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PROCURATOR FISCAL, KIRKCALDY v. CHRISTOPHER JOHN KELLY [2000] ScotHC 85 (18th August, 2000)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Milligan

Lord Cameron of Lochbroom

Lord Allanbridge

Appeal No: 766/00

OPINION OF THE COURT

delivered by LORD MILLIGAN

DEVOLUTION ISSUE REFERENCE

under the Scotland Act 1998 to the High Court of Justiciary from the Justices of the District Court of Kirkcaldy at Kirkcaldy

PROCURATOR FISCAL, Kirkcaldy

against

CHRISTOPHER JOHN KELLY

_______

Crown Agent

McKennas, Glenrothes

18 August 2000

[1] This is a reference under section 98 and Schedule 6 of the Scotland Act 1998. It raises questions at the instigation of the defence as to whether Kirkcaldy District Court, as constituted, is an independent and impartial tribunal in terms of Article 6(1) of the European Convention on Human Rights. It raises in particular questions as to the part played by the clerk of the court in the running of the court. The reference is in the following terms,

"...the material basis in fact and law which gives rise to this reference is as follows:

Procedural History

1 The Procurator Fiscal at Kirkcaldy commenced proceedings against
said CHRISTOPHER KELLY on a complaint libelling a charge of theft on 21st February, 1999 and a charge of breach of the peace on 25th March, 1999. Said CHRISTOPHER KELLY appeared personally and pled not guilty on 15th July, 1999. He was ordained to appear at an intermediate diet and trial diet to call on 7th October, 1999 and 25th October, 1999 respectively. On 7th October, 1999 said CHRISTOPHER KELLY failed to appear and a warrant was granted by the Court for his apprehension. He appeared from custody on 22nd November, 1999. On that date the Procurator Fiscal at Kirkcaldy served a complaint libelling a contravention of Section 150(8) of the Criminal Procedure (Scotland) Act 1995 against him. On 22nd November, 1999 said CHRISTOPHER KELLY raised a devolution issue which alleged that the District Court in Kirkcaldy was not an independent and impartial tribunal in terms of Article 6(1) of the European Convention on Human Rights. Leave was sought in terms of Rule 40.5(1) of the Act of Adjournal (Devolution Issues Rules) 1999 SI 1346 and granted by the Court in respect of both complaints.

2. Both said complaints were adjourned by the Court in terms of Section
145 of the Criminal Procedure (Scotland) Act 1995 to 13th December, 1999. On 13th December, 1999 the Justice referred the devolution issue raised by said CHRISTOPHER KELLY to the High Court of Justiciary in terms of paragraph 9 of Schedule 6 to the Scotland Act 1998. The Justice ordered the solicitor for said CHRISTOPHER KELLY to draft said reference and adjourned the case in terms of Section 145 to 6th January, 2000. On 6th January, 2000 the Court further adjourned the case in terms of Section 145 to 27th January, 2000. On 27th January, 2000 the solicitor for the said CHRISTOPHER KELLY lodged a draft reference with the Court. The Court thereafter further adjourned the case to 17th February, 2000 to allow the Procurator Fiscal to lodge adjustments to the draft reference. On 17th February, 2000 the Court further adjourned the case to 2nd March 2000 for adjustments to be lodged to said reference by the Procurator Fiscal at Kirkcaldy. On 2nd March, 2000 a draft reference was lodged by the Procurator Fiscal at Kirkcaldy and the Court ordered that this be properly lodged as a proposed adjustment which was done on 3rd March, 2000. The Court allowed a 2 week period for further adjustments to be lodged and fixed a hearing on the proposed adjustments for 24th March, 2000. On 15th March, 2000 the solicitor for the said CHRISTOPHER KELLY lodged further adjustments. The hearing into the proposed adjustments to the draft references took place on 24th March, 2000.

LEGAL BACKGROUND

1. Section 57(2) of the Scotland Act 1998 states:-
'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 Convention rights are defined in Section 126(1) of the Scotland Act 1998 as having the same meaning as in the Human Rights Act 1998. In the Human Rights Act 1998 the Convention rights are defined in Section 1 and Schedule 1.

2. In terms of Section 44(1)(c) the Lord Advocate is a member of the Scottish Executive.

3. The Lord Advocate has no power to act incompatibly with the Convention Rights as set out in Section 1 of and Schedule 1 to the Human Rights Act 1998. Article 6 of the European Convention on Human Rights is one of the Convention Rights as set out in the Human Rights Act 1998. Article 6(1) states that:

'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. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.'

In terms of the opinion of the Appeal Court in Starrs and Chalmers v Ruxton 1999 SCCR 1052 the Lord Advocate has no power to proceed to trial against an accused person before a temporary sheriff since such a court is not independent and impartial.

4. The Procurator Fiscal at Kirkcaldy intends to move the District Court at Kirkcaldy to fix a further trial diet in respect of the complaints against said CHRISTOPHER KELLY and intends to proceed to trial against said CHRISTOPHER KELLY before the District Court in Kirkcaldy.

5. The Lord Advocate has issued an instruction that the Crown should present no argument to the effect that, when acting under summary procedure, a Procurator Fiscal does not act as his representative and hence does not act as the representative of a member of the Scottish Executive for the purposes of Section 57(2) of the Scotland Act 1998. For the purposes of this reference therefore the Procurator Fiscal at Kirkcaldy should be viewed as having no power to do any act which would be incompatible with the said CHRISTOPHER KELLY's Convention rights.

CONSTITUTION OF THE DISTRICT COURT AT KIRKCALDY

1. The District Court at Kirkcaldy is presided over by a Justice of the Peace who has no legal qualifications and who requires to determine both questions of fact and law.

2. The Justice of the Peace is advised by a Clerk of the District Court, who acts as legal assessor in the District Court, on matters of law, practice and procedure. The Clerk of the District Court is appointed in terms of Section 7 of the District Court (Scotland) Act 1975. The Clerk is not a member of the Court and does not share the responsibility of the Court for its decision. He is an official who is appointed and employed, on a full time or part time basis, by the local authority. He must be an Advocate or Solicitor. The Clerk does not offer judgement. The Clerk takes no part in deliberations on conviction or sentence. On sentencing he is only concerned to advise on the powers of the Court.

