Scottish High Court of Justiciary Decisons

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Cite as: 2006 GWD 33-689, [2006] HCJAC 74, [2006] ScotHC HCJAC_74, 2006 SCCR 637, 2006 SLT 1027

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APPEAL COURT, HIGH COURT OF JUSTICIARY

[2006] HCJAC 74

Appeal Nos: XC467/03

XJ142/03

XJ141/03

Lord Macfadyen

Lord Abernethy

Lord Philip

OPINION OF THE COURT

delivered by LORD MACFADYEN

(1) NOTE OF APPEAL AGAINST CONVICTION AND SENTENCE

KENNETH DICKSON

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent;

(2) STATED CASE

ARCHIBALD McHALE

Appellant;

against

PROCURATOR FISCAL, DUMBARTON

Respondent;

and

(3) BILL OF SUSPENSION

IAIN McNAUGHTON

Complainer;

against

PROCURATOR FISCAL, PAISLEY

Respondent.

_______

Act (Dickson and McHale): Shead, C. Mitchell; Drummond Miller, W.S.

Act (McNaughton): Shead; Drummond Miller, W.S..

Alt: Graham, A.D.; Crown Agent.

11 October 2006

Introduction

[1] In each of these three appeals the appellant was convicted by (or by a court presided over by) a temporary sheriff, and thereafter sentenced by a temporary sheriff. The convictions took place, and the sentences were imposed, prior to the commencement of the Scotland Act 1998 (the Scotland Act). It is not disputed that, had the convictions taken place and the sentences been imposed after the commencement of the Scotland Act, they would (subject to any question of waiver or acquiescence) have been invalid on the ground that a temporary sheriff is not an independent and impartial tribunal as guaranteed by article 6 of the European Convention on Human Rights (the Convention), and the prosecutions to conviction and sentence would therefore have been ultra vires of the Lord Advocate in terms of section 57(2) of the Scotland Act (Starrs v Ruxton 2000 JC 208). These appeals raise the as yet undecided question whether the same result follows in a case where the conviction and sentence took place before the commencement of the Scotland Act, either on the basis that the provisions of the Convention can be applied retrospectively to proceedings that took place before the Lord Advocate's powers were circumscribed by reference to the Convention, or on the basis that at common law a temporary sheriff was not an independent and impartial tribunal, and that trial before and sentence by a temporary sheriff was therefore contrary to the principles of natural justice.

[2] In the case of Kenneth Dickson, the appeal against conviction has been abandoned (although the possibility of resuscitating it is under consideration, and that possibility is not to be regarded as prejudiced by this decision), but the appeal against sentence is maintained. In the cases of Archibald McHale and Iain McNaughton the appeals are against conviction and sentence.

[3 ] In each case the Crown intimated that it intended to argue that, if the conviction and/or sentence were open to challenge on grounds relating to the fact that the proceedings had taken place before a temporary sheriff, the challenge should fail because the appellant had acquiesced in that fact. On 28 April 2006 the court appointed the appeals to a hearing solely on the question of acquiescence. That hearing took place on 1 and 2 August 2006.

The chronology of relevant events

[4 ] An agreed chronology of events was laid before the court, and it is convenient to take note of it at this stage. Before recording the sequence of events peculiar to each appeal, we summarise the chronology of the development of the law.

(a) The development of the law

[5 ] The Scotland Act came into force on 20 May 1999. On 11 November 1999 the decision of this court in Starrs v Ruxton was issued, holding that a temporary sheriff was not an independent and impartial tribunal, as guaranteed by article 6 of the Convention, and that consequently, by virtue of section 57(2) of the Scotland Act, the prosecution of an accused person before a temporary sheriff was an act which was ultra vires of the Lord Advocate. On 2 October 2000 the Human Rights Act 1998 came into force. On 24 July 2001 the decision of the Judicial Committee of the Privy Council in Millar v Dickson 2002 SC (PC) 30 was issued, affirming that the right to a trial before an independent and impartial tribunal could be waived, but only if all the relevant circumstances were known to the appellant and the waiver was voluntary and unequivocal. On 19 March 2002 this court decided in Lochridge v Miller 2002 SLT 906, 2002 SCCR 628 that a convicted person might acquiesce in having been convicted and sentenced by a temporary sheriff. On 6 February 2006 the Judicial Committee of the Privy Council held, in Robertson v Higson 2006 SC (PC) 22, that Lochridge v Miller was correctly decided, and affirmed the availability of the plea of acquiescence as a bar to suspension of a conviction or sentence on the ground that the proceedings had taken place before a temporary sheriff.

(b) The procedural history of Dickson's case

[6] On 21 February 1998 the crime of assault to severe injury and permanent disfigurement of which the appellant, Kenneth Dickson, was subsequently convicted was committed. A first diet took place on 16 February 1999, at which the appellant pled not guilty. After various adjournments, the trial took place before a temporary sheriff and a jury on 10 March 1999. The appellant was convicted by a majority verdict, and was sentenced to 18 months imprisonment.

