997] QB 924, society cannot function if all legislation has first to be tested in court for legality. Similarly, society could not function if individual parties or their solicitors were entitled to assume that legislation had a particular effect, or no effect, and could claim that the first interpretation of the new law somehow changed that new law. The context of new law seems to me quite different from that in which the courts have been willing to see subsequent decisions as effecting a "change" to what could reasonably be assumed or relied upon as the then current position. Without deeming the complainers or the solicitors to know the law as it was determined in Starrs, they must be deemed to have known that the statute had changed the law, and that new rights were in issue.

[26] This deemed knowledge must also be attributed to temporary sheriffs and the prosecution. But I see no obligation upon them to inform defence agents of these known changes in the law, as if they were possibly unknown facts. And while the full legal consequences of the new legislation remained unknown for the complainers' agents, that was equally true for everyone, and merely confirms that there was no settled view of what the law now was.

[27] I acknowledge that in Clancy, some reliance was placed not merely on deemed knowledge of the legislation, but on matters which were said to be well-known to, or widely appreciated in, the legal profession. I do not think that counsel for the present complainers really disputed these general statements. The point which they made was rather that even if such knowledge was general, it could not be assumed to be universal or to contradict what had been said, that the particular agents were not party to this general knowledge. But in my opinion, the existence or absence of any such more specific knowledge or belief, as to whether proceedings before a temporary sheriff were thought by others to be open to challenge, is of no real importance.

[28] What is important, in my opinion, is that the deemed knowledge of the new legislation excludes any contention that the law could be assumed to be as it previously was. The agent knew what the new law was. He could point to no previous decisions or practice, in the context of that new law, which would justify any assumptions as to what the legal consequences of that new law might be. He was thus, in my opinion, faced with a decision which is quite normal when there is new legislation. He was not lacking in anything which I would call "knowledge". What was required, or missing, was not further information, but an ordinary lawyer's decision as to whether the new law created a right, or the possibility that there was a right, which in the clients' interests should be asserted and pressed to decision. In such circumstances, the analogy is not with McGonnell or Campbell and Fell. The analogy, in my view, is with Dirom v. Howdle. In my opinion, there was nothing to prevent the agents taking the point which was in fact taken in Starrs. There was nothing which made it "reasonable" to refrain from taking the point, other than waiver: a decision that it would not be in the clients' interest to take any point in relation to Article 6(1) which the new legislation might make arguable. Simply upon the basis of deemed knowledge of the law, I consider that such a decision was implicit in the agents' silence when these cases came before the temporary sheriffs, and that there was tacit waiver.

[29] I would add that I intend no criticism at all of what the agents did. It would of course have been possible for them to embark upon the substantial legal exercise of working out and presenting arguments of the type that were presented in Starrs. But there is no obligation upon an agent to raise points and have them determined, in the general interest of jurisprudence or the profession or the public. It would also have been possible to take the point, and simply have the case transferred to a permanent sheriff. Unless he saw some balance of advantage or disadvantage to his client, depending on whether he challenged the proceedings before the temporary sheriff, each of these agents was, in my opinion, well entitled, in the ordinary exercise of his professional discretion, and without considering the new legislation in any detail, simply to carry on and have the case disposed of without invoking any right that there might be under the new law. The fact that the entitlement to an independent and impartial tribunal under Article 6(1) can be waived, and is not regarded as an absolute requirement of law, in my view demonstrates that the matter is one of circumstances. The point may be seen as simply not worth taking, however sound it might be. Waiver may be the correct, undramatic course in the clients' interests. And in the context of a new untested legal provision, the absence of any evident advantage in challenging the prosecution would point to waiver as the right, simple course.

[30] In the whole circumstances, I would therefore refuse the Bill of Advocation for David Millar, and the Bills of Suspension for Paul Stewart, Kerry Payne and Joseph Tracey, upon the basis that their entitlement in terms of Article 6(1) has been waived.