3. In terms of Section 23(2) of the District Courts (Scotland) Act 1975, except where otherwise provided, all fines imposed in a District Court shall accrue to the local authority concerned. The present position is that fines imposed in respect of common law offences and fines under the Civic Government (Scotland) Act 1982 are retained in full by Fife Council. Fines and fixed penalties for road traffic offences and for most statutory offences are remitted to the Consolidated Fund. In respect of these fines Fife Council retains a 10% handling charge. Fife Council are partly funded by the Scottish Executive.

4. Justices of the Peace are appointed in terms of Section 9 of the District Court (Scotland) Act 1975. Section 9(2) states:-

'Justices of the Peace for any commission area, other than Stipendiary Magistrates and ex officio Justices, shall be appointed by name on behalf and in the name of Her Majesty by instrument under the hand of the Secretary of State, and a Justice where appointed shall only be removed from office in like manner.'

In terms of Section 53(2) of the Scotland Act the functions of the Secretary of State as set out in Sections 9 and 15 of the District Courts (Scotland) Act 1975 are now exercisable by the Scottish Ministers so far as they are exercisable within devolved competence. Section 117 of the Scotland Act 1998 requires the reference to the Secretary of State in Sections 9 and 15 of the District Courts (Scotland) Act 1975 to be read as a reference to the Scottish Ministers.

5. Section 15 of the Districts Courts (Scotland) Act 1975 delineates in subsection (2) the situations in which the Scottish Ministers may direct that the name of a Justice of the Peace for any area shall be entered in the Supplemental list. Such an entry has the effect of removing a Justice of the Peace from his judicial duties.

POINTS OF LAW REFERRED

The Justices in the District Court of Kirkcaldy wish to refer the following points of law to the High Court of Justiciary for an opinion in terms of Schedule 6 of the Scotland Act 1998:-

1. Is the District Court, as constituted, an independent and impartial
tribunal in terms of Article 6(1) of the European Convention on Human Rights?

2. Is the Clerk of the District Court acting in a judicial capacity or performing a judicial role in the exercise of his function of providing advice to the Justice of the Peace?

3. Is the Clerk of the District Court in law part of the tribunal for the purposes of Article 6(1)?

4. Is the act of a Procurator Fiscal in calling a case for trial before the District Court as at present constituted an act which is compatible with the Convention right of the accused in terms of Article 6(1)?

5. Since communications between Clerks and Justices are private and outwith the presence of the accused and his legal advisers, does the accused have a fair hearing in public?

28-03-2000 'Mrs Josephine Strath, J.P.'

Date Justice of the peace for the

Commission Area of Fife."

[2] Mr. Sudjic, for the accused, explained that he proposed to seek answers to questions 1, 2, 3 and 5. Questions 2 and 3 raised an issue as to the status of the clerk of the District Court when the court was presided over by a lay justice. Question 5 raised the issue as to whether the accused had a fair hearing in public when communications between clerks and justices were private and outwith the presence of the accused and his legal advisers. Questions 2 and 3 should be answered in the affirmative and question 5 should be answered in the negative. In the event that the challenge on either or both issues was successful, question 1 should be answered in the negative. We find it convenient to deal with the submissions on each issue, and our conclusions on that issue, separately.

The First Issue:- Status of the District Court clerk

[3] Mr. Sudjic submitted that the clerk of the District Court at Kirkcaldy is part of the tribunal, being as a matter of law a member of that court. The point of this submission was that if the clerk is a member of the Court, the clerk lacks the necessary security of tenure for the Court to qualify as an independent and impartial tribunal in terms of Article 6(1) of the European Convention on Human Rights. The basis for the submission that the clerk is a member was the nature of the appointment of the clerk and of lay justices. It is provided by section 7 of the District Courts (Scotland) Act 1975 that,

"(1) It shall be the duty of each local authority to appoint and employ, whether on a full-time or part-time basis, an officer to act as clerk of the district court for their area, who shall also act as legal assessor in that court, and any person so appointed shall be an advocate or a solicitor.

(2) There shall be transferred to the clerks of the district courts all functions hitherto exerciseable by clerks of the existing courts..."

Qualifications of legal assessors apart, there was nothing new in the concept of legal advice being provided to lay justices. Justices operating in the pre-existing burgh, or police, courts and justice of the peace courts received legal advice as required from the clerk acting as their legal assessor (see, for instance, Walker on Justice of the Peace).

[4] So far as the justices are concerned, section 2 of the 1975 Act provides,

"(1) Each commission area shall be the district of a district court, and the places at which a district court sits, and the days and times when it sits at any given place, shall be determined by the local authority concerned.

(2) The jurisdiction and powers of the district court shall be exercisable by a stipendiary magistrate or by one or more justices, and no decision of the court shall be questioned on the ground that it was not constituted as required by this subsection unless objection was taken on that ground by or on behalf of a party to the proceedings not later than the time when the proceedings or the alleged irregularity began."

[5] Mr. Sudjic explained that only lay justices sat at Kirkcaldy District Court. Indeed, at present the only district court in which stipendiary magistrates sat was Glasgow District Court. He submitted that lay justices could never sit on their own because this would be contrary to Article 6(1) of the European Convention on Human Rights. This was because it would not be possible to have a fair trial in terms of Article 6(1) without using the qualified legal assessor to assist the lay justice. Because of the way in which the District Court operated in practice, any legal advice tendered had to be tendered by the legal assessor. As in any case legal advice was liable to be required, the legal assessor must be regarded as a matter of law as part of the tribunal, namely a member of the court, whether or not he gave advice on the particular case before the court and whether or not the advice which he tendered was given in public or in private.

[6] Mr. Sudjic submitted that if question 3 fell to be answered in the affirmative, then it followed that question 1 must be answered in the negative. This was because, as he had explained at the outset, clerks of the district court did not have the necessary security of tenure to render the district courts of which they were members "independent and impartial" tribunals within the requirements of Article 6(1) of the European Convention on Human Rights (Starrs v. Ruxton 2000 S.L.T. page 42). It was understood to be conceded by the Solicitor General that as matters stand, if a district court clerk was held to be a member of the district court as a matter of law, then the necessary security of tenure of office for Article 6(1) purposes would be absent. Accordingly, if question 3 was to be answered in the affirmative it would follow that question 1 would require to be answered in the negative. It was unnecessary to elaborate upon that matter. The Solicitor General confirmed that he made this concession.

