Scottish High Court of Justiciary Decisons

Kenny v. Procurator Fiscal [2002] ScotHC 92 (10 July 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Kirkwood Lord Abernethy Sheriff Principal Bowen	Appeal No: 138/02 OPINION OF THE COURT delivered by LORD KIRKWOOD in NOTE OF APPEAL IN REFERENCE OF DEVOLUTION ISSUE by KEVIN DAVID KENNY Appellant; against PROCURATOR FISCAL, DUMFRIES Respondent: _______

 

 

Appellant: Sudjic, Solicitor, Advocate; Seagrave & Co.

Respondent: A.D.D. Batchelor, Q.C., Advocate.

10 July 2002

1. The appellant, Kevin David Kenny, was charged at the instance of the Procurator Fiscal at Dumfries with theft and uttering. The complaint called in Dumfries Sheriff Court on 26 April 2000. The appellant pled guilty by letter to both charges. Sentence was deferred until 17 May 2000 for reports and the personal appearance of the appellant. On 17 May sentence was deferred until 7 June and on that date sentence was further deferred until 6 December 2000 for the appellant to be of good behaviour. On 6 December 2000 the appellant failed to appear and a warrant was granted for his arrest. On 19 December 2000 the appellant appeared in answer to the warrant and sentence was further deferred for good behaviour until 20 June 2001. On 20 June the appellant again failed to appear and a warrant was granted for his arrest. All these diets were before permanent sheriffs at Dumfries Sheriff Court. The appellant was subsequently apprehended and he appeared from custody in answer to the warrant on 19 July 2001 before an honorary sheriff, Mrs. Johann Findlay. At that diet the solicitor for the appellant sought leave of the court to state a plea to the competency of the proceedings in respect that the day's proceedings were before an honorary sheriff who had no legal qualifications. It was contended that the honorary sheriff was not exercising judicial power in an appropriate manner, and that Dumfries Sheriff Court was not an impartial and independent tribunal when it was presided over by an honorary sheriff with no legal qualifications. The court allowed the plea to the competency to be stated and, in respect that it raised a devolution issue in terms of paragraph 1 of Schedule 6 to the Scotland Act 1998, determined that that issue might be raised. The solicitor for the appellant was permitted to lodge a minute and the diet was adjourned until 14 August 2001 as a diet of debate in relation to the devolution issue. The honorary sheriff was also asked to grant the appellant bail and she acceded to that request and he was released. On 14 August 2001 Sheriff Ross referred the devolution issue to the High Court of Justiciary in terms of paragraph 9 of Schedule 6 to the 1998 Act and directed the appellant to lodge a draft devolution reference in terms of paragraph 40.7 of the Act of Adjournal (Criminal Procedure Rules) 1996 within 21 days, allowed a further period for proposed adjustments, and continued bail. Parties are agreed that a relevant devolution issue has been raised.
2. Mrs Johann Findlay is an honorary sheriff who was appointed by Mr Graham Cox, Q.C., the former Sheriff Principal of South Strathclyde, Dumfries and Galloway. She is an experienced justice in the district court in Dumfries but she has no legal qualifications. The sheriff court clerk who was on duty in court on 19 July was not legally qualified.
3. Honorary sheriffs are appointed in terms of section 17 of the Sheriff Courts (Scotland) Act 1907 which, as amended by the Sheriff Courts (Scotland) Act 1971, provides as follows:-

"The sheriff principal may by writing under his hand appoint such persons as he thinks proper to hold the office of honorary sheriff within his sheriffdom during his pleasure, and for whom he shall be answerable. An honorary sheriff, during the subsistence of his commission, shall be entitled to exercise the powers and duties appertaining to the office of sheriff. An honorary sheriff shall hold office, notwithstanding the death, resignation, or removal of the sheriff principal, until his commission shall be recalled by a succeeding sheriff principal. In this section sheriff principal does not include sheriff."