[31] I turn to the Crown's contention that convictions and sentences imposed by temporary sheriffs, prior to Starrs, should be treated as valid on the basis that they are the decisions of a de facto judge. That is a question which only arises if I am wrong in holding that the complainers' had waived their entitlement to an independent and impartial tribunal under Article 6(1). It proceeds upon the hypothesis that the acts of the prosecution were acts incompatible with the complainers' Convention rights under Article 6(1), and acts which the Lord Advocate had no power to make in terms of section 57(2) of the Scotland Act 1998. I did not understand the Crown to submit that the relevant acts of the Lord Advocate and the prosecution were other than ultra vires.

[32] In Gibbs v. Ruxton 2000 J.C. 258, one of the matters in issue was whether in the relevant circumstances the Secretary of State had acted ultra vires in appointing temporary sheriffs, so that their actual appointments were invalid. It was held that the Secretary of State had not acted ultra vires in making these appointments, and it was not suggested to us on behalf of any party that the appointment of any of the temporary sheriffs with whom we are concerned was invalid. In Gibbs, an argument was advanced on behalf of the Crown to the effect that even if the appointment of the temporary sheriff had been invalid, she should be regarded as having been a de facto judge, and the law should treat her acts as valid. In view of the decision reached by the court on the main argument, it was unnecessary to deal with that submission and all of the judges reserved their opinions upon the matter. In the present Bills, the question does not arise in the same way, since we are concerned not with de facto judges but with de jure judges. But the Solicitor General submitted that the principle upon which the acts of someone who was merely a judge de facto and not de jure might be regarded as valid applied with even greater force in relation to particular acts of a de jure judge, in relation to which the defect was not a fundamental flaw in appointment, but a more specific failure to meet the requirements of Article 6(1). While a decision on the point is not strictly necessary if I am right in relation to waiver, I have thought it right, having regard to the submissions which we heard, to deal with them rather than reserve my opinion.

[33] As I understood him, the Solicitor General accepted (as counsel for the respondents emphasised) that the complainers' challenge was to the legality of the prosecution, rather than the legality of what the court had done. But he submitted that although there was no challenge to the validity of the temporary sheriffs' appointment, or criticism of their conduct, the basis of the complainers' challenge to the acts of the prosecution was to be found in the court's lack of independence and impartiality and more specifically in the terms of their appointment, and the rules regulating their tenure. It was these that produced a breach of the requirements of Article 6(1). But for these defects in the court, there would not have been what the Solicitor General described as a "feed-back" into breach of Article 6(1) by the Lord Advocate. The fundamental issue therefore related to these defects in the court, and just as a fundamental invalidity in the appointment of a judge could be overcome by treating him as de facto a judge, making valid decisions, so too one could overcome the defects in a temporary sheriff's appointment and tenure; and by validating what he had done de facto, the acts of the Lord Advocate, as I understood the argument, would consequentially not be in breach of Article 6(1).