[7] Upon this first issue as to the status of the clerk, the Solicitor General submitted that the clerk was clearly not a member of the court. The point raised was not a point of perception but one as to whether the clerk was a member of the court as a matter of law. The wording of section 2(2) of the District Courts (Scotland) Act 1975 made it very clear indeed that the jurisdiction and powers of the district court are to be exercisable by a stipendiary magistrate or by one or more justices. Section 7(1) made it equally clear that the clerk of the court required to be appointed and employed by each local authority for the district court for their area is to act as legal assessor in that court, and that any person so appointed is to be an advocate or a solicitor. As legal assessor, the clerk requires to advise the justice as to what the law is. The clerk plays no part in the actual decision-making. In "The Oxford Companion to Law (1980)", at page 86, Professor Walker states in relation to the office of "Assessor",

"...in Scotland the Court of Session may summon to its assistance a specially qualified assessor, particularly in admiralty or patent actions...an assessor has no voice or power in deciding any issue before the court, his function being to assist the court's deliberations by enlightening it on the technical aspects of the matter being inquired into".

In the case of the legal assessor here concerned, the clerk to the district court, the technical aspects concerned comprise the relevant law but the principle is the same as in the case where the assessor provides expertise on matters of fact. A similar definition could be found in, for example, Jowett's Dictionary of English Law. The important point was that as legal assessor the clerk was an adviser on the law, not a judge. The Solicitor General also referred to chapter 12 of the Rules of the Court of Session 1994, relating to assessors. In the footnote to Rule of Court 12.1.1 it is stated,

"The assessor does not determine the issues of fact: he provides expert advice on which the court may rely in determining the issues. The court is not bound to follow the advice;..."

He referred also to the "Handbook for newly appointed Justices of the Peace in Scotland" (August 1989). It is there stated in relation to the position of clerk of court (at page 29),

"(2) The clerk is not a member of the court and does not share the court's responsibility for its decisions. He is an official who is appointed, on a full-time or part-time basis, by the local authority. He must be an advocate or solicitor. The post may be held by the same person as that of clerk of the peace.

(3) It is the clerk's duty, by statute, to advise the justices, either at their request or on his own initiative, on matters of law, practice and procedure, and so he is able to guard them against making mistakes, especially in respect of some of the technicalities of procedure and evidence. He does not give rulings. Normally he does not question witnesses, although he may suggest questions to the justice. Unless there is good reason for not doing so, justices should accept the clerk's advice on procedural and legal matters. Most cases involve no special difficulties and can be decided without reference to the clerk for any advice, but when there are legal arguments or when there is difficulty about interpretation of an act of parliament it is usually best to retire for consultation with him. However the clerk takes no part in deliberations on convictions or sentence. On sentencing he is primarily only concerned to advise on the powers of the court, though on occasions justices may be informed as to the level of penalty generally imposed by the court or by neighbouring courts."

This guidance as to appropriate practice in the district court is wholly consistent with the position in law of the clerk, which, as the handbook correctly expressly states, is not that of a member of the court.

[8] In submitting that the second and third questions should be answered in the negative, the Solicitor General made it clear that he did not seek to do so on the simple basis that, read short, the reference provides that,

"...CONSTITUTION OF THE DISTRICT COURT AT KIRKCALDY...

(2) ...The Clerk is not a member of the Court and does not share the responsibility of the Court for its decision...The Clerk does not offer judgement. The Clerk takes no part in deliberations on conviction or sentence. On sentencing he is only concerned to advise on the powers of the Court."

While the terms of the reference reflected the correct position in law, that position should be decided on the basis of the submissions which he had made and not upon the technicality of the terms of the reference.

[9] In our opinion, the clerk of a district court is not a member of the court. It is accepted that the question in issue is a question of law to be determined by the scope of the clerk's defined duties. In our opinion, the clerk's role as legal assessor is clearly confined to that of adviser on the law. It is to provide the justice or justices with such information as to the law as is necessary to equip them to fulfil the role of decision-maker or decision-makers which is exclusively their role. It was not suggested that he had any entitlement to vote in the decision-making process. We find that the terms of sections 2 and 7 of the District Courts (Scotland) Act 1975 by themselves make the appropriate answer to this first issue very clear indeed. We also accept the submissions by the Solicitor General based on the function of assessors in other, reasonably comparable at least, contexts, although our decision on this first issue is not dependent to any extent on such supportive material. It is also very clear from the guidance given in the "Handbook for newly appointed Justices of the Peace in Scotland" as to the role of the clerk of the district court that that guidance is wholly consistent with what we hold to be the correct position in law. While this is so, our decision similarly is not based on such guidance. It is based wholly on consideration of the statutory provisions referred to as to the respective role of justices and clerks. We record that we agree with the Solicitor General that it would have been inappropriate for him to rely on the terms of the reference alone on this first issue. We have therefore taken no account of the statement in the reference that the clerk is not a member of the court.

[10] Upon the first issue, we answer questions 2 and 3 in the negative and, accordingly, no question arises of answering question 1 in the negative on the basis of a positive answer to question 3.

The Second Issue:- Private communications between clerks and justices

[11] Mr. Sudjic explained that the normal practice in Kirkcaldy District Court was for one justice to sit alone. The ordinary practice at the conclusion of the proceedings, by which he meant after the evidence and submissions, was for the justice to retire with the clerk. Mr. Sudjic referred to section 7(1) of the District Courts (Scotland) Act 1975 and to the provision therein for the clerk fulfilling two roles, one as clerk and one as legal assessor. He referred to the terms of section 4(1) of the 1975 Act which provides,

"Subject to the provisions of this section, the rules of procedure and practice which immediately before 16th May 1975 applied to the existing courts shall, with any necessary modifications, apply on and after that date to the district court."

Section 1 of the Act provides,

"(1) On 16th May 1975 the inferior courts in Scotland existing immediately before that date (in this Act referred to as 'the existing courts') shall cease to exist, and on that date there shall be established, in accordance with the provisions of this Act, a district court for each commission area except in the case of a commission area in respect of which the Secretary of State otherwise directs, having regard to the likely lack of business for such a court.

