Millar V Dickson Payne V Heywood Steward V Heywood Tracey V Heywood

FOR EDUCATIONAL USE ONLY Page 1
*1615 Millar v Dickson
Payne v Heywood
Steward v Heywood
Tracey v Heywood
Privy Council
24 July 2001
[2001] UKPC D4
[2002] 1 W.L.R. 1615

Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Clyde and Lord
Scott of Foscote
2001 July 2, 3, 4; 24
Devolution—Scotland—Human rights—Right to trial before independent tribunal—Proceedings
against defendant brought before temporary sheriff—Temporary sheriffs held not to be independent
tribunal—Whether defendant waiving right to trial before independent tribunal
On 20 May 1999 the Scotland Act 1998 came into force and, by virtue of section 57(2), the Lord
Advocate, as a member of the Scottish Executive, had no power to do any act which was
incompatible with, inter alia, article 6(1) of the European Convention for the Protection of Human
Rights and Fundamental Freedoms thereafter. On 11 November the High Court of Justiciary held
that temporary sheriffs did not constitute an independent and impartial tribunal and that it was,
therefore, incompatible with article 6(1) for the Lord Advocate, through procurators fiscal, to bring
proceedings before a temporary sheriff. The use of temporary sheriffs was instantly terminated
and a new category of part time sheriff was created to replace them. There had been, however, a
substantial number of cases which had been brought before temporary sheriffs between 20 May
and 11 November and many of those who had been convicted or sentenced wished to challenge
the validity of those proceedings in the light of the High Court's decision. The defendant's cases
were selected to be heard as representative of the various factual situations involved. The High
Court dismissed their appeals on the ground that the defendants had tacitly waived their right to
object to the hearing of their cases before a temporary sheriff.
On appeal by the defendants—
Held, allowing the appeals, that by continuing to prosecute the defendants before a tribunal
which was not independent and impartial the Lord Advocate had infringed their rights under
article 6(1); that although the defendants could not show that they had suffered any substantial
injustice the right to a fair trial before an independent tribunal in criminal proceedings was
absolute and could not be compromised or eroded unless validly waived; that before the decision
of the High Court on 11 November the position of temporary sheriffs had not generally been
known to be open to serious question and in those circumstances there was nothing to enable
the Board to find that the defendants or their agents had made a voluntary, informed and
unequivocal election not to raise an objection to the role of the temporary sheriffs and claim trial
before an independent and impartial tribunal; and that, accordingly, the defendants had not
waived their rights (post, paras 27, 35–40, 59–60, 66–67, 70, 77, 83, 85–87).
Decision of the High Court of Justiciary 2000 JC 648 reversed.
*1616
The following cases are referred to in the opinions of their Lordships:
• Bradford v McLeod 1986 SLT 244
• Brown v Stott [2001] 2 WLR 817; [2001] 2 All ER 97, PC
• Bulut v Austria (1996) 24 EHRR 84

• Caledonian Railway Co v Ramsay (1897) 24 R(J) 48
• Clancy v Caird 2000 SC 441
• De Cubber v Belgium (1984) 7 EHRR 236
• Deweer v Belgium (1980) 2 EHRR 439
• Dimes v Proprietors of Grand Junction Canal (1852) 3 HL Cas 759, HL(E)
• Doherty v McGlennan 1997 SLT 444
• Evans v Bartlam [1937] AC 473; [1937] 2 All ER 646, HL(E)
• Findlay v United Kingdom (1997) 24 EHRR 221
• H v Belgium (1997) 10 EHRR 339
• H†kansson and Sturesson v Sweden (1990) 13 EHRR 1
• Howdle v Beattie 1995 SCCR 349
• Jones v Randall (1774) 1 Cowp 37
• Law v Chartered Institute of Patent Agents [1919] 2 Ch 276
• Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451; [2000] 2 WLR 870; [2000] 1 All ER
65, CA
• McGonnell v United Kingdom (2000) 30 EHRR 289
• Martindale v Falkner (1846) 2 CB 706
• Oberschlick v Austria (1991) 19 EHRR 389
• Pfeifer and Plankl v Austria (1992) 14 EHRR 692
• R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 2) [2000] 1 AC
119; [1999] 2 WLR 272; [1999] 1 All ER 577, HL(E)
• R v Gough [1993] AC 646; [1993] 2 WLR 883; [1993] 2 All ER 724, HL(E)
• R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the
Regions [2001] UKHL 23; [2001] 2 WLR 1389; [2001] 2 All ER 929, HL(E)
• Rimmer v HM Advocate (unreported) 23 May 2001, HC of Just
• Skeen v Fullarton 1980 SLT (Notes) 46
• Starrs v Ruxton 2000 JC 208
• Werner v Austria; Szucs v Austria (1997) 26 EHRR 310
• Zumtobel v Austria (1993) 17 EHRR 116
The following additional cases were cited in argument:

• Aitkenhead v Cuthbert 1962 JC 12
• Barber…, Messegué and Jabardo v Spain (1988) 11 EHRR 360
• Campbell and Fell v United Kingdom (1984) 7 EHRR 165
• Colozza v Italy (1985) 7 EHRR 516
• Gibbs v Ruxton 2000 JC 258
• Howden (James) & Co Ltd v Taylor Woodrow Property Co Ltd 1998 SC 853
• Neumeister v Austria (No 2) (1974) 1 EHRR 136

APPEAL from the High Court of Justiciary
These were appeals by the accused, David Cameron Millar, Kerry Payne, Paul Stewart and
Joseph Tracey from a decision of the Appeal Court of the High Court of Justiciary (Lord Prosser,
Lord Johnston and Lord Cowie) of 3 August 2000 to the effect that the accused had waived their
right to a trial before an independent and impartial tribunal. The respondents were David J
Dickson, Procurator Fiscal, Elgin and Barry K Heywood, Procurator Fiscal, Dundee.