[34] The proposition that the acts of merely de facto judges may be treated as valid has an ancestry in both Roman and common law. As in Gibbs, reliance was placed upon D.1.14.3, Ulpian 38 ad Sabinum. No detailed consideration was given to the passage, and I am content to proceed upon the basis indicated by the Lord Justice General in Gibbs at page 262E, that it suggests that Ulpian would have regarded the decrees of a slave appointed to be a praetor as valid, even though, of course, the actual appointment of the slave would itself have been invalid. Again as in Gibbs, reference was made to Wade and Forsyth, Administrative Law (7th edition) at pages 326 to 328; and on this occasion the Solicitor General drew our attention to some of the cases there cited. In particular, we were referred to Scadding v. Lorant (1851) 3 H.L.C. 418, Lord Truro L.C. at 447; State v. Carroll (1871) 38 Conn. 449, 9 Am. 409; In re Aldridge (1893) 15 N.Z.L.R. 361; and Adams v. Adams [1971] P. 188; Sir Jocelyn Simon at pages 211F to 212F. In Wade and Forsyth, the context is described as being that "where there is some unknown flaw in the appointment or authority of some officer or judge", and it is said that "the logic of annulling all his acts has to yield to the desirability of upholding them where he has acted in the office under a general supposition of his competence to do so." That formulation appears to accord with what was said by Lord Truro in Scadding, which Wade and Forsyth quote. The concept of an "unknown flaw" perhaps has an echo in Wade and Forsyth's observation that the decisions indicate that the doctrine will apply "only where the office-holder has 'colourable authority' or some colour of title to the appointment,", and Lord Ellenborough C.J's observation, in R. v. Bedford Level Corporation (1805) 56 East 356 at 368, that "An officer de facto is one who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law." Adams v. Adams is an example of a case where such colourable authority was absent: the act of a Rhodesian judge was held to be invalid, because it was notorious in both Rhodesia and England that the Rhodesian regime at the time had been declared unlawful by Act of Parliament and Order in Council. Wade and Forsyth go on to say that the basis of the de facto principle is that the public must be able to rely on the acts of judges and officers "so long as there is no reason to suppose that they are not validly appointed." The Solicitor General submitted that prior to the decision in Starrs, there was no reason to suppose that temporary sheriffs were not acting validly in imposing convictions or sentences, and that we should hold in the public interest that upon the basis of the "de facto principle" such convictions and sentences should be held to be valid, and not open to challenge. He relied in particular upon the discussion of authorities which is to be found in the Opinion of Butler C.J. in State v. Carroll at pages 421 to 422, and the definition given at page 427, to the effect that an officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interests of the public and third persons, where the duties of the office were exercised in certain described situations. These situations include those where the duties were exercised "under color of a known and valid appointment or election, but where the officer had failed to conform to some precedent requirement or condition, as to take an oath, give a bond, or the like.", and "under color of an election or appointment by or pursuant to a public unconstitutional law, be

[35] In Aldridge, Prendergast C.J. observed that if the judge in question had had no appointment whatever, "but his exercise of the duties of a Judge of the Court had been such as to beget the reputation of having been lawfully appointed" that would be enough, and his position could not be worse by reason of having received a void appointment. And at page 381, Ward J. cites, with approval, a dictum that "the colour of right which constitutes an officer de facto may consist, inter alia, in the performance of official duties, with the acquiescence of the public, for such time as to raise the presumption of colourable right."

[36] In applying the doctrine to the present cases, the Solicitor General took as his starting point the fact that the rights conferred by Article 6(1) are not "absolutes". A party could decide that they were unimportant, and waive them, and similarly any importance they might have could be transcended by the public interest in justice and certainty. In the absence of any actual bias, the breach could be seen as minor. The complainer's entitlement existed, but should be set aside, to achieve overall justice. That was why the doctrine existed, and it should be applied. The decisions were not "unsafe", and nothing could be said to have "gone wrong". The fact of a breach of Article 6 carried no such implication: Saunders v. The United Kingdom (1996) 23 E.H.R.R. 313, paragraph 86 at page 342. Without suggesting that any floodgates would be opened by a decision against the Crown, or that that would be an appropriate consideration, it was submitted that very large numbers of summary trials had been heard by temporary sheriffs before the decision in Starrs, over the years and indeed after 20 May 1999. The public understanding was that they were valid judges for these purposes, and so the doctrine could be applied.