In this subsection, 'inferior courts' means all justice of the peace courts, quarter sessions, burgh courts, police courts, and the court of the bailie of the river and firth of Clyde.

(2) On and after that date, all functions of burgh magistrates, not otherwise provided for, shall be exercisable by a justice of the peace...".

Mr. Sudjic referred also to section 153(1) of the Criminal Procedure (Scotland) Act 1995 which provides,

"Without prejudice to section 150 of this Act, and subject to subsection (2) below, no part of a trial shall take place outwith the presence of the accused."

Section 150 relates to a failure of the accused to appear, and subsection (2) refers to misconduct of the accused necessitating his removal.

[12] Mr. Sudjic next referred to Article 6(1) of the European Convention on Human Rights which provides that,

"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. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."

Mr. Sudjic submitted that in this provision there was no exception, which was material for present purposes, to qualify the accused's right to a public hearing. He was deprived of such a public hearing if the justice was advised in private by the legal assessor, in particular outwith the presence of the accused and his legal advisers. This was so whether or not the clerk is a member of the court. Accordingly, question 5 should be answered in the negative and question 1 in the negative.

[13] The Solicitor General, in reply on this issue, said that his information was that there was no invariable practice of private communings between clerk and justice. However, where advice was sought this was done privately. The basis of the contention for the accused was Article 6(1) of the Convention. The submission was that the accused was denied a fair and public hearing. The accused had no absolute right to such a hearing. However, the possibilities where the right may be elided do not apply here. The Solicitor General submitted that there were five points to bear in mind in consideration of the issue raised:- (1) a private communication between the justice and legal assessor contained only legal advice; (2) the justice was not obliged to accept the advice given; (3) the advice is normally at the conclusion of the trial; (4) the procurator fiscal does not know in each and every case what legal advice, if any, the clerk has provided to the justice; and (5) for the justice to include the clerk or legal assessor as part of the process of determination of judgment would be an unlawful act for the justice and for the clerks. He submitted that it has to be assumed that the justice and the clerk will act lawfully. The submissions made for the accused were structural. It was not being asserted that there will be unlawful acts in the present case. He submitted that what the clerk and justice do when legal advice is provided, is not part of the hearing. It is a part of the process of judgment. The position is analogous to a different court retiring to consider a point in the case. Where three justices retire to consider the case, this is a private process, part of the process of moving to judgment. Accordingly, there is no breach of the requirement by section 153(1) of the Criminal Procedure (Scotland) Act 1995 that no part of a trial shall take place outwith the presence of the accused. Nor do communications between clerks and justices in private contravene the terms of Article 6(1) of the European Convention on Human Rights.

[14] The Solicitor General then referred to decisions of the European Court of Human Rights in support of his submission on this second issue. He referred first to the case of Delcourt v. Belgium 1 EHRR 355. This was a decision of the Court in 1970. It related to the Court of Cassation in Belgium. The applicant was a Belgian citizen who had been convicted and sentenced for fraud and forgery. His sentence was increased on appeal. Subsequently, the Court of Cassation, after deliberating in private, dismissed two further appeals. In an application lodged with the European Court of Human Rights the applicant put forward various complaints but only those concerning Article 6(1) were declared admissible. The applicant maintained, in particular, that the legislation in accordance with which a member of the procureur général's department had attended the private deliberations of the Court of Cassation (to which the department was attached), contravened the principle of "equality of arms" contained in Article 6(1). The Government protested that a member of the procureur général's department should be entitled to attend the deliberations, pursuant to the legislation, as the role of the department was confined to advising the Court of Cassation on matters of law, so that it was in no way an adversary of the accused. The plenary Commission agreed that there had been no violation of Article 6(1) under the circumstances, and referred the case to the Court. It was held by the Court that the legislation did not violate the right to a "fair hearing" contained in Article 6(1). The procureur général's department attached to the Court of Cassation served in an advisory capacity only and exercised no prosecutorial functions. In light of an analysis of the actual working of the system and of the corresponding statistics, both of which indicated no prejudice to the accused, there could be no objection to the presence of a member of the department at the private deliberations of the Court of Cassation. It was held that Article 6(1) was applicable to proceedings in cassation, although the way in which it was to apply would depend on the special features of the particular proceedings. It was held that the applicant was entitled to claim full equality of treatment as against the respondent parties at the Court of Cassation which, in that case, were the procureur général's departments at the courts of first instance and appeal. The evidence, however, disclosed no discrimination against the applicant in this regard. The procureur général's department at the Court of Cassation could not be "considered as a party" as it did not ordinarily conduct public prosecutions, bring cases before that court or have the character of respondent. However, this in itself did not show that the applicant's complaints under Article 6(1) were unfounded. While the procureur général's departments at the Court of Cassation and at the lower courts were allegedly separate, this distinction was not evident from an examination of the legislative text or from an initial glance at the workings of the system in practice. Accordingly, it was understandable that some litigants might be inclined to view the procureur général at the Court of Cassation as an adversary, especially on seeing him withdraw with the judges to attend deliberations held in the privacy of chambers. However, while a superficial analysis of the system might lead to the conclusion that the dictum "justice must not only be done; it must also be seen to be done" was not observed, it did not amount to proof of a violation of the right to a fair hearing. On closer examination, it was seen that there was no infringement of the right to a fair hearing in view of (i) the independence of the Court of Cassation from the Ministry of Justice; and (

[15] In the terms of its judgment, the court drew a clear distinction between the procureur général's department at the Court of Cassation and the procureur général's department at the lower courts. In recognising that some litigants may quite naturally be inclined to view as an adversary a procureur général who submits that their appeals in cassation should be dismissed, the court said (at paragraph 30),

"They may be all the more inclined to do so when they find themselves deprived of any real debate before the highest court because the procureur général's department at the Court of Appeal only very rarely makes use of the right of reply - in any event restricted - which the law confers on it in proceedings in cassation. And one may imagine that such litigants can have a feeling of inequality if, after hearing a member of the procureur général's department at the Court of Cassation make, in open court, final submissions unfavourable to their pleas, they see him withdraw with the judges to attend the deliberations held in the privacy of chambers."