[7 ] On 5 July 1999 an appeal was marked against conviction on the ground of misdirection of the jury. On 15 July 1999 the appellant was granted interim liberation. On 23 November 1999 leave to appeal was granted under section 107 (1) of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act). The judge who granted leave commented in writing: "Particularly since the sheriff was a temporary one". On 30 January 2001 the appellant lodged an additional ground of appeal (No. 1A) to the effect that the sentence was incompetent on the ground that it had not been imposed by an independent and impartial tribunal. The covering letter referred back to the sifting judge's comment.

[8 ] At a procedural hearing on 25 September 2001 a continuation was granted on defence motion with a view to the tendering of grounds of appeal arguing that the Human Rights Act was retrospective in effect and that the conviction was therefore invalid in respect that the trial had been before a temporary sheriff. On 28 September 2001 a further continuation of two weeks was allowed for the preparation of those additional grounds of appeal. On 12 October 2001 the court allowed additional grounds of appeal (No. 1B) to be received. These grounds of appeal related to the conviction, and advanced arguments under section 57(2) of the Scotland Act, section 6(1) of the Human Rights Act, and on the basis of the rules of natural justice. At the suggestion of the court, a devolution minute was lodged on 18 October 2001.

[9 ] Nothing material occurred in 2002, 2003 or 2004. Between March 2005 and March 2006 various procedural hearings took place. Notice of abandonment of the appeal against conviction was lodged in November 2005. On 23 March 2006 the outstanding appeal against sentence was conjoined with those of McHale and McNaughton.

(c) The procedural history of McHale's case

[10 ] The offence of which Archibald McHale was subsequently convicted (theft by housebreaking) was committed on 16 October 1998. On 19 October he appeared in Dumbarton Sheriff Court and pled not guilty. At an intermediate diet on 23 December he confirmed that plea. After various adjournments, the trial took place on 30 March 1999 before a temporary sheriff. The appellant was convicted. On 18 May 1999 the temporary sheriff imposed a probation order of twelve months duration, with a condition that the appellant perform 80 hours unpaid work in the community.

[11 ] On 25 May 1999 the appellant applied for a stated case on grounds relating to questions of corroboration and mens rea and in relation to sentence. On 27 May the condition requiring the performance of unpaid work was suspended ad interim. Leave to appeal against conviction and sentence was granted under section 180(1) of the 1995 Act on 29 July 1999. A procedural hearing took place on 4 April 2000, and was continued.

[12 ] On 23 November 2001 an application was lodged under section 182(3) of the 1995 Act for leave to argue additional grounds of appeal. These raised the issue of the consequences of the fact that the conviction and sentence had been pronounced by a temporary sheriff, in terms of both section 57(2) of the Scotland Act and section 6(1) of the Human Rights Act. A corresponding devolution minute was lodged on 30 November. At a procedural hearing on 6 March 2002 this court allowed the additional grounds of appeal and the devolution minute to be received. The appeal was continued to await the outcome of another case, Brown and Others, which also raised the issue of whether the Convention was of retrospective effect. The appeal in Brown and Others took place a few days later, but the issue of retrospectivity was abandoned.

[13 ] The appeal was set down for hearing on 14 December 2005. On that date the hearing was discharged, to await the outcome of Robertson v Higson before the Judicial Committee of the Privy Council, and to ascertain whether it was appropriate to remit the case to a full bench on the issue of the retrospectivity of the Convention. At that stage the Crown for the first time raised the possibility of arguing that the appellant had acquiesced in the fact that he had been convicted and sentenced before a tribunal which was not independent and impartial.

(d) The procedural history of McNaughton's case

[14 ] The offences of which Iain McNaughton was subsequently convicted, namely (1) a charge of contravening section 5(1)(a) of the Road Traffic Act 1988 (drink driving) and (2) a charge of contravening section 47(1) of that Act (failure to have an MoT certificate), were committed on 13 April 1998. Pleas of not guilty were tendered on 4 November 1998. Those pleas were repeated at an intermediate diet on 29 December 1998. At a trial diet on 12 January 1999, before a temporary sheriff, the appellant pled guilty to charge (2), and the trial proceeded in respect of charge (1). At a continued trial diet on 3 March 1999 the appellant was convicted of charge (1). The temporary sheriff, in respect of charge (1), fined the appellant £300 and disqualified him from holding or obtaining a driving licence for one year, and in respect of charge (2), admonished him.

[15 ] On 10 March 1999 the appellant applied for a stated case on grounds relating to the sufficiency of the evidence. The agreed chronology does not indicate on what date leave to appeal was granted, but on 3 June 1999, in the light of leave having been granted, the disqualification was suspended ad interim. On 2 September 1999 this court remitted to the sheriff to clarify a certain aspect of the evidence. The sheriff's supplementary note was provided on 21 September. On 19 January 2000, the appeal by stated case was heard and refused.

[16 ] On 22 June 2000 the appellant served a Devolution Minute, appended to which was a copy of a proposed Bill of Suspension, on the Lord Advocate and the Advocate General. On 5 July warrant was granted for service of the Bill of Suspension. The Bill averred that the temporary sheriff was not an independent and impartial tribunal within the meaning of Article 6 of the Convention, and that it had therefore been ultra vires of the Lord Advocate to proceed to trial, and was ultra vires of him to seek to support the conviction. Reference was also made to section 6 of the Human Rights Act, and it was also maintained that since the temporary sheriff was not an independent and impartial tribunal, justice could not have been seen to be done at the trial.