The facts are stated in the judgment of Lord Bingham of Cornhill.
*1617
Representation
• Aidan O'Neill QC and Simon Di Rollo for Stewart.
• Mungo Bovey QC, Simon Collins and Chris Shead for Millar, Payne and Tracey.
• Neil Davidson QC, S-G and Robert McCreadie, Advocate Depute, for the respondents.
Cur adv vult
LORD BINGHAM OF CORNHILL
24 July.
1 Each of these four appellants (“the accused”) was the subject of criminal proceedings before a
temporary sheriff between 20 May 1999 and 11 November 1999. Mr Millar was convicted on
indictment of drug offences in the Sheriff Court at Elgin on 27 August 1999 and was sentenced
on the same day to a term of imprisonment. Ms Payne pleaded guilty to assault and other
offences in the Sheriff Court at Dundee on 16 September 1999 and was sentenced to a term of
imprisonment on 12 October 1999. Mr Stewart was summarily convicted of driving offences in the
Sheriff Court at Dundee on 16 February 1999, but appeared in the Sheriff Court again after 20
May 1999, on 28 June 1999, and was then sentenced to non-custodial penalties. Mr Tracey was
summarily convicted of offensive weapon and assault offences in the Sheriff Court at Dundee on
23 September 1999 and was sentenced to a term of imprisonment on 8 November 1999. All the
accused were represented by solicitors.
2 It was on 20 May 1999 that section 44(1)(c) of the Scotland Act 1998 came into force. The Lord
Advocate thereupon became a member of the Scottish Executive. As such, by virtue of section
57(2) of the Act, he had no power to do any act incompatible with any of the Convention rights
defined in section 1 of the Human Rights Act 1998 (unless the act in question fell within section
57(3)).
3 It was on 11 November 1999 that the High Court (the Lord Justice-Clerk (Cullen), Lord Prosser
and Lord Reed) gave its decision in Starrs v Ruxton 2000 JC 208, holding that temporary sheriffs
were not an “independent and impartial tribunal” within the meaning of article 6(1) of the
European Convention for the Protection of Human Rights and Fundamental Freedoms.
4 Before the High Court and again before the Board the accused made the same very simple
complaint: that the Lord Advocate (and thus the respondent procurators fiscal who conducted the
prosecutions) acted incompatibly with the Convention right of the accused under article 6(1) by
prosecuting them before temporary sheriffs who were not an independent and impartial tribunal;
that such proceedings were accordingly ultra vires and null; and that the convictions and
sentences of Millar, Payne and Tracey and the sentence of Stewart should accordingly be
quashed. These complaints were resisted by the Solicitor General on behalf of the respondents,
and were rejected by the High Court 2000 JC 648 on 3 August 2000.
5 The issues raised by each of the accused before the High Court were devolution issues within
paragraph 1(d) of Part I of Schedule 6 to the Scotland Act 1998, namely “a question whether a
purported or proposed exercise of a function by a member of the Scottish Executive [the Lord
Advocate] is, or would be, incompatible with any of the Convention rights”. *1618 On 15 August
2000 the High Court gave leave to the accused to appeal against its determination of those
issues, and the accused come before the Board by virtue of section 98 of and paragraph 13(a) of
Schedule 6 to that Act. The appeals are of obvious practical importance since these cases have
been selected for decision out of a significant number of other cases brought before temporary
sheriffs between 20 May and 11 November 1999. The sentences imposed upon the accused
have been suspended pending final resolution of these issues.The High Court's decision in Starrs
v Ruxton
6 Before the High Court and again before the Board the Solicitor General accepted the
correctness of the decision in Starrs v Ruxton 2000 JC 208 and accordingly accepted, on the
basis of that decision, that the temporary sheriffs were not at the material time “an independent
and impartial tribunal”: see 2000 JC 648, 651b, para 4. It follows that the correctness of that
decision is not open to review before the Board. It is nonetheless necessary to summarise its
effect since the present appeals are based upon it.