The court then observed that the Belgian legislation providing for this did not seem to have any equivalent today in the other Member States of the Council of Europe, at least in criminal cases. They further noted that the avocat général at the Court of Justice of the European Communities, even though there are analogies between his functions and those of the procureur général at the Belgian Court of Cassation, does not take part in the deliberations. In paragraph 31, the Court held that, looking behind appearances, it did not find the realities of the situation to be in any way in conflict with the applicant's right to a fair hearing. This was because, in terms of paragraph 32, the procureur général's department at the Court of Cassation functions wholly independently of the Minister of Justice, save in exceptional matters irrelevant to the case concerned. The procureur général at the Court of Cassation is not entitled to instigate or prevent the institution of a prosecution before the lower courts or to intervene at any stage in the conduct of a case already brought before them, or to order the procureur général's department at a Court of Appeal to lodge or withdraw an appeal in cassation. In terms of paragraph 33, the officers of the procureur général's department at the Court of Cassation upholds a different interest to that of the Department of the courts of first instance and appeal in that it is concerned with the observance by the judges of the law and not with the establishment of the guilt or innocence of the accused. In terms of paragraph 34, the procureur général's department at the Court of Cassation is an adjunct and an adviser of the court; it discharges a function of a quasi-judicial nature. By the opinions which it gives according to its legal conscience, it assists the court to supervise the lawfulness of the decisions attacked and to ensure the uniformity of judicial precedent. Statistics show that the procureur général's department at the Court of Cassation frequently make submissions favouring the convicted person. In terms of paragraph 35, the court said that,

"Nor could the independence and impartiality of the Court of Cassation itself be adversely affected by the presence of a member of the procureur général's department at its deliberations once it has been shown that the procureur général himself is independent and impartial."

A final point made by the Court, in terms of paragraph 36, was that the system challenged dated back for more than a century and a half. It said,

"While it is true that the long standing of a national legal rule cannot justify a failure to comply with the present requirements of international law, it may under certain conditions provide supporting evidence that there has been no such failure. The Court is of opinion that this is the case here. In this connection, the Court notes that on two occasions a parliament chosen in free elections has deliberately decided to maintain the system, the first time unchanged (preparatory work to the Act of 19 April 1949), the second time in substance and after studying the question in the context of the Convention (preparation of the new Judicial Code). Furthermore, the propriety and fairness of the rule laid down in Article 39 of the Decree of 15 March 1815 and then in Article 1109 of the 1967 Judicial Code - as it operates in practice - appears never to have been put in question by the legal profession or public opinion in Belgium. This wide measure of agreement would be impossible to explain if the independence and impartiality of the men on whose shoulders fell the administration of this institution at the Court of Cassation were doubted in Belgium, if the worth of their contribution to the body of decision of the highest court were disputed or if their participation at the deliberations of the judges had been thought in any single case to open the door to unfairness or abuse."

[16] The Solicitor General submitted that the circumstances of the present case were distinctly stronger than in the Delcourt case in favour of there being no contravention of Article 6(1), in particular in that the legal adviser to the district court was employed by the district council and was totally independent in every way of the procurator fiscal's department. Moreover, the legal adviser's function was confined to the provision of legal advice and there were no grounds whatsoever for any apprehension that the legal adviser could be regarded as an adversary of the accused.

[17] The Solicitor General next referred to the case of Borgers v. Belgium 1 E.H.R.R. 92. This was a decision of the court in 1991. The applicant had been convicted in 1982 of forgery and uttering forged documents. He successfully appealed to the Court of Cassation which remitted the case to a different court. After a re-trial he was again convicted. He appealed for a second time to the Court of Cassation. His appeal was dismissed in June 1985 following a hearing in which the Court heard submissions from the avocat général, who fulfilled the role of an advisor to the court and was not a representative of the prosecution in this instance. The applicant was not entitled to reply to the submissions of the avocat général. Furthermore, the avocat général had also participated in the deliberations of the Court prior to its decision. The applicant complained of violations of the Convention, including violation of Article 6. It was held by a majority of 18 votes to 4 that there had been a violation of Article 6(1) of the Convention. It was held in particular that the concept of a fair trial had undergone a considerable evolution in the case law of the Court since the case of Delcourt in 1970. Despite the unquestionable objectivity of the avocat général, he could not be regarded as neutral from the point of view of parties to the proceedings in the Court of Cassation. By making legal submissions which were unfavourable to the applicant, the avocat général became, objectively speaking, the applicant's opponent. Accordingly, Article 6(1) required that the rights of the defence and the principle of equality of arms be respected. There was no justification for the restriction on the defence which prevented them from replying to the unfavourable submissions of the avocat général. More importantly, the inequality between the defence and the prosecution was increased by the fact that the avocat général participated in the deliberations of the Court of Cassation prior to its decision. It could reasonably be thought that this would give the avocat général an opportunity to promote his views without fear of contradiction by the defence. Having regard to the above two matters, the Court decided that there had been a violation of Article 6(1). In terms of paragraph 24 of the judgment of the majority of the Court it was held that the findings in the Delcourt judgment on the question of the independence and impartiality of the Court of Cassation and its procureur général's department remained entirely valid. However, it was

"...necessary to consider whether the proceedings before the Court of Cassation also respected the rights of the defence and the principle of the equality of arms, which are features of the wider concept of a fair trial. This has undergone a considerable evolution in the Court's case law, notably in respect of the importance attached to appearances and to the increased sensitivity of the public to the fair administration of justice."

In terms of paragraph 26,

"By recommending that an accused's appeal be allowed or dismissed, the official of the procureur général's department becomes, objectively speaking, his ally or his opponent. In the latter event, Article 6(1) requires that the rights of the defence and the principle of equality of arms be respected".

In terms of paragraph 27,

"In the present case the hearing on 18 June 1985 before the Court of Cassation concluded with the avocat général's submissions to the effect that Mr. Borgers' appeal should not be allowed. At no time could the latter reply to those submissions: before hearing them, he was unaware of their contents because they had not been communicated to him in advance; thereafter he was prevented from doing so by statute. Article 1107 of the Judicial Code prohibits even the lodging of written notes following the intervention of the member of the procureur général's department. The Court cannot see the justification for such restrictions on the rights of the defence. Once the avocat général had made submissions unfavourable to the applicant, the latter had a clear interest in being able to submit his observations on them before argument was closed. The fact that the Court of Cassation's jurisdiction is confined to questions of law makes no difference in this respect."