[17 ] On 9 July 2002 the appellant paid the fine in full. On 9 December 2005 the court allowed an amended Bill of Suspension to be received. A further devolution minute was also received. The appeal was conjoined with that of McHale. At the appeal hearing on 14 December 2005 the matter proceeded in the way set out in paragraph [13] above.

Submissions for the Crown

(a) The law

[18 ] The Advocate depute began her submissions on the applicable case law by submitting that acquiescence is a set of circumstances from which an inference may be drawn of consent to an act or course of action so as to bar challenge of what would otherwise have been an infringement of rights. Reference was made to Low v Rankine 1917 JC 39 where Lord Anderson said (at 41):

"A general rule, it seems to me, has been laid down by a number of authorities to the effect that, if a person convicted of crime is of opinion that he has been unjustly convicted, then his duty is to seek a remedy against the alleged unjust conviction as expeditiously as possible; and that, if he delays unduly to seek the remedy, he will be held barred by the delay from proceeding to raise the suspension which he attempts to bring."

[18 ] The Advocate depute then referred to the decision in Starrs v Ruxton. That decision resulted in the cessation of the use of temporary sheriffs, and considerable changes in the working practices of the sheriff courts. The decision and its implications were well known in the legal profession. As a result, a number of appeals were taken on the ground that the conviction or sentence had been by a temporary sheriff in contravention of Article 6. By the time of the decision of the Judicial Committee of the Privy Council in Millar v Dickson on the question of waiver there were over 70 outstanding appeals on such grounds. In the light of the decision in Millar v Dickson, the Crown reviewed the outstanding appeals. The Crown took a policy decision, in summary cases (1) to concede those appeals, without pleading acquiescence, in all cases where (i) the appeal was already in subsistence, (ii) the appropriate grounds of appeal had been lodged or intimated, (iii) there had been a conviction or plea of guilty before a temporary sheriff, and (iv) the conviction had taken place between 20 May 1999 (the date of commencement of the Scotland Act) and 11 November 1999 (the date of the decision in Starrs v Ruxton; and (2) not to seek authority for a fresh prosecution in those cases. In solemn cases, individual decisions were taken. Thereafter, any appeals on the ground that the conviction or sentence had been the result of a decision by a temporary sheriff, where the conviction or sentence antedated the commencement of the Scotland Act or the appeal was not lodged until after the Privy Council decision in Millar v Dickson, were resisted, as appropriate, on the merits or on the ground of acquiescence. It was on that basis that the present appeals were resisted.

[19 ] Lochridge v Miller was an example of that approach in a case where the bill of suspension was not lodged until after the decision in Millar v Dickson. The Crown opposed the bill on the ground that there had been acquiescence. The complainer's argument that he did not have the necessary knowledge of his right to challenge his conviction until Millar v Dickson had been decided was rejected. Lord Coulsfield said (at 908, paragraph 12):

"In the circumstances of this case, it does not seem to us that the fact that the complainer or his solicitor did not know that a challenge would be unopposed, or that it would succeed, or even that they thought that it would not succeed, should excuse the failure to raise the challenge promptly, once the grounds were clearly established by the decision in Starrs v Ruxton. It was obvious from that point that there was an opportunity to challenge the conviction. The grounds on which the challenge could be made were fully known and the fact that there might be a counter-argument does not, in our view, provide a sufficient reason for not taking action."

[20 ] The cases of Robertson, O'Dalaigh and Ruddy (reported together as Robertson v Higson) were further examples of appeals lodged after the decision in Millar v Dickson and opposed on the ground of acquiescence. They were referred to a full bench, then appealed to the Judicial Committee of the Privy Council. There emphasis was laid on the public interest in the finality of criminal proceedings. Lord Hope of Craighead said (at paragraph 8):

"Criminal prosecutions are conducted in the public interest. The factors that have guided judges as to how the principles [of waiver and acquiescence] should be applied in criminal cases are appropriate to that context. As the Lord Advocate pointed out in his submissions to the Board in this case, these factors are heavily influenced by public policy. The considerations operate at large, embracing the need to protect the accused against injustice on the one hand and the need to uphold public confidence in the rule of law on the other. Public policy demands that the accused must be afforded a remedy against injustice. But it also requires the court to balance the rights of the accused against the public interest. ... It is a question of where the balance is to be struck, bearing in mind that the public interest lies in the finality of criminal proceedings. The longer the accused delays in raising his objection when he has become aware of it, the stronger is the public interest in the argument that the objection has been acquiesced in."