[37] On behalf of the respondents it was submitted that the de facto doctrine had no place in the law of Scotland. Reference was made to Brown v. Neilson [1906] 5 Adam 149; but the point was not argued in that case, and having regard to the doctrine's recognition in both Roman law and common law systems, I am satisfied that it should be seen as having a place in Scots law. But even if the doctrine can apply in Scotland, the contention for the complainers was short and simple. The doctrine validating the acts of de facto judges equiparated their invalid acts with the acts of de jure judges. Reference was made to Norton v. Shelby County, as showing the principles and limits of such a validation. But the present cases are not concerned with any such problem. It is not said that there is any inherent defect in the court. Whether the temporary sheriff is considered to be a judge de jure or de facto, he can validly convict or sentence, as the possibility of waiver shows. The doctrine of the de facto judge was concerned with people who were not de jure judges. The submission for the Crown that it could be transposed to the situation where a de jure judge acted ultra vires or incompetently, simply because he was generally known to be a de jure judge and assumed to have power to do whatever he did, was unsound. But even if, by applying some analogous doctrine to such acts by de jure judges, the law could confer validity on otherwise invalid acts, it would do so only by making those acts unchallengeable: the factual history which made them legally invalid would remain unaltered. A temporary sheriff simply did not constitute an independent and impartial tribunal. That remained true, whatever legal doctrines might be invoked. In the present cases, the complainers were relying upon that legal datum, in order to show that the Lord Advocate had done an act incompatible with the complainers' entitlement to a hearing by an independent and impartial tribunal. It was the continuing prosecution, not the court, that was illegal. And it was as a consequence of that illegality, not because of any inherent illegality in the court or its acts, that the convictions and sentences should be quashed.

[38] In my opinion these submissions are sound. The fact that the illegality of the prosecution flows from the tribunal not being independent and impartial does not mean that the tribunal is itself tainted with any illegality. The situation is quite different from that which obtains when there is a fundamental nullity, and a want of power which cannot be cured by waiver. The issue is essentially one which turns upon section 57(2) of the Scotland Act 1998, and what is being challenged is the act of the Lord Advocate. If the tribunal is not an independent and impartial one, as is conceded, the Lord Advocate is acting ultra vires in seeking conviction and sentence by that tribunal. It is because he is acting ultra vires in that way that the consequences of his ultra vires act - conviction and sentence by the court - must be quashed. That would be the position, in my opinion, whatever the basis upon which the Lord Advocate was held to be acting ultra vires. If Article 6(1) had direct application as a part of Scots law, and a conviction or sentence were to be challenged on the basis that what the court had done was ultra vires, other questions might arise, and it may be that the de facto judge doctrine, or something analogous to it, could provide a basis for argument. But as matters stand at present, I am not persuaded that the challenge to the Lord Advocate's act can be met by a doctrine which does not apply to it. If this had been the determinative issue in these cases, and if the complainers' rights had not been waived, I would have passed the Bill.

[39] I should mention briefly one further argument which was advanced on behalf of the complainers in these four Bills, which was founded upon this same proposition, that in terms of section 57(2) of the 1998 Act, the Lord Advocate was acting ultra vires in continuing the prosecution. Viewing the matter as one of vires, it was submitted that waiver could not overcome his lack of vires. But in my opinion this argument is misconceived. Section 57(2) means that the Lord Advocate has no power to do any act so far as that act is incompatible with "any of the Convention rights". In terms of section 126(1), that expression has the same meaning as in the Human Rights Act 1998. In terms of section 1(1) of that Act, "the Convention rights" means the rights and fundamental freedoms set out in, inter alia, Article 6. But where such a right can competently be waived, and in particular circumstances has been waived, it has in my opinion ceased to be a right of any kind, in those circumstances. I do not think that it was actually suggested by counsel for the complainers that once such a Convention right had been waived, so that it was no longer a right of the complainer in the circumstances, the Lord Advocate was nonetheless still obliged, in terms of section 57(2), not to do an act which would have been incompatible with that right if it had still existed, and was incompatible only with the description of the right which had been waived. At all events, I would reject any such contention. I would accept that speaking generally, waiver cannot render intra vires an act which is inherently ultra vires. But the whole question of the Lord Advocate's powers is related to the complainers' rights under the Convention, and I am unable to see him as debarred from acting incompatibly with rights which in the circumstances they do not have.