In terms of paragraph 28,

"Further and above all, the inequality was increased even more by the avocat général's participation, in an advisory capacity, in the court's deliberations. Assistance of this nature, given with total objectivity, may be of some use in drafting judgments, although this task falls in the first place to the Court of Cassation itself. It is however hard to see how such assistance can remain limited to stylistic considerations, which are in any case often indissociable from substantive matters, if it is in addition intended, as the Government also affirmed, to contribute towards maintaining the consistency of the case law. Even if such assistance was so limited in the present case, it could reasonably be thought that the deliberations afforded the avocat général an additional opportunity to promote, without fear of contradiction by the applicant, his submissions to the effect that the appeal should be dismissed."

Accordingly, in terms of paragraph 29, the court concluded that there had been a violation of Article 6(1) "having regard to the requirements of the rights of the defence and of the principle of the equality of arms and to the role of appearances in determining whether they have been complied with".

[18] The Solicitor General submitted that the case of Borgers was clearly distinguishable from the present case because the avocat général was in a position where he was making submissions to the court and was able to urge those submissions again in private, without the applicant having any right to reply to those submissions. The avocat général was not neutral. In contrast, the clerk to the district court had no interest to support the position of the prosecution. The avocat général's participation in the deliberations of the court in the absence of the applicant materially aggravated the situation and further distinguished the position from that in the present case. Consideration of the judgments of the European Court of Human Rights in the two cases of Delcourt and Borgers showed that these judgments were clearly supportive of there being no breach of Article 6(1) of the Convention in circumstances such as those of the present case.

[19] The Solicitor General referred to the guidance given in the "Handbook for newly appointed Justices of the Peace in Scotland" in relation also to this second issue. He said that the guidance given as to the status and functions of the clerk already referred to in connection with the first issue showed the importance attached to adherence to the limitations of that function. He referred to page 55, where it is stated,

"Having listened patiently to the evidence and having considered the quality of the evidence and the personality and reliability of the witnesses, the justice should then give judgment. He may, however, before doing so, consult the clerk of the court (legal assessor) on any point of law about which he may be in doubt. Such consultation may take place either on the bench or in the justices' room. Care should be taken to avoid any impression that the clerk or assessor shares the responsibility for either verdict or sentence, which are the sole concern of the presiding justice or justices. Alternatively, the justice may continue the case for some time in order to make up his mind or to refer to any authority quoted during the hearing of the case."

It appears that the reference to "clerk or assessor" may refer to the earlier observation in paragraph 5 that "in some courts a legal assessor is appointed specifically and the administrative duties of the court are performed by clerical staff". There is no such division of responsibility in Kirkcaldy District Court. The Solicitor General next referred to page 59 of the handbook where it is stated, with regard to the chairman, where more than one justice sits,

"The orderly and efficient conduct of the business of the court is - and should be seen to be - in his hands. The clerk is there to advise, and full use should be made of his professional skill, but it is the chairman, speaking for the whole bench, who gives rulings on points of law, decides on the arrangement of the business and announces the decision of the court."

The position was similar where a justice sat alone. The Solicitor General submitted that the handbook made clear the importance of avoiding a situation where there could be any question of prejudice to the accused as a result of communings between the justice or justices and the accused in private.

[20] The Solicitor General next referred to discussion presently ongoing in England with regard to the future role of the justice's clerk in magistrates courts in England. He referred to a discussion paper of the Lord Chancellor's Department relating to such ongoing discussion. In this connection, it appears that, in terms of section 45 of the Justices of the Peace Act 1997, relating to the general powers and duties of justices' clerks, who are in England appointed by a Magistrates Courts Committee,

"(4) The functions of a justice's clerk include giving advice to the justices to whom he is clerk, at their request, about law, practice or procedure on questions arising in connection with the discharge of their functions, including questions arising when the clerk is not personally attending on them.

(5) The powers of a justice's clerk include, at any time when he thinks he should do so, bringing to the attention of those justices any point of law, practice or procedure which is or may be involved in any question so arising."

It is clear from the discussion paper that, while there are differences in method of appointment and specification of function in the case of magistrate's clerks in England as compared with clerks of the district court in Scotland, there is similar emphasis in guidance provided to the importance of not trespassing upon the exclusive function of lay justices or magistrates as the case may be, in particular because of the long-established practice of providing assistance in private and the consequent need to emphasise that there is nothing prejudicial to the accused in that practice.

[21] The Solicitor General presented an alternative argument in relation to question (5) in the event that this court held that private communications between the justice and the clerk would constitute a breach of Article 6(1). We will refer to this alternative submission and our views upon it later but we will first give our conclusions on the submissions upon question (5), disregarding for the moment the Solicitor General's alternative submission. On that basis, we conclude that question (5) falls to be answered in the negative. In particular, we conclude that communications between clerks and justices in private and outwith the presence of the accused and his legal advisers do not deprive the accused structurally of a fair hearing in public and do not disqualify the district court from being an independent and impartial tribunal in terms of Article 6(1) of the European Convention on Human Rights in terms of question (1).

[22] The requirement for justice not only to be done but to be seen to be done is well established in Scots law. A statutory example of application of this principle is the requirement, in terms of section 153(1) of the Criminal Procedure (Scotland) Act 1995, that "no part of a trial shall take place outwith the presence of the accused." However, any communications between clerks and justices in chambers or otherwise not in open court do not form "part of a trial" within the meaning of section 153(1) of the 1995 Act. We are not aware, indeed, of any challenge hitherto to the long-standing practice of communications between clerks as legal advisers and justices outwith open court. The challenge now made proceeds upon the requirements of Article 6(1) of the European Convention of Human Rights. It proceeds in particular upon the entitlement to "a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law". The present issue is concerned in particular with the requirement for the hearing to be public. Mr. Sudjic has made it clear that the challenge on this issue, as with the first issue, is a structural challenge. He does not suggest that there is any cause to believe that the clerk and justice will not act lawfully and in particular confine communications between them, whether in public or in private, to the obtaining by the justice of requisite advice on law and procedure. On the matter of sentence, this may include statistical information on sentences previously passed. Accordingly, the challenge on this issue is very much one of perception. The practical effect of Mr. Sudjic's submission on this issue was that either all communications whatsoever between the clerk in his capacity as legal adviser and the justice or justices must take place in open court, or alternatively the system of use of lay justices should be abandoned and lay justices replaced by stipendiary magistrates.