(b) The facts - Dickson

[21 ] The conviction took place and the sentence was imposed on 10 March 1999. In so far as the appeal now proceeds on grounds relating to the fairness at common law of the proceedings before a temporary sheriff, that issue could have been raised immediately. When an appeal was marked in July 1999, that point was not taken. After the decision in Starrs v Ruxton in November 1999, the appellant ought to have been aware that a sheriff was not an independent and impartial tribunal in terms of Article 6. The judge granting leave to appeal later in November 1999 drew attention to the fact that the proceedings had been before a temporary sheriff. Despite that, it was not until 30 January 2001 that the appellant sought to challenge the sentence on that ground. Although no longer directly relevant, because of the abandonment of the appeal against conviction, the point was not taken as a ground for appeal against conviction until October 2001. In these circumstances there had been a failure to raise promptly the grounds now sought to be relied upon. The plea of acquiescence should be upheld and the appeal dismissed.

(c) The facts - McHale

[22 ] The conviction in this case took place on 30 March 1999 and the sentence was imposed on 18 May 1999. The argument that the proceedings before the temporary sheriff were unfair at common law could have been raised immediately thereafter by bill of suspension. That was not done. An application for a stated case was made promptly, but did not raise the point. Following the decision in Starrs v Ruxton nothing was done to raise the point of non-compliance with Article 6, by bill of suspension or by seeking leave to argue additional grounds of appeal in the stated case, until 23 November 2001. In these circumstances, there had been a failure to raise the point promptly. The plea of acquiescence should be sustained and the appeal dismissed.

(d) The facts - McNaughton

[23 ] The conviction and sentence in this case took place on 3 March 1999. Again the common law point could have been raised immediately by bill of suspension. That was not done. The application for a stated case was promptly made, but did not raise the issue. The stated case was still pending when Starrs v Ruxton was decided. The appeal was heard on 19 January 2000. The point was not raised at that stage. The bill of suspension was not lodged until June 2000. The complainer served the full period of disqualification from driving. Interim suspension pending the bill of suspension was not sought. He paid his fine in full in July 2002. In these circumstances there had been a failure to raise promptly the issues now sought to be relied on. The plea of acquiescence should be sustained and the appeal dismissed.

Submissions for the appellants

[24 ] Mr Shead, for the appellants, attacked the Crown's plea of acquiescence at a number of levels. At the most fundamental level, the proposition which he advanced was that, since there had been no decision by this or any other court to the effect that a decision by a temporary sheriff, reached before the commencement of the Scotland Act, was invalid, the appellants could not have the necessary knowledge that they had ground for challenge of their convictions and sentences to support the inference that, in not taking the point earlier than they did, they had evinced a voluntary, informed and unequivocal acceptance of the convictions and sentences as valid despite the existence of ground for challenge. In other words, in the absence of any previous decision on the question of the retrospectivity of Article 6, it was impossible to find any basis for a plea of acquiescence.

[25 ] Mr Shead referred to various passages in the opinions of Lord Bingham of Cornhill and Lord Hope of Craighead in Miller v Dickson in order to identify the nature of the plea of waiver (and, by analogy, of the plea of acquiescence), and the knowledge which an appellant must possess before he is vulnerable to such a plea. At page 43E (paragraph 31), Lord Bingham said:

"In most litigious situations the expression 'waiver' is used to describe a voluntary, informed and unequivocal election by a party not to claim a right or raise an objection which it is open to that party to claim or raise. In the context of entitlement to a fair hearing by an independent and impartial tribunal, such is in my opinion the meaning to be given to the expression. ... In Pfeifer and Plankl v Austria [(1992) 14 EHRR 692] there was held to be no waiver where a layman had not been in a position to appreciate completely the implications of a question he had been asked (paragraph 38, page 713). In any event, it cannot meaningfully be said that a party has voluntarily elected not to claim a right or raise an objection if he is unaware that it is open to him to make the claim or raise the objection."

Later, at page 45C (paragraph 34) Lord Bingham rejected the proposition that in general knowledge of the law will be imputed to an accused person, and observed:

" ... ignorance of the law will not excuse unlawful conduct; but it cannot suffice to found a plea of waiver".

At page 45D (paragraph 35) he added:

"That there is no waiver where a party relies on what is reasonably understood to be the law at the relevant time is not because such conduct is reasonable (although it plainly is) but because the party lacks the knowledge necessary to make an informed choice."

[26] In the present cases, Starrs v Ruxton may be regarded as providing part, but only part, of the knowledge necessary for the appellants to make an informed choice as to whether to challenge the validity of their convictions and sentences. It provided the information that a temporary sheriff was not an independent and impartial tribunal, as guaranteed by Article 6. It provided the information that as a result, after the commencement of the Scotland Act, proceedings before a temporary sheriff were ultra vires of the prosecutor and on that account invalid and open to challenge. It did not, however, provide knowledge that proceedings before a temporary sheriff, before the commencement of the Scotland Act, were invalid and open to similar challenge, either on the basis that Article 6 was of retrospective effect or on the basis that such proceedings were invalid at common law. The question of invalidity at common law had been raised and rejected in Marshall v Ritchie, one of the cases heard in this court along with Millar v Dickson 2000 JC 648. Marshall's conviction antedated the commencement of the Scotland Act. His case was pled in a way that did not raise a devolution issue, and was therefore not appealed to the Judicial Committee of the Privy Council. The challenge to the validity of his conviction at common law was therefore rejected finally in this court (per Lord Prosser at 664-665, paragraphs 40 to 42). There has been no decision on the retrospectivity of Article 6 in the context of proceedings before temporary sheriffs. The point had been abandoned in Brown and Others. The general issue of retrospectivity had been considered in a number of House of Lords decisions in England (see Clayton and Tomlinson, The Law of Human Rights, Second Annual Updating Supplement, paragraph 3.75A and the cases there discussed; see also Hoekstra v H. M. Advocate (No. 6) 2002 SCCR 135 at 197, paragraph 117), but the position was complex and the authorities could not be held to provide an accused person with knowledge that proceedings before a temporary sheriff prior to the commencement of the Scotland Act could be challenged on the basis that they were invalid by retrospective application of the Convention. There was thus no sufficient basis for concluding that the appellants knew that there was ground for challenging their convictions and sentences, either at common law or by retrospective application of the convention, and therefore no sufficient basis for inferring that their failure to challenge the validity of their convictions and sentences on these grounds earlier than they did was an informed choice which would support the plea of acquiescence. There was thus no sufficient basis for the Crown's plea of acquiescence in the present appeals.