4. We were informed that there are at present 354 honorary sheriffs in Scotland, 193 of whom are legally qualified. Many of the honorary sheriffs who are not legally qualified hold appointment solely as a mark of honour and respect, and do not sit in court or carry out any shrieval functions. In general, honorary sheriffs sit in court to deal with custody cases only when a permanent sheriff is not available for any reason. They receive pleas of guilty and are able to deal with questions relating to the liberty of the various accused in court. They can impose sentences, including sentences of imprisonment in appropriate cases, although the practice of many honorary sheriffs is to defer sentence for the attention of a permanent sheriff in such cases. They may also remand persons in custody. In 2001 the number of sheriff court "sitting days" presided over by honorary sheriffs was 593 out of a total of 25,692 (2.3% of the total). They also deal with various procedural matters, such as the fixing of further diets in consequence of pleas tendered by persons appearing from custody before them. The practice at Dumfries Sheriff Court is to have two of its honorary sheriffs, one of whom is Mrs Findlay, to preside over the custody courts on Thursdays and/or Fridays on an almost weekly basis. Honorary commissions are not in practice reviewed by sheriffs principal at any regular interval or otherwise, and they generally subsist until the death of the holder. There was no known case of an honorary commission having been revoked in consequence of a decision made in court by the honorary sheriff. Honorary sheriffs take the oath of allegiance and the judicial oath on their appointment, and are not remunerated for their services. Neither the Lord Advocate nor the Scottish Executive has any role in the appointment of honorary sheriffs or in the selection of honorary sheriffs to sit in court.
5. Article 5(1) and (3) of the European Convention on Human Rights provide as follows:-

"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...

3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial."

Article 6(1) states inter alia as follows:-

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...".

The questions of law which have been referred to us are as follows:-

"1. Did the involvement of the Honorary Sheriff in the proceedings against Kevin David Kenny on 19^th July, 2001 meet the requirements of Article 5(3) E.C.H.R? In particular was the Honorary Sheriff a judge or other officer authorised by law to exercise judicial power within the meaning of Article 5(3) E.C.H.R?

2. Was the Honorary Sheriff, in presiding over the appearance from custody of Kevin David Kenny on 19^th July, 2001, an independent and impartial tribunal within the meaning of Article 6(1) E.C.H.R?

3. In the context of Article 6(1) E.C.H.R, did the proceedings on 19^th July, 2001 constitute the "determination of a criminal charge" against Kevin David Kenny?

4. In the context both of Article 5(3) and Article 6(1) E.C.H.R, can a distinction be drawn between an Honorary Sheriff with legal qualifications and an Honorary Sheriff without such qualifications?

5. Was the act of the Procurator Fiscal in continuing the proceedings against Kevin David Kenny before an Honorary Sheriff on 19^th July, 2001 incompatible with the convention rights of Kevin David Kenny and hence ultra vires with reference to Section 57(2) of the Scotland Act 1998?"