7 The accused Starrs and Chalmers appeared before a temporary sheriff on a summary
complaint on 5 May 1999, when their trial began but was not concluded. The trial diet was
adjourned to 8 July 1999, and on that date was further adjourned and leave was given to the
accused to raise a devolution issue whether the procurator fiscal acted compatibly with article 6
of the convention in prosecuting them before a temporary sheriff. When the devolution issue
came before the temporary sheriff he decided it against them. The accused challenged the
temporary sheriff's decision in the High Court. The issue in that court was described by the Lord
Justice-Clerk 2000 JC 208, 213 in this way:
“I come then to the main issue which was debated at some length, namely whether a
temporary sheriff such as Temporary Sheriff Crowe, was an ‘independent and impartial
tribunal’ in the sense of article 6(1) of the Convention. I should, of course, make it clear
that this point does not involve any reflection whatsoever on his conduct. The point is of
general importance, not only for its potential effect in individual cases but also for any
future consideration of the terms of the relevant legislation and any appointments made
thereunder.”
8 In the course of their judgments the Lord Justice-Clerk and Lord Reed reviewed the legislation
governing the appointment of temporary sheriffs and also some additional information (not
previously public knowledge: p 215a) concerning the recent practice of the Lord Advocate in
making appointments of temporary sheriffs: see pp 213-219, 235-241. The Lord Justice-Clerk
drew attention in particular to the fact that temporary sheriffs were appointed for one year only
and were subject to recall during that period at the instance of the Lord Advocate, perhaps
without the possibility of challenge: see pp 214c, 216e, 218e, 226g. The Lord Justice-Clerk
quoted the material terms of article 6(1) of the Convention:
“In the determination of his civil rights and obligations or of any criminal charge against
him, everyone is entitled to a fair and public *1619 hearing within a reasonable time by
an independent and impartial tribunal established by law…”
He made extensive reference to Strasbourg and other authority on the meaning of “an
independent and impartial tribunal”: see pp 219-226. He expressed a number of conclusions:
(1) “Rather than a control over numbers, the use of the one year term suggests a
reservation of control over the tenure of office by the individual, enabling it to be brought
to an end within a comparatively short period. This reinforces the impression that the
tenure of office by the individual temporary sheriff is at the discretion of the Lord
Advocate. It does not, at least prima facie, square with the appearance of
independence.” (p 228.)
(2) “There is no question whatever as to the integrity and fair mindedness with which the
Lord Advocate has acted. However, what I have to consider is whether the basis on
which the temporary sheriff holds office is truly independent, that is independent of the
executive, whether it presents an appearance of such independence, and whether and
to what extent the lack of the former gives rise to the appearance of lack of impartiality. I
do not have difficulty with the fact that temporary sheriffs are appointed by the
executive, following upon their selection by the Lord Advocate. Counsel did not contend
to the contrary. However, appointment by the executive is consistent with independence
only if it is supported by adequate guarantees that the appointed judge enjoys security
of tenure. It is clear that temporary sheriffs are appointed in the expectation that they will
hold office indefinitely, but the control which is exercised by means of the one year limit
and the discretion exercised by the Lord Advocate detract from independence.” (p 229.)
(3) “This line of reasoning seems to me to be persuasive and to support the view that
even when full allowance is made for the matters relied upon by the Solicitor General,
the power of recall under section 11(4) is incompatible with the independence and
appearance of independence of the temporary sheriff. For the reasons which I have
already indicated, I regard the one-year limit to the appointment as being a further
critical factor arriving at the same result… I also accept that in this case there is a link
between perceptions of independence and perceptions of impartiality, of the kind which
has been categorised in Canada as institutional impartiality. I consider that there is a
real risk that a well—informed observer would think that a temporary sheriff might be
influenced by his hopes and fears as to his prospective advancement. I have reached
the view that a temporary sheriff, such as Temporary Sheriff Crowe, was not an
‘independent and impartial tribunal’ within the meaning of article 6(1) of the Convention.”
(p 230.)