[27 ] In relation to Dickson's case, Mr Shead advanced an argument which turned on the terms in which leave to appeal had been granted under section 107(1) of the 1995 Act. Section 107(1)(a) provides that the sifting judge shall:

"if he considers that the documents mentioned in subsection (2) below disclose arguable grounds of appeal, grant leave to appeal and make such comments in writing as he considers appropriate."

Section 107(7) provides that:

"Comments in writing under subsection (1)(a) ... above may, without prejudice to the generality of that provision, specify the arguable grounds of appeal (whether or not they are contained in the note of appeal) on the basis of which leave to appeal is granted."

The grounds of appeal in the note of appeal made no reference to the challenge to the validity of the conviction and sentence on the ground that the proceedings had taken place before a temporary sheriff. The sifting judge, however, had commented: "Particularly since the sheriff was a temporary one". That was to be construed in the light of section 107(1)(a) and (7). The comment fell to be construed as the identification by the sifting judge of the fact that the sheriff had been a temporary one as an arguable ground of appeal, albeit one not mentioned in the note of appeal. The appellant thus had leave to argue against his conviction and sentence on the ground that the proceedings had been before a temporary sheriff. Thus, no period of time after the grant of leave on 23 November 1999 could be taken into account in support of a plea of acquiescence. On that ground too, the plea of acquiescence must fail in Dickson's case.

[28 ] More generally, in a submission which applied to both Dickson's and McHale's cases, Mr Shead submitted that the plea of acquiescence was not available in relation to statutory appeals, whether by note of appeal in respect of a conviction in solemn proceedings, or by stated case in relation to a summary conviction. The cases in which waiver or acquiescence had been discussed all took the form of bills of suspension or advocation (Millar v Dickson; Lochridge v Miller; Robertson v Higson). It was particularly clear from the leading opinion of Lord Rodger of Earlsferry in Robertson v Higson that the issue of acquiescence was discussed in terms of the remedy of suspension (see paragraphs 28 et seq.). The reasoning thus did not apply to cases where the appeal took one or other of the statutory forms. In the context of statutory appeals it was for the court to decide whether or not leave to appeal should be granted in the first instance (sections 107(1) and (5) and 180(1) and (5) of the 1995 Act), and whether, if leave was granted, the appellant should be allowed to argue an additional ground not contained in the note of appeal or application for a stated case (sections 110(4) and 182(3)). In the present cases, leave to argue additional grounds of appeal had been sought and granted, in Dickson's case on 30 January 2001 in respect of sentence and on 12 October 2001 in respect of conviction, and in McHale's case on 6 March 2002. The Crown had not opposed the applications, and the court had exercised its discretion in favour of allowing the additional arguments to be advanced. In these circumstances, there could be no question of acquiescence.