6. The solicitor advocate who appeared for Mr Kenny submitted that the court in which the appellant appeared on 19 July, and which was presided over by an honorary sheriff who had no legal qualifications, was not a "tribunal" within the meaning of Article 6(1). Mrs. Findlay had been appointed in terms of section 17 of the Sheriff Courts (Scotland) Act 1907, as amended, and she was entitled, during the subsistence of her commission, to exercise the powers and duties appertaining to the office of sheriff. However, that section should be contrasted with the statutory provisions relating to the appointment of sheriffs. Section 5(1) of the Sheriff Courts (Scotland) Act 1971 provides that a person appointed to the office of sheriff must have been legally qualified for at least 10 years. Section 5(2) provides that "sheriff" in section 5(1) does not include an honorary sheriff. Reference was also made to section 7 of the District Courts (Scotland) Act 1975, as amended, which provides that each local authority must appoint and employ 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". Further, section 178(1) of the Criminal Procedure (Scotland) Act 1995 provided that in the district court, where a trial had been presided over by a justice of the peace, a stated case had to be drafted by the clerk of court. In the present case the honorary sheriff had no legal qualifications, nor did the clerk of court. In the circumstances a court presided over by a person with no legal qualifications could not properly be described as a tribunal. For example, a person who was awarded a medical degree honoris causa would not be permitted to practice as a doctor. If Mrs. Findlay had been sitting that morning in the district court, she would have had to be accompanied by a legally qualified clerk of court, but sitting as an honorary sheriff there was no such requirement. An honorary sheriff was entitled to perform all the functions of a permanent sheriff. In the circumstances it was submitted that a court presided over by an honorary sheriff who had no legal qualifications did not constitute a "tribunal" within the meaning of Article 6(1).
7. It was further submitted that, even if it was a tribunal within the meaning of Article 6(1), it was not an independent tribunal due to the lack of security of tenure of an honorary sheriff, whether legally qualified or not. An honorary sheriff held office at the pleasure of the sheriff principal who had made the appointment and the commission could be withdrawn at any time without explanation, although it was not suggested that that had ever happened. This lack of security of tenure had to be compared to the position of a sheriff where there was an elaborate procedure if he was to be removed from office. Similarly, in the case of the new part-time sheriffs, there were detailed provisions relating to removal from office (section 11C of the 1971 Act, as amended). In the case of an honorary sheriff the appearance of independence was lacking. While the honorary sheriff was independent of the parties, she held her office at the whim of the sheriff principal. Accordingly, she was not independent of the person who had appointed her. In the case of an honorary sheriff there is no provision for any investigation before the appointment is terminated. While it was submitted that an honorary sheriff was not independent, it was not suggested that there was any lack of impartiality.
8. Turning to the questions contained in the reference, the solicitor advocate eventually accepted that question 1 is not relevant to this reference. Indeed, this is a concession which could not have been withheld because it is plain that Article 5(3) has no application to the circumstances of this case. This is because Article 5(3) relates to "everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article", whereas it was common ground that the appellant's arrest had fallen within the terms of Article 1(b). So far as question 2 is concerned, we were invited to answer it in the negative, on the basis that the court presided over by the honorary sheriff was not a "tribunal" within the meaning of Article 6(1) and, even if it was a tribunal, it was not independent. With regard to question 3, the solicitor advocate indicated that he had difficulty knowing how it should be answered, but he eventually accepted that it would have to be answered in the negative. We were invited to answer question 4, in so far as it related to Article 6(1), in the negative and question 5 in the affirmative. In conclusion, we were asked to decide this reference on the basis of its own particular facts.
9. The advocate depute submitted that a court which was presided over by an honorary sheriff who had no legal qualifications was nevertheless a "tribunal" within the meaning of Article 6(1). In order to determine whether a decision-making body is a tribunal, regard must be had to the function of the body, and not its composition. Thus, the Parole Board is a tribunal within the meaning of Article 6(1). Reference was made to Weeks v. United Kingdom (1987) 10 E.H.R.R. 293: Belilos v. Switzerland (1988) 10 EHRR 466 and Clancy v. Caird 2000 S.C. 441, per Lord Coulsfield at page 460. In the present case it was clear that the court presided over by Mrs. Findlay on 19 July was a "tribunal" within the meaning of Article 6(1).
10. The advocate depute further submitted that it was an independent tribunal. In relation to Article 6(1) the primary meaning of "independent" involved independence from the parties and from the executive (Campbell & Fell v. United Kingdom (1984) 7 E.H.R.R. 165 at page 198). There was no suggestion that the executive was able to interfere in any way with the manner in which an honorary sheriff performed his or her judicial duties. It was not necessary for an honorary sheriff to be independent of the sheriff principal, as the sheriff principal was independent of the executive. It was necessary to look at the factual situation and the position was that no honorary sheriff had ever been removed as a consequence of his or her actions in court. On one occasion an honorary sheriff had resigned but he had done so after he had been involved in a drink-driving offence. The commission of an honorary sheriff continues even after the sheriff principal who made the appointment has died. The sheriff principal did not decide which cases were put out for hearing before an honorary sheriff. In the circumstances, when regard is had to the manner of appointment of honorary sheriffs and to their term of office, to the existence of guarantees against outside pressures and to the question whether they present an appearance of independence, it was submitted that a court presided over by an honorary sheriff can properly be considered to be independent (Bryan v.United Kingdom (1995) 21 E.H.R.R. 342 at paragraph 37). While in theory an honorary sheriff does not have security of tenure, regard must be had to the factual position. In practice an honorary sheriff did have security of tenure. While it was certainly the case that section 17 of the 1971 Act provided that an honorary sheriff "shall be entitled to exercise the powers and duties appertaining to the office of sheriff", and that, in terms of section 5, an honorary sheriff did not have to have any legal qualifications, the practice was that the use of honorary sheriffs without legal qualifications was very restricted. They did not preside at trials and were mainly used to preside in custody courts when a permanent sheriff was not available. It was clear that honorary sheriffs did give the appearance of independence.
11. The advocate depute invited us to answer the questions in the reference on the basis of the particular facts in the present case, and intimated that the Crown was not seeking any general guidance from the court as to the use which could be made of honorary sheriffs, and particularly honorary sheriffs without legal qualifications. With regard to question 1, it was submitted that Article 5(3) had no application to the circumstances of this case and that had been conceded on behalf of the appellant. Question 2 should be answered in the affirmative and question 3 should be answered in the negative. In that connection, the appellant had pled guilty and been sentenced. He had been arrested and had appeared in court on 19 July because of his failure to appear in answer to an order of the court. His appearance had nothing to do with the original charges and sentence. In any event, the fact that an honorary sheriff without legal qualifications had granted bail and dealt with a purely procedural step could not be said to have infringed the appellant's rights under Article 6. So far as question 4 was concerned, it was necessary to look at the provisions of the Convention and apply them to the facts of each particular case. So far as the facts of the present case were concerned, it would have made no difference whether the honorary sheriff who presided had been legally qualified or not. The advocate depute accepted that different considerations might arise if an honorary sheriff without legal qualifications had determined a criminal charge, but that issue did not arise in the present case. So far as question 5 is concerned, it should be answered in the negative as the appellant had appeared on a court warrant for a failure to appear, that warrant having been granted after conviction and sentence, by which time the procurator fiscal was functus. The procurator fiscal had no role to play, other than to attend in court in case the court required any assistance. In the circumstances it was clear that the proceedings on 19 July had not been in breach of the appellant's Convention rights.