(4) “In the whole circumstances, therefore, I am of opinion that in proceeding with the
trial the Lord Advocate, as represented by the procurator fiscal, acted incompatibly with
the right of the accused under article 6(1) to trial by ‘an independent and impartial
tribunal’.” (p 231.)
9 Lord Prosser was in complete agreement. His conclusions were expressed as follows: *1620
(1) “the answer to the question of whether a person has had a hearing ‘by an
independent and impartial tribunal established by law’ when the tribunal is a temporary
sheriff holding office at the pleasure of the Lord Advocate, with no security of tenure,
can in my opinion be answered in the negative without any deep or detailed
consideration of the words ‘independent and impartial’. Nothing in the statutory
provisions regarding temporary sheriffs, and nothing in the account which we were given
of how they are selected and appointed, or how they are used, or how they cease to be
used or to hold office, appears to me to point to any other answer. Equally, nothing in
the authorities to which we were referred appears to me to point to any other answer.
The opinions of your Lordships appear to me to demonstrate with great clarity why no
other answer is appropriate.” (p 231.)
(2) “As regards the actual words ‘independent’ and ‘impartial’, the latter appears to me
to be of the essence of the judicial process. I would regard the concept of a partial judge
as a contradiction in terms. But I am inclined to see independence—the need for a
judge not to be dependent on others—as an additional substantive requirement, rather
than simply a means of achieving impartiality or a perception of impartiality.
Independence will guarantee not only that the judge is disinterested in relation to the
parties and the cause, but also that in fulfilling his judicial function, generally as well as
in individual cases, he is and can be seen to be free of links with others (whether in the
executive, or indeed in the judiciary, or in outside life) which might, or might be thought
to, affect his assessment of the matters entrusted to him. The requirement of
independence seems to me to have an importance which runs even wider than that of
impartiality. The two concepts appear to me to be inextricably interlinked, and I do not
myself find it useful to try to separate the one from the other.” (p 232.)
(3) “Like your Lordships, I am not suggesting in any way that there has ever been any
impropriety, either on the part of temporary sheriffs or on the part of any holder of any
ministerial office, or of their officials. But I would add that if a judge is not independent,
then however great his integrity, it may be very difficult for him to know whether his want
of independence affects the way in which he carries out his judicial duties. And however
determined a minister or public servant may be to carry out his functions in relation to
the judiciary only on the basis of wholly appropriate considerations, it will be important
for him to remember that his own confidence in his own integrity is not, and cannot be
regarded as, a guarantee.” (p 234.)
10 Lord Reed delivered a comprehensive judgment. It is necessary to cite the following extracts
only:
(1) “Given that temporary sheriffs are very often persons who are hoping for graduation
to a permanent appointment, and at the least for the renewal of their temporary
appointment, the system of short renewable appointments creates a situation in which
the temporary sheriff is liable to have hopes and fears in respect of his treatment by the
executive when his appointment comes up for renewal: in short, a relationship of
dependency. This is, in my opinion, a factor pointing *1621 strongly away from
‘independence’ within the meaning of article 6.” (p 243.)
(2) “There can be no doubt as to the importance of security of tenure to judicial
independence: it can reasonably said to be one of the cornerstones of judicial
independence. The critical importance of judicial security of tenure has been recognised
in Scots law since at least the declaration in article 13 of the Claim of Right 1689 (cap
28, APS IX 38) that ‘the changing nature of the judge's gifts ad vitam aut culpam into
commissions durante beneplacito’ is ‘contrary to law’.” (p 245.)
(3) “There is, however, no objective guarantee of security of tenure, such as can be
found in section 12 of the 1971 Act; and I regard the absence of such a guarantee as
fatal to the compatibility of the present system with article 6. The Solicitor General
emphasised that it is inconceivable that the Lord Advocate would interfere with the
performance of judicial functions. I would readily accept that; but that is not the point.
Judicial independence can be threatened not only be interference by the executive, but
also by a judge's being influenced, consciously or unconsciously, by his hopes and fears
as to his possible treatment by the executive. It is for that reason that a judge must not
be dependent on the executive, however well the executive may behave:
‘independence’ connotes the absence of dependence.” (p 248.)
(4) “Even if I were mistaken in my conclusion that the necessary objective guarantees of
independence were lacking, it seems to me that the need for the temporary sheriff's
appointment to be renewed annually at the discretion of the executive, and his lack of
security of tenure, are in any event factors which could give rise to a reasonable
perception of dependence upon the executive. The necessary appearance of
independence is therefore in my opinion absent.” (p 252.)