[29 ] In any event, Mr Shead submitted that there had been no such delay in any of the present cases as would be capable of yielding an inference of acquiescence. He submitted that the delays in the procedure in relation to the appeals were the responsibility of the Court, not the fault of the appellants. He acknowledged that parts of the delay arose from a desire to await the outcome of other similar cases in this court or in the Privy Council. In Dickson's case, following the grant of leave to appeal on 23 November 1999, the case did not call in court until the procedural hearing on 25 September 2001. During that period, the additional ground of appeal in respect of sentence was lodged on 30 January 2001. Mr Shead informed us that those instructing him hold a file note vouching that that was done in response to a telephone call from Justiciary Office drawing attention to the sifting judge's comment and indicating that an additional ground of appeal in respect of the validity of the proceedings before the temporary sheriff would be accepted if tendered. The temporary sheriff issue, as a ground of appeal against conviction, was mooted at the procedural hearing on 25 September 2001 and in the result additional grounds of appeal were allowed on 12 October 2001. In McHale's case, leave to appeal having been granted on 29 July 1999, no procedural progress was made until a procedural hearing on 4 April 2000. According to an affidavit by the appellant's solicitor, that hearing was continued to enable certain doubts as to the merits entertained by counsel then acting to be clarified. Counsel raised the question of the validity of proceedings before the temporary judge in correspondence with the solicitors dated 10 April 2000. He indicated that a number of cases raising the point were awaiting hearing. The solicitors took the matter up with Justiciary Office, but that seems to have led to no conclusive result. Eventually additional grounds of appeal were lodged on 23 November 2001, and allowed by the court at a procedural hearing on 6 March 2002. In McNaughton's case the temporary sheriff issue was not raised until after the stated case was refused on 19 January 2000. Steps were then taken to do so. It is not clear from the appellant's affidavit when legal aid was applied for, but the Scottish Legal Aid Board requested sight of the draft bill of suspension on 16 February 2000. Counsel was instructed, and the draft bill and counsel's opinion were received by the solicitors on 4 April 2000. Legal aid was granted on 15 May, the devolution minute was intimated on 22 June and warrant for service of the bill was granted on 5 July 2000. In general, it was more difficult to draw an inference of acquiescence in cases where, during the period when the issue in question was not raised, the appellant had pending an appeal challenging the conviction or sentence on other grounds. Indeed, Mr Shead went so far as to submit that the dependence of an appeal, whatever the grounds and whether they addressed the merits or the validity of the conviction or sentence, was sufficient to exclude acquiescence. The present cases were in that respect distinguishable from Robertson, O'Dalaigh and Ruddy. Assuming, contrary to the primary submission, that the plea of acquiescence was available in the present cases, an examination of the relevant circumstances showed that it had not been made out.

[30 ] Finally, Mr Shead submitted that the Crown was barred from maintaining the plea of acquiescence. In Dickson's case the point based on the fact that the conviction and sentence had taken place in proceedings before a temporary sheriff had been made in additional grounds of appeal lodged in January 2001 (in relation to sentence) and in October 2001 (in relation to conviction). In McHale's case, the additional grounds of appeal were lodged on 23 November 2001. In McNaughton's case, the bill of suspension was raised in July 2000. It was the failure to bring the point forward prior to those respective dates that was said to yield in each case the inference of acquiescence. The plea of acquiescence could and should have been brought forward as ground for opposition to the allowance of the additional grounds in Dickson's and McHale's cases, and in answers to the bill of suspension in McNaughton's case. In the event, the plea of acquiescence was not advanced until December 2005. The failure to mention the plea earlier yielded the inference that the Crown had elected not to plead acquiescence. To support the proposition that the Crown could bar itself from taking a particular position, reference was made to Thom v H. M. Advocate 1976 JC 232.

Response for the Crown

[31 ] The Advocate depute submitted that Mr Shead's last argument was circular. If the Crown was barred from arguing acquiescence because the point had not been taken until December 2005, the appellants were barred from arguing that the Crown was barred, because they had not raised the point until it was made in Mr Shead's written submissions tendered in April 2006. There was, in any event, no obligation on the Crown to formulate its argument until the hearing (or until earlier required by the court). With hindsight, it might have been better for the Crown to oppose the additional grounds of appeal when they were tendered, but that did not bar the acquiescence argument. Thom was distinguishable; it was concerned with the abandonment of the right to prosecute, and there had been an unequivocal public statement of the Lord Advocate's position.

[32 ] The Advocate depute submitted further that Mr Shead was wrong to submit that acquiescence was available only in common law modes of review. It was a general principle, applicable whatever the form of proceedings was (Robertson v Higson, per Lord Hope of Craighead at paragraph 8; Lochridge v Miller, per Lord Coulsfield at paragraph 5). The appellants should not be allowed to avoid the plea of acquiescence by a tactical choice of the form of procedure.

Discussion

[33 ] In our opinion, the appellants' submission that they did not have the knowledge necessary to render them vulnerable to the plea of acquiescence is well founded. The question of the knowledge necessary to found a plea of bar was discussed in greater detail in relation to waiver in Millar v Dickson than in relation to acquiescence in Robertson v Higson, but that simply reflected the distinct issues raised in these cases. In Robertson v Higson Lord Rodger of Earlsferry said (at 36, paragraph 45):

"The effect of waiver is to prevent there being any violation of the accused's Art 6(1) rights. Acquiescence is not, and could not be, some form of retrospective healing of the breach which has taken place. To that extent I accept the appellants' argument. But it does not matter since, according to the accepted analysis, acquiescence operates somewhat more simply. A person who acquiesces in his conviction and sentence, even though he knows that they are open to challenge, thereby loses his right to have the High Court redress the wrong by suspending the conviction and sentence. Without that redress, the conviction and sentence stand, even though there has been an infringement of the convicted person's Art 6(1) rights " (emphasis added).

The central role of the appellant's knowledge in the plea of acquiescence is also clear from the opinion of Lord Hope of Craighead, in the passage in which he emphasised the public interest in the finality of criminal proceedings. His Lordship said (at 26, paragraph 8):

"The longer the accused delays in raising his objection when he has become aware of it, the stronger is the public interest in the argument that the objection has been acquiesced in" (emphasis added).

It cannot be taken from his Lordship's observations that a plea of acquiescence can, because of the public interest in finality, be taken against an appellant who was not aware that there was a basis for challenge to the validity of his conviction or sentence. We therefore proceed on the basis that for the plea of acquiescence to be maintainable the appellant must be shown to have had, during the period of delay relied upon, knowledge of the basis for his objection.