[40] There remains finally the Bill taken by David Marshall, relating to events before 20 May 1999. The submission was simply that Scots law has always required that a judge be impartial and independent. Only during the Crown submissions made in Starrs had the public acquired a full picture of the terms upon which temporary sheriffs held office. There was therefore at all times prior to that decision, a lack of factual knowledge as to temporary sheriffs, and correspondingly an insufficient basis for taking the point that temporary sheriffs were not independent and impartial. In any event, it was submitted that the want of independence and impartiality was such as to render all criminal proceedings in front of temporary sheriffs null and void. It was true that the available case law related to specific facts concerning specific judges. But the fact that the defect in the present case was a general one did not make it less fatal. While it had not been evident until additional information was given in Starrs, criminal proceedings conducted by temporary sheriffs had always been fundamentally flawed for this reason.

[41] I am not persuaded that there is any substance in these propositions. It is true that in Starrs, information as to practice was put before the court. But the finding that temporary sheriffs did not constitute an independent and impartial tribunal was based upon the statutory provisions, which had been known since they were enacted. The general defect in independence and impartiality which was identified in Starrs and exists in the present cases does not result in fundamental nullity as the law has stood since 20 May 1999. In so far as there was any such right prior to that date, it was only in certain categories of specific involvement that it would result in what could be called "automatic" disqualification or nullity. It is not necessary to consider the authorities which deal with that matter: no basis was suggested for holding that the statutory provisions governing the appointment and tenure of temporary sheriffs produced an automatic nullity, even in relation to criminal trials.

[42] In my opinion, the law in relation to such matters before 20 May 1999 had not only been in place for many years, but must be deemed to have been known to the complainers' agents. Any challenge would have had to be by plea in bar of trial. No such plea was taken, and the challenge, even if well founded, comes too late. I would refuse this Bill.

[1] I have had the opportunity of reading the Opinion of your Lordship in the chair with which I am in complete agreement. However, I would just like to add some observations particularly in relation to the issue of waiver, which initially caused me some difficulty.

[2] At first blush it seemed to me that for the principle of waiver to operate in relation to the abandonment of a right the person so effecting the waiver must know in fact of the existence of the right and the opportunity to exercise it. This, of course, immediately raises an issue where there was no actual knowledge in fact of the existence of the right, yet, viewed objectively, the person ought to have known of its existence. This position it seems to me may apply generally in relation to waiver in the context of the law of contract, but the material distinction in the present case, to my mind, is that what is raised is a potential plea in bar of trial. That is to say, a positive step available to be taken by an accused person disputing the competence or jurisdiction of the court. The opportunity to take such a plea obviously exists in any criminal case at every level and the question thus to be posed in the present case is the effect of the failure, in each relevant case, of the accused to take the plea at the appropriate time

[3] I am persuaded that that failure amounted to an abandonment or waiver of the opportunity and therefore the right to take the plea. I reach this conclusion primarily because all the relevant factors were available for consideration by each accused through his advisers. The law had been changed by the Scotland Act which introduced the Convention into the law of Scotland in the context of acts of the Executive and particularly that of the Lord Advocate. There was therefore no longer settled law. It does not seem to me to be necessary that a person placed in that position should know what the effect of these changes might be. It is sufficient that the opportunity to test the matter is available in the changed situation. If the European jurisprudence approach to the issue of reasonableness is applied to this situation, the question then to be posed is whether it was reasonable or not, against the background I have set out, for the accused in each case not to take the plea simply because its success or failure could not be conclusively determined in advance. That question must, in my mind, be answered in the negative. There was nothing to prevent the plea being taken in each case. It seems to me to be a wholly unreasonable assumption for it to be assumed that the changes were of no significance. That seems to me to be determinative of the matter.

[4] Finally, upon the issue of the so-called "de facto" doctrine such, if it is part of the law of Scotland at all and it may well be, can in my opinion only apply to the notion of the competence of a court, whether by constitution or performance. It cannot apply to the position of a party being before that court who has been shown to be acting ultra vires. The illegal act against the background of the Convention was the bringing and continuing with the prosecution by the Lord Advocate. I therefore agree with your Lordship in the chair that if waiver had not applied the Bills in question would have been required to be passed in the appropriate cases.

[1] I have had the opportunity of reading the Opinion of your Lordship in the chair and I concur with it. There is nothing further that I wish to add.