(5) “Given my conclusion that trial before a temporary sheriff violates the right of the
complainers under article 6 to a trial before an independent and impartial tribunal, and
the Solicitor General's concession that such a trial involves the doing of acts which must
be taken to be acts of the Lord Advocate for the purposes of section 57(2) of the
Scotland Act, it follows that section 57(2), if it is applicable, renders those acts
incompetent.” (p 255.)
(6) “Before concluding this part of my opinion, I wish to make it plain that I am not
suggesting that any temporary sheriff has ever allowed his judicial conduct to be
influenced by any consideration of how he might best advance his prospects of
obtaining the renewal of his appointment, or his promotion to a permanent appointment.
Nor am I suggesting that any official or minister has ever sought to interfere with the
judicial conduct of a temporary sheriff or would ever be likely to do so. There is,
however, no objective guarantee that something of that kind could never happen; and
that is why these appeals must succeed.” (p 257.)
The High Court's decision in the instant cases

11 In his leading judgment in these cases Lord Prosser defined the main issues then before the
High Court 2000 JC 648, 651, para 4:
“In relation to these cases, the Solicitor-General on behalf of the respondents conceded
that there was a relevant ‘act’ for the purposes of *1622 paragraph 1(d) of Schedule 6 to
the Scotland Act 1998. It was accepted, upon the basis of the decision in Starrs that the
temporary sheriffs were not an ‘independent and impartial tribunal’ within the meaning of
article 6(1). The Crown's position was, however, that each of these complainers had
tacitly waived the right to an independent and impartial tribunal. And regardless of the
question of waiver, the Crown's position was that, notwithstanding the decision in Starrs,
the acts of each of the temporary sheriffs, in convicting and/or sentencing the
complainers prior to the date of that decision were those of a de facto judge, and should
be treated as valid. Moreover, it was not suggested on behalf of any of these
complainers that waiver of the entitlement to an independent and impartial tribunal
under article 6(1) would be incompetent or otherwise impossible as a matter of law: the
question was not whether that entitlement could be waived, but whether it had been in
these cases. It is convenient to deal with the question of waiver first, before considering
the contention that these decisions are valid as decisions of de facto judges. Upon both
issues, it appeared to me that there was no substantial difference between the
submissions advanced on behalf of the different complainers, and I have not found it
necessary to deal with these submissions separately from one another”
Most of Lord Prosser's judgment, with which Lord Cowie agreed, and most of the shorter
judgment of Lord Johnston, were devoted to the waiver issue, which was resolved against the
accused and in favour of the Crown. The issue concerning de facto judges was decided against
the Crown: in his written case the Solicitor General sought to challenge that adverse ruling, but in
oral argument before the Board he did not seek to pursue that submission and no further
reference need be made to it.
12 It is clear that in the High Court the accused, relying on section 57(2) of the Scotland Act
1998, challenged the vires of the Lord Advocate to pursue prosecutions against them before
temporary sheriffs after 20 May 1999, but this issue does not appear to have featured
prominently in the argument and was disposed of in a single paragraph of Lord Prosser's
judgment, at p 664, para 39:
“I should mention briefly one further argument which was advanced on behalf of the
complainers in these four bills, which was founded upon this same proposition, that in
terms of section 57(2) of the 1998 Act, the Lord Advocate was acting ultra vires in
continuing the prosecution. Viewing the matter as one of vires, it was submitted that a
waiver could not overcome his lack of vires. But in my opinion this argument is
misconceived. Section 57(2) means that the Lord Advocate has no power to do any act
so far as that act is incompatible with ‘any of the Convention right's. In terms of section
126(1), that expression has the same meaning as in the Human Rights Act 1998. In
terms of section 1(1) of that Act ‘the Convention right's means the rights and
fundamental freedoms set out in, inter alia, article 6. But where such a right can
competently be waived, and in particular circumstances has been waived, it has in my
opinion ceased to be a right of any kind, in those circumstances. I do not think that it
was actually suggested by counsel for the complainers that once such a Convention
right had been waived, so that it was no longer a right of the complainer in the
circumstances, the Lord Advocate was none the *1623 less still obliged, in terms of
section 57(2), not to do an act which would have been incompatible with that right if it
had still existed, and was incompatible only with the description of the right which had
been waived. At all events, I would reject any such contention. I would accept that
speaking generally, waiver cannot render intra vires an act which is inherently ultra
vires. But the whole question of the Lord Advocate's powers is related to the
complainer's rights under the Convention, and I am unable to see him as debarred from
acting incompatibly with rights which in the circumstances they do not have”
13 In argument before the Board the balance of the argument very substantially altered. Counsel
for the accused forcefully submitted, in reliance on Starrs, that the Lord Advocate had no power
to continue to prosecute them before temporary sheriffs after 20 May 1999, although counsel
continued to argue that the accused had not waived their entitlement under article 6 to trial before
an independent and impartial tribunal. The Solicitor General for his part placed very muted
reliance on the waiver submission which had prevailed below, but joined issue with the vires
argument of the accused, which became the primary focus of the debate before the Board. It is
accordingly convenient first to address the vires issue arising under section 57(2) of the Scotland
Act 1998.
Section 57(2)
14 It was common ground between the parties that the relevant acts of the respondent
procurators fiscal were to be treated as acts of the Lord Advocate, that the conduct of the
procurators fiscal in continuing to prosecute the accused before temporary sheriffs after 20 May
1999 were “acts” within the meaning of section 57(2), and that temporary sheriffs were not at the
material time an independent and impartial tribunal within the meaning of article 6(1): 2000 JC
648, 651, quoted above. The argument for the accused on this point was in essence both short
and simple: by virtue of section 57(2) the Lord Advocate as a member of the Scottish Executive
had no power to do any act incompatible with any of the Convention rights of the accused; article
6(1) of the Convention entitled the accused to trial of the criminal charges against them by an
independent and impartial tribunal; temporary sheriffs were not at the material time an
independent and impartial tribunal because Starrs so decided; the Lord Advocate acted
incompatibly with the Convention rights of the accused under article 6(1) by prosecuting them
before temporary sheriffs as, again, Starrs decided; acts done in relation to the prosecution of the
accused after 20 May 1999 were accordingly ultra vires, null, void and without legal effect; and
the convictions and sentences of Millar, Payne and Tracey and the sentence of Stewart should
therefore be quashed.
15 The Solicitor General sought to rebut this argument by distinguishing Starrs, essentially on the
ground that the challenge in that case had been raised at a relatively early stage of the
proceedings, before the trial had been concluded. Thus the court had no public or other interest
to balance against the defect in the qualification of the temporary sheriff before whom the trial
was proceeding. The judgments in that case, he rightly submitted, did not attempt to weigh the
interests of the public against the interests of the accused, doubtless because no argument was
directed to that *1624 issue. But it was plain that rights under article 6, save for the right to a fair
trial, were not absolute; it was proper to consider the right allegedly infringed in the context of all
the facts and circumstances of the case as a whole and to weigh the alleged infringement against
the general interest of the public. The ultimate issue was one of overall fairness, viewing the
proceedings as a whole, which could be done in these cases but could not be done in Starrs
because of the early stage in the proceedings at which the devolution issue had there been
raised and determined. In making the submissions the Solicitor General relied on recent
observations of the Board in Brown v Stott [2001] 2 WLR 817, 836b-e, 837-838, 839-840, 844e,
850c-d, 851b-e, 856g-h, 859d-g, 861-862and864-865, and on the Strasbourg authority there
referred to. Applying these principles to the present cases it could be seen that the trials of the
accused after 20 May 1999, albeit before temporary sheriffs, had been fair in all respects. Millar
had been convicted by a jury and no criticism was made of the summing up by the temporary
sheriff. Payne had pleaded guilty; it made no practical difference that her plea was tendered to a
temporary sheriff and there was nothing to suggest her sentence was excessive. Stewart no
longer complained of his conviction before 20 May 1999, and the non-custodial penalties
imposed after that date were moderate. Tracey had been convicted by a temporary sheriff on a
summary complaint after 20 May 1999, but had demonstrated no grounds to impugn conviction
or sentence. Whatever the theoretical defects to which the appointments of the respective
temporary sheriffs were subject, none of them was said to have shown any lack of independence
or impartiality and none of the accused could show that he or she had in the event suffered any
injustice.
16 With these last submissions of the Solicitor General I have much sympathy. There is indeed
nothing to suggest that the outcome of any of these cases would have been different had the
relevant stages of the prosecution been conducted before permanent instead of temporary
sheriffs. There is no reason to doubt that the conduct of all the temporary sheriffs involved was
impeccable, and no reason to suppose that any of the accused suffered any substantial injustice.
But I cannot accept that the outcome in Starrs would have been different had the challenge been
raised after the trial in that case was concluded and it is in my view clear from authority that the
right of an accused in criminal proceedings to be tried by an independent and impartial tribunal is
one which, unless validly waived by the accused, cannot be compromised or eroded.
17 In Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, the Court of Appeal of England
and Wales (Lord Bingham of Cornhill CJ, Lord Woolf MR and Sir Richard Scott V-C) said, at pp
471-472:
“2. In determination of their rights and liabilities, civil or criminal, everyone is entitled to a
fair hearing by an impartial tribunal. That right, guaranteed by the European Convention
for the Protection of Human Rights and Fundamental Freedoms, is properly described
as fundamental. The reason is obvious. All legal arbiters are bound to apply the law as
they understand it to the facts of individual cases as they find them. They must do so
without fear or favour, affection or ill-will, that is, without partiality or prejudice. Justice is
portrayed as blind not because she *1625 ignores the facts and circumstances of
individual cases but because she shuts her eyes to all considerations extraneous to the
particular case.