[34 ] There is nothing in Robertson v Higson to suggest that there is any difference between the nature and quality of the knowledge necessary to support a plea of waiver and the nature and quality of the knowledge necessary to support a plea of acquiescence. The difference between the two pleas (apart from the difference in the manner in which they operate, noted by Lord Rodger in Robertson v Higson at paragraph 45), is that in a case of waiver the knowledge must be possessed before the allegedly invalid decision is made, whereas the plea of acquiescence is available when the knowledge only arises after that decision has been made. We therefore consider it appropriate to be guided by what was said about the role of knowledge in a plea of waiver in Millar v Dickson. Accordingly, adapting to the plea of acquiescence the observations of Lord Bingham of Cornhill in Millar v Dickson at paragraph 31, the circumstances founded upon in support of the plea must yield an inference that the appellant has elected not to advance the challenge to the validity of the decision in question, and that that election has been "voluntary, informed and unequivocal". As Lord Bingham pointed out (paragraph 31):

"... it cannot meaningfully be said that a party has voluntarily elected not to claim a right or raise an objection if he is unaware that it is open to him to make the claim or raise the objection".

Further, paraphrasing Lord Bingham's observation at paragraph 35, there is no waiver when a party relies on what is reasonably understood to be the law at the relevant time, because the party lacks the knowledge necessary to make an informed choice.

[35 ] It is therefore necessary to examine the knowledge on the part of the appellants on which the Crown relies in advancing the plea of acquiescence. It seems to us that part of the necessary knowledge is knowledge of the decision, and the basis for the decision, in Starrs v Ruxton. But we do not consider that that knowledge is a sufficient foundation for a plea of acquiescence in the present cases. Starrs v Ruxton established that a temporary sheriff was not an independent and impartial tribunal, as guaranteed by Article 6 of the Convention. But, the reasoning continued by holding that, once the Scotland Act was in force, section 57(2) of that Act rendered it ultra vires of the Lord Advocate to prosecute an accused person to conviction and sentence before a tribunal that was not Article 6 compliant, and thus before a temporary sheriff. That part of the reasoning in Starrs v Ruxton, so far from providing knowledge on the part of the present appellants that they had a basis for challenging their convictions and sentences, pointed strongly to the absence of such knowledge. It was only after the commencement of the Scotland Act that the Lord Advocate's powers were constrained by reference to the Convention, and that was of no assistance to the appellants.

[36 ] In Lochridge v Miller it was indicated that the existence of a counter-argument would not exclude the plea of acquiescence (per Lord Coulsfield at paragraph 7). That is not, however, the situation in the present cases. Here the factor of which knowledge is lacking is an essential part of the foundation of the case which the appellants now seek to make.

[37 ] We accept that such discussion as there has been of the question of the retrospective applicability of the Convention is not clear and decisive enough to be founded on as providing a basis for such knowledge as would support a plea of acquiescence against the appellants. Scarcely surprisingly, the Advocate depute did not argue otherwise.

[38 ] We are therefore of opinion that Starrs v Ruxton did not provide a basis for inferring that the appellants knew at the material time (i.e. in the period prior to their advancing grounds of appeal relating to the validity of the decisions of the temporary sheriffs) that there was a basis for such a challenge to their convictions and sentences. Nor, in our view, has there been shown to be any other basis for knowledge that a decision by a temporary sheriff, made before the commencement of the Scotland Act, was invalid for want of compliance with Article 6 of the Convention.

[39 ] If the question of a common law basis for challenge to the temporary sheriffs' decisions is approached in the same way, we accept that the law as it presently stands is as expressed by Lord Prosser in Marshall v Ritchie (Millar v Dickson 2000 JC 648 at paragraphs 40 to 42). On that approach, there is no basis for knowledge on the appellants' part, during the period material to the plea of acquiescence, that a common law ground of challenge was available to them.

[40 ] We are therefore of opinion that the Crown plea of acquiescence falls to repelled because the circumstances do not disclose that the appellants during the relevant period had the requisite knowledge of the availability of the grounds of challenge to the validity of the temporary sheriffs' decisions which they now maintain to enable it to be inferred that they made an informed decision not to take the point.

[41 ] That is sufficient for disposal of the issue of acquiescence, which was the sole subject of the hearing before us. Since other arguments were advanced, however, it is appropriate that we should express briefly our views on them.

[42 ] We deal first with the argument, in Dickson's case, that the sifting judge's comment amounted to leave to appeal on the ground that the decision was taken by a temporary sheriff. We accept that in terms of section 107(7) of the 1995 Act the sifting judge may, by making a comment in writing under section 107(1), give leave to appeal on a ground not contained in the note of appeal. Whether a comment has that effect is, however, a matter of interpretation. Here, the sifting judge had before him a note of appeal which was concerned solely with allegations of misdirection. The comment was: "Particularly since the sheriff was a temporary one". The comment was made less than two weeks after the decision in Starrs v Ruxton. We think it likely that the sifting judge was prompted to make the comment he did by the topicality of the question of the validity of decisions by temporary sheriffs. We do not think, however, that it would be right to attribute to the sifting judge a decision that, despite the fact that the conviction and sentence had antedated the commencement of the Scotland Act, there was an arguable case that it was open to challenge on the ground that the temporary sheriff was not an Article 6 compliant tribunal.