[23] In our opinion, there is nothing in the jurisprudence of the European Court of Human Rights which supports the submission for the accused on this issue. Indeed, Mr. Sudjic did not suggest in his submission to us that there was. Having regard to the novel nature of the present challenge and to the absence of courts truly comparable to district courts in continental member countries, the absence of any decision of the European Court of Human Rights very closely in point is not significant. However, the decisions of the court in the cases of Delcourt v. Belgium (1970) and Borgers v. Belgium (1991), referred to by the Solicitor General, do provide support, in our opinion, for the Crown contention that there is no breach of Article 6(1) as a result of the practice of communication between clerk and justice outwith open court. These cases show that the Belgian procedure involved differs materially from that applicable in the district court, in respect, in particular, of the absence of any connection whatsoever between the clerk of the district court and the prosecution, of the absence of the prospect of an argument favouring the prosecution being presented in private and, more generally, of the absence of any participation by the clerk in the process of actual deliberation on issues of conviction and sentence. Despite these differences, we note that the Delcourt decision disclosed no finding of breach of Article 6(1). The Borgers decision undoubtedly stressed that, on the matter of equality of arms in particular, notably in respect of the importance attached to appearances, there had been developments in the law since the Delcourt decision, although the findings of the Court in that case on the question of the independence and impartiality of the Court of Cassation were affirmed as still entirely valid. We find it significant that the development referred to in the Borgers case related to the matter of equality of arms. We fully understand why there was held to be a breach of Article 6(1) in the particular circumstances of the Borgers case but, in our opinion, the distinguishing features of that case referred to render the decision as of no assistance to the accused on the present issue. Indeed, as the Solicitor General submitted, these two cases demonstrate acceptance by the European Court of private communication between legal adviser and judge as being compatible with the requirements of Article 6(1). We do not find it necessary on the present issue to consider the scope of European jurisprudence concerning the relevance of preservation of practice and procedure long established in the domestic law of a member country. The Solicitor General preferred to have this issue decided independently of such a possible additional consideration and we respect that approach. We have, however, referred to what was said on this matter in paragraph 36 of the judgment in the Delcourt case, to which the Solicitor General made incidental reference. We merely observe that the practice now objected to has not, apparently, been the subject of challenge independently of Convention requirements before now as striking at the concept of a fair trial as that has been understood hitherto in our domestic criminal law.

[24] On this second issue, we accept the Solicitor General's submissions that question 5 should be answered in the affirmative and that, accordingly, there is no ground for answering question 1 in the negative on the basis of an affirmative answer to question 5. While we do not take into account the existence of the "Handbook for newly appointed Justices of the Peace in Scotland" and the nature of the guidance given therein in coming to our conclusion on question 5, we do find in the comprehensive and clear guidance given in that handbook reassurance that the training of justices and clerks includes sound guidance as to discharge of the respective roles of clerks and justices. Having recorded our approval of such guidance, it is right to record also that the discussion in this case has left us with one area of concern. We stress that we have no information that this concern is well-founded. This area of concern relates to ensuring that the following matters are raised in open court:-

(1) The content of any advice on the law given privately by the clerk to the justice which the clerk, or indeed the justice, perceives as possibly controversial;

(2) Observation by the clerk that some authority has been cited, or submission made, which is inaccurate as to the current position in law; and

(3) More generally, any matter which the clerk, or indeed the justice, perceives could be the object of relevant submission by one or other or both of the defence and the prosecution.

We make these observations because we find nothing objectionable in the practice of private communications between clerk, as legal assessor, and justice provided that care is taken not only to confine such communication to the provision of legal advice but also to recognise and raise in open court any matter upon which the defence, or indeed the prosecution, might reasonably wish to make material comment. We regard it as fortunate and appropriate that there is no jurisprudence of the European Court of Human Rights supportive of the accused's position on this issue as we consider that the successive systems of use of lay justices in Scotland over many years, involving as they have a practice of advice on the law tendered privately for sound practical reasons, has served Scotland well.

[25] We turn now to the Solicitor General's alternative submission. This is academic in the light of our decision that communications between clerks and justices in private do not result in a breach of Article 6(1) but we will record the Solicitor General's alternative submission and our views on it.

[26] The submission is that, esto private communications between clerk and justice would otherwise be a breach of Article 6(1), if the offences charged were minor and the accused would have the opportunity to challenge any conviction by appeal process which satisfied Article 6(1), then the breach of Article 6(1) in respect of the proceedings at first instance can be cured by the review process meeting the requirements of Article 6(1).

[27] In support of this alternative submission, the Solicitor General referred to five decisions of the European Court of Human Rights. The first of these was the case of Lauko v. Slovakia (2.9.98). It appears that the applicant had committed a minor offence under section 49(1)(d) of the Minor Offences Act in that without justification he had accused a family of causing a nuisance. It appears from paragraph 64 of the judgment that the prosecution and punishment of minor offences was entrusted to administrative authorities. This was held not to be inconsistent with the Convention, but it was stressed that the person concerned must have an opportunity to challenge any decision made against him before a tribunal that offers the guarantees of Article 6. In the Lauko case, the applicant was unable to have the decisions of the local and district offices reviewed by an independent and impartial tribunal since his complaint was dismissed by the Constitutional Court on the ground that the minor offence in issue could not be examined by a court. There had accordingly been a violation of Article 6(1). The Solicitor General said that it was clear that had there been an appellate procedure in which the requirements of Article 6(1) were met, the court would have held that there had been no breach of Article 6(1) having regard to the minor nature of the offence.

[28] The Solicitor General next referred to the case of Öztürk v. Germany 6 EHRR 409. This case in 1984 concerned a Turkish citizen fined for causing a traffic accident through careless driving in Germany. German law allows minor traffic offences to be treated as "regulatory" and dealt with by administrative authorities. Proceedings before the administrative authority concerned were in breach of Article 6(3)(e) because the applicant did not have the free assistance of an interpreter, although he could not understand or speak the language used in court. In terms of paragraph 56 of the judgment it was recognised that, although not curing the breach in that case,

"Conferring the prosecution and punishment of minor offences on administrative authorities is not inconsistent with the Convention provided that the person concerned is enabled to take any decision thus made against him before a tribunal that does offer the guarantees of Article 6."