“3. Any judge (for convenience, we shall in this judgment use the term ‘judge’ to
embrace every judicial decision-maker, whether judge, lay justice or juror) who allows
any judicial decision to be influenced by partiality or prejudice deprives the litigant of the
important right to which we have referred and violates one of the most fundamental
principles underlying the administration of justice. Where in any particular case the
existence of such partiality or prejudice is actually shown, the litigant has irresistible
grounds for objecting to the trial of the case by that judge (if the objection is made
before the hearing) or for applying to set aside any judgment given. Such objections and
applications based on what, in the case law, is called ‘actual bias’ are very rare, partly
(as we trust) because the existence of actual bias is very rare, but partly for other
reasons also. The proof of actual bias is very difficult, because the law does not
countenance the questioning of a judge about extraneous influences affecting his mind;
and the policy of the common law is to protect litigants who can discharge the lesser
burden of showing a real danger of bias without requiring them to show that such bias
actually exists.”
18 These observations, although directed to impartiality, would apply equally to independence. I

do not understand them to be in any way inconsistent with Scots law on this subject, which
attaches no less weight than the English common law to the integrity of a tribunal carrying out
judicial functions, not least in the criminal field.
19 The observations are also, as I think, fully supported by the jurisprudence of the European
Court of Human Rights. In De Cubber v Belgium (1984) 7 EHRR 236 the complaint was made, in
reliance on an express prohibition in the national judicial code and article 6(1) of the Convention,
that a judge had acted as a trial judge after conducting the preliminary investigation into the
offences alleged against the complainant. Having found that there was no evidence of actual bias
on the part of the judge, the court summarised its general approach, at p 244, para 26:
“However, it is not possible for the court to confine itself to a purely subjective test;
account must also be taken of considerations relating to the functions exercised and to
internal organisation (the objective approach). In this regard, even appearances may be
important; in the words of the English maxim quoted in, for example, the Delcourt
judgment of 17 January 1970, ‘justice must not only be done: it must also be seen to be
done’. As the Belgian Court of Cassation has observed, any judge in respect of whom
there is a legitimate reason to fear a lack of impartiality must withdraw. What is at stake
is the confidence which the courts in a democratic society must inspire in the public and
above all, as far as criminal proceedings are concerned, in the accused”
The court continued, at p 246, para 30:
“In conclusion, the impartiality of the Oudenaarde court was capable of appearing to the
applicant to be open to doubt. Although the court itself has no reason to doubt the
impartiality of the member of the judiciary who had conducted the preliminary
investigation, it recognises, having regard to the various factors discussed above, that
his presence on *1626 the bench provided grounds for some legitimate misgivings on
the applicant's part. Without underestimating the force of the Government's arguments
and without adopting a subjective approach, the court recalls that a restrictive
interpretation of article 6(1)—notably in regard to observance of the fundamental
principle of the impartiality of the courts—would not be consonant with the object and
purpose of the provision, bearing in mind the prominent place which the right to a fair
trial holds in a democratic society within the meaning of the Convention”
In paragraph 32, at p 248, the court went on to hold that a lack of independence and impartiality
in the trial court could not be excused because such qualities were met by another court to which
an appeal lay.
20 It was held in H†kansson and Sturesson v Sweden (1990) 13 EHRR 1, 16, para 66 that “a
waiver must be made in an unequivocal manner and must not run counter to any important public
interest”.
21 Oberschlick v Austria (1991) 19 EHRR 389 involved a journalist against whom a criminal
prosecution for defamation was brought. The case against him was dismissed by a lower court
but reinstated by a court of appeal which remitted the case to the lower court for trial. The
journalist was convicted by the lower court, which held itself bound by the opinion of the court of
appeal on the earlier occasion. The journalist's appeal against that decision came before a court
of appeal over which the same judge as on the earlier occasion presided. This was contrary to
the national code of criminal procedure. The journalist complained that the court of appeal on the
second occasion was not an independent and impartial tribunal. The main argument in the case
turned on waiver, which, it was said, had to be established in an unequivocal manner: p 420,
para 51. Such waiver was not established. It therefore followed that there had been a violation of
article 6(1) because the tribunal was not impartial.