[43 ] Next, we turn to the argument, applicable to Dickson's and McHale's cases, that the plea of acquiescence is not available in cases where the appeal takes one of the statutory forms, and is confined to cases brought by bill of suspension (or bill of advocation). That argument is in our opinion contrary to principle. It is true that the leading modern cases on waiver and acquiescence have taken the form of bills of suspension or advocation. It is also true that in Robertson v Higson Lord Rodger of Earlsferry's reasoning is expressed in terms of the remedy of suspension. But it does not in our opinion follow that acquiescence is not available as a defence to a statutory appeal. So to hold would mean that the availability of a substantive defence to an appeal was dependent on the form of appeal adopted. That would in our view be unsatisfactory. But acquiescence, like waiver, is part of the law of personal bar, which applies both in civil and in criminal proceedings. It is an instance of the general principle that a party, having advisedly and unequivocally adopted one position, may be barred from subsequently changing his position. There is in our opinion no reason for refusing to apply that principle in relation to appeals in solemn procedure or by way of stated case. Part of Mr Shead's argument on this point was that the court, by granting leave to argue additional grounds of appeal, precluded subsequent resort to a plea of acquiescence. We do not consider that that is correct. By granting leave to advance a particular argument, the court does not endorse the proposition that there is no available counter-argument.

[44 ] We turn now to the submission that there was in these cases no such delay as would support the inference of acquiescence, even if the appellants had the requisite degree of knowledge at the relevant time. Although there has undoubtedly been long delay in these cases, we do not consider it fair to treat that delay, as Mr Shead did, as being wholly the responsibility of the court, to the exclusion of any responsibility on the part of the appellants. The information before us does not enable us to analyse the delay in detail, but it seems clear that in substantial part it resulted from awaiting the outcome of similar cases. Be that as it may, however, we are not persuaded that in these cases there would have been a basis for a plea of acquiescence, even if the appellants had had at the relevant time the necessary knowledge of the ground of their challenge to the validity of the temporary sheriff's decisions. We do not accept Mr Shead's submission in its extreme form, namely that there can be no question of acquiescence while an appeal in some form, whether challenging the merits or the validity of the decision in question, is in dependence. But we do accept that it is more difficult to draw an inference of acquiescence from delay while an appeal is in dependence. Had we dealt with Mr Shead's primary submission differently, we would not have felt able to conclude that the appellants had in the circumstances made a voluntarily and unequivocal election not to take the point relating to the validity of decisions of temporary sheriffs. We find the Crown position in relation to McNaughton's case particularly difficult to understand. Having regard to the policy adopted by the Crown following the decision in Millar v Dickson laid before us by the Advocate depute and summarised in paragraph [18] above, it seems to us that it is understandable that McNaughton's case was opposed on its merits, on the basis that the temporary sheriff's decisions antedated the commencement of the Scotland Act, but not that it was opposed on the ground of acquiescence, since the bill of suspension was raised in June 2000, long before the policy cut-off date of the decision in Millar v Dickson.

[45 ] We deal finally with Mr Shead's submission that the Crown is in the circumstances barred from pleading acquiescence. There was undoubtedly a long lapse of time between the earliest dates on which the Crown might have indicated its intention to plead acquiescence (in Dickson's case, between September and October 2001, in McHale's case between November 2001 and March 2002, and in McNaughton's case in answers to the bill if suspension in the summer of 2000) and the date on which the Crown did give such an indication (December 2005). We agree with Mr Shead that it was open to the Crown to make clear that it proposed to plead acquiescence at the time when the additional grounds of appeal were allowed in Dickson's and McHale's cases. The court would not necessarily have dealt with the question of acquiescence in deciding whether to allow the additional grounds of appeal, but the Crown would have preserved its position by stating its attitude at that stage. Similarly, the obvious time to take the point in McNaughton's bill of suspension was in answers lodged in response to service of the bill. The Advocate depute's submission that Mr Shead's argument is circular has no merit. The Crown could have raised the question of acquiescence at any time after the various dates mentioned above. The appellants, however, could not claim that the plea of acquiescence was barred until they learned in December 2005 that it was to be taken. There is more force in the Advocate depute's other submission, that the Crown is not, under our procedure and in the absence of an order of the court, obliged to state the basis of its opposition to an appeal at any particular stage before the substantive hearing. Thom indicates that the Crown may bar itself from adopting a particular position in relation to a prosecution, but in the context of loss of the right to prosecute sets a high standard of unequivocal public declaration of position. We do not consider that Thom is directly in point. We are, however, not prepared to infer from the Crown's silence on the subject of acquiescence over the substantial period before December 2005 that they had unequivocally abandoned that plea. We therefore reject Mr Shead's submission.

Decision

[46 ] In the result we shall repel the plea of acquiescence in each case, and continue the appeals for a hearing on the outstanding issues.