[29] The Solicitor General next cited the case of Deweer v. Belgium 2 EHRR 439. In this case the applicant was alleged to have committed an offence of selling meat at an illegal profit. He avoided an intended criminal prosecution by paying an agreed fine by way of settlement. He did this only under protest. It was held that there was a breach of Article 6(1). In terms of paragraph 26 of the judgment, the court rejected the contention for the Government that the applicant had not exhausted his remedies. It held that it was for the state to prove that there exist available remedies which have not been utilised by those concerned and it was for the Government to identify such remedies which complied with Article 6.

[30] The Solicitor General next referred to the case of Findlay v. United Kingdom 24 EHRR 221. This case in 1997 concerned a lance sergeant in the British Army. He developed post traumatic stress disorder after serving in the Falklands and created an incident involving threatening to shoot himself and others, firing shots in the air. He was arrested and brought before a court-martial. Despite evidence of his condition, he was sentenced to imprisonment reduction in rank and dismissal from the Army. The E.C.H.R. held that the court-martial was not an independent and impartial tribunal and he had been denied a fair hearing in terms of Article 6(1). In terms of paragraph 72 of the judgment, the Commission found that the applicant's fears about the independence of the court-martial could be regarded as objectively justified and that this defect was not remedied by any subsequent review by a judicial body affording all the guarantees required by Article 6(1), since the confirming officer, whose confirmation was necessary to effective determination, was the same person as the convening officer and all the members of the court-martial were subordinate in rank to him and appointed by him. The ineffectiveness of the reviews was further underlined by the secrecy surrounding them and the lack of opportunity for Mr. Findlay to participate in a meaningful way. In terms of paragraph 78 of its judgment, the Court agreed with the Commission. In terms of paragraph 79, the Court held,

"Nor could the defects referred to...be corrected by any subsequent review proceedings. Since the applicant's hearing was concerned with serious charges classified as 'criminal' under both domestic and Convention law, he was entitled to a first instance tribunal which fully met the requirements of Article 6(1)".

[31] The Solicitor General referred finally to the case of De Cubber v. Belgium 7 E.H.R.R. 236. This was a case in 1984 concerning a Belgian citizen who was convicted of offences of forgery and uttering forged documents. He complained that the court which convicted him was not an impartial tribunal since one of the judges had previously acted as investigating judge in the same case. The Commission unanimously held that this was a violation of Article 6(1) and referred the case to the Court. It was held that there had been a breach of Article 6(1). In terms of paragraph 32 of the judgment, the Court stated,

"Article 6(1) concerns primarily courts of first instance; it does not require the existence of courts of further instance; it does not require the existence of courts of further instance. It is true that its fundamental guarantees, including impartiality, must also be provided by any courts of appeal or courts of cassation which a Contracting State may have chosen to set up. However, even when this is the case it does not follow that the lower courts do not have to provide the required guarantees. Such a result would be at variance with the intention underlying the creation of several levels of courts, namely to reinforce the protection afforded to litigants."

The Solicitor General said that this was the basis upon which the case of Findlay had made the distinction between serious and non-serious criminal matters. If a matter was "non-serious" and there were means of review in which the requirements of Article 6(1) were satisfied then the defect of breach of Article 6(1), so far as the court of first instance was concerned, may be cured. In such a situation, the contracting state was not in breach of Article 6(1).

[32] The Solicitor General then submitted that the district court was not concerned with serious criminal matters. It was concerned only with minor, or "non-serious", matters. In terms of the Criminal Procedure (Scotland) Act 1995 section 7(6) its custodial powers were limited to a sentence of up to 60 days custody. It could impose a fine of up to �2,500. The jurisdiction of the district court was only suitable for dealing with "non-serious" criminal matters. His submission was that it could be stated generally in respect of all cases heard in the district court that they were of a "non-serious" nature for the purposes of the submission that he was making but, alternatively, the circumstances of the present case, involving alleged theft of two T-shirts and a breach of the peace in a shopping centre, qualified the present case as a minor, or "non-serious", matter in this context. He accepted, so far as appellate process was concerned, that all that could sensibly be reviewed was a matter of law. He referred to the provision for appeal in the Criminal Procedure (Scotland) Act 1995 and in particular to sections 175, 176 and 191(1) of that Act. He also referred to the availability in suitable circumstances of a petition to the nobile officium to prevent injustice or oppression. The Appeal Court could remit the case to the inferior court to be re-tried in terms of section 183 of the Act. In the whole circumstances, if it was held that there was a breach of Article 6(1) in respect of the practice of communication in private between clerk and justice, then this was cured by the availability of appellate process satisfying the requirements of Article 6(1) in respect that the offences charged were of a "non-serious" nature.

[33] In our opinion, had we held that there was a breach of Article 6(1) in respect of the private communications referred to, we would not have sustained this alternative submission for the Solicitor General, either in its form as applying to all cases in the district court or in its form as applying to the circumstances of the present case. In its latter form, incidentally, the complications to which it would give rise in distinction between charges would be horrendous. In our opinion, the authorities cited by the Solicitor General in support of the concept of curing breach of Article 6(1) in certain circumstances, in particular where administrative bodies decide matters at first instance, would not supply such a cure in the circumstances of any cases tried in the district court. In particular, in our opinion, breach of Article 6(1) in respect of proceedings of a court which forms part of a criminal court system cannot be cured in this way by the existence of an appellate system in which the appeal court or courts satisfy the requirements of Article 6(1). We envisage that this is the situation in any circumstances but, in our opinion, it is particularly so where the appellate court is effectively restricted to consideration of matters of law. Accordingly, the question of classification of the offences involved in any particular case, or before any particular court, does not arise.

[34] On the whole matter, we answer questions 2 and 3 in the negative and question 5 in the affirmative. It is inappropriate, in the circumstances, to answer question 1. This would only have been appropriate had we answered question 2 or question 5 in the way sought by the accused.