22 The complaint in Pfeifer and Plankl v Austria (1992) 14 EHRR 692 again was that, in breach
of the national code of criminal procedure, the judges who had acted as investigating judges sat
also as trial judges. The court reiterated its position, at pp 712-713:
“37. According to the court's case law, the waiver of a right guaranteed by the
Convention—in so far as it is permissible—must be established in an unequivocal
manner. Moreover, the court agrees with the Commission that in the case of procedural
rights a waiver, in order to be effective for Convention purposes, requires minimum
guarantees commensurate to its importance…”
“39. Thus even supposing that the rights in question can be waived by a defendant, the
circumstances surrounding the applicant's decision deprived it of any validity from the
point of view of the Convention.”
A violation of article 6(1) was accordingly found.

23 In Bulut v Austria (1996) 24 EHRR 84 a trial judge had yet again, in breach of the national
code of criminal procedure, acted as an investigating judge at an earlier stage of the
proceedings. But on this occasion the lawyer representing the accused had been expressly
asked, in writing before the trial and orally at the trial, whether he objected to the participation of
the judge in the trial. On neither occasion did he object. In holding that there was no
*1627 violation of article 6(1) the court referred to the very limited participation of the judge at the
investigatory stage and held, at p 101, para 34:
“In this limited context, the applicant's fear that the Innsbruck Regional Court lacked
impartiality cannot be regarded as objectively justified. In any event, it is not open to the
applicant to complain that he had legitimate reasons to doubt the impartiality of the court
which tried him, when he had the right to challenge its composition but refrained from
doing so.”
24 In contrast with the other cases so far cited, Findlay v United Kingdom (1997) 24 EHRR 221
concerned the independence as well as the impartiality of the tribunal. A serving soldier pleaded
guilty to a number of offences at a court martial. The Commission considered the court martial,
because of the way in which it was composed and administered, to lack both independence and
impartiality: pp 239-240, paras 106, 108. The court shared this view, at pp 244-245:
“73. The court recalls that in order to establish whether a tribunal can be considered as
‘independent’, regard must be had inter alia to the manner of appointment of its
members and their term of office, the existence of guarantees against outside pressures
and the question whether the body presents an appearance of independence. As to the
question of ‘impartiality’, there are two aspects to this requirement. First, the tribunal
must be subjectively free of personal prejudice or bias. Secondly, it must also be
impartial from an objective viewpoint, that is, it must offer sufficient guarantees to
exclude any legitimate doubt in this respect. The concepts of independence and
objective impartiality are closely linked and the court will consider them together as they
relate to the present case.”

“76. In order to maintain confidence in the independence and impartiality of the court,
appearances may be of importance. Since all the members of the court-martial which
decided Mr Findlay's case were subordinate in rank to the convening officer and fell
within his chain of command, Mr Findlay's doubts about the tribunal's independence and
impartiality could be objectively justified.”
A violation of article 6 was found. It was further held that the defects in the trial tribunal could not
be cured by any subsequent review proceedings: p 246, para 79. No significance was attached
to the fact that Findlay had pleaded guilty. The lack of independence and objective impartiality
was fatal.
25 There was no accusation of actual bias or prejudice against the Bailiff of Guernsey whose role
was reviewed in McGonnell v United Kingdom (2000) 30 EHRR 289: see paragraph 50. But his
dual role was “capable of casting doubt on his impartiality” and the applicant had “legitimate
grounds for fearing” that he might have been influenced by his earlier involvement in the planning
process paragraph 57). It followed that there was a breach of article 6(1).
26 In Brown v Stott [2001] 2 WLR 817, 840a Lord Steyn said: “And it is a basic premise of the
Convention system that only an entirely neutral, impartial, and independent judiciary can carry
out the primary task of securing and enforcing Convention rights.” There are few, if any,
*1628 Convention rights of more practical importance to the citizen than the right to a fair trial.
The conduct of trials at all stages by an independent and impartial tribunal is in my view
recognised by the Convention and the authorities, subject to waiver where that is permissible, as
a necessary although not a sufficient safeguard of the citizen's right to a fair trial. It is a safeguard
which should not, least of all in the criminal field, be weakened or diluted, whatever the
administrative consequences.
27 I accept the argument for the accused on this point. The Lord Advocate had no power to act in
a way which infringed any Convention right of the accused. By continuing to prosecute the
accused before a tribunal which was not independent and impartial he infringed the right of the
accused to have the criminal charges against them determined by a tribunal which was
independent and impartial. Unless the accused validly waived their entitlement to trial before an
independent and impartial tribunal, he acted in a way which section 57(2) denied him power to
do. I think this is the view taken by the High Court.
28 No distinction is to be drawn between the case of Ms Payne, who pleaded guilty, and the
other