Decision

12. As we have already indicated, and as was conceded on behalf of the appellant, his arrest fell within the terms of Article 1(c) and not 1(b) with the result that Article 5(3) has no application to the circumstances of the present case, and question 1 of the reference accordingly does not require to be answered.
13. The principal issues argued before us were whether the court presided over by the honorary sheriff, who was not legally qualified, on 19 July 2001 was a "tribunal" and, if it was, whether it was an independent tribunal, all within the meaning of Article 6(1). However, Article 6(1) only applies in a case where there is a determination of a criminal charge against an accused. In the present case the appellant had already been convicted and sentenced prior to 19 July. What the honorary sheriff did was to grant his application for bail and continue the case to a later date for a hearing before a permanent sheriff. In these circumstances, it was conceded on behalf of the appellant that the proceedings on 19 July  did not constitute the determination of a criminal charge. Question 3 therefore falls to be answered in the negative. As there was no determination of a criminal charge, Article 6(1) has no application in the circumstances of this case, and accordingly it is not necessary to answer Question 2, namely, whether the court on 19 July was a tribunal within the meaning of Article 6(1) and, if it was, whether it was independent. While we heard certain limited submissions on these issues, it seems to us that this is not an appropriate case in which to try to resolve them. We also find it unnecessary to answer Question 4, which is posed in the context of Article 5(3) and Article 6(1) of the Convention, neither of which apply in the circumstances of this case. We shall answer Question 5 in the negative on the basis that, in the end of the day, it was not maintained that the hearing on 19 July resulted in a breach of the appellant's rights under Article 5(3) or Article 6(1).
14. We were invited by both parties to deal with this reference solely on the basis of the facts of the case, and we were not asked to give any general guidance as to the circumstances in which it might be appropriate to use the services of an honorary sheriff, particularly one who has no legal qualifications. In the circumstances we propose to leave the issue of whether a court presided over by an honorary sheriff who is not legally qualified is an independent and impartial tribunal to be decided, if necessary, in a more appropriate case, where the matter can be fully argued.
15. Accordingly we will answer questions 3 and 5 in the negative. Question 1 is conceded to be inapplicable and we shall find it unnecessary to answer questions 2 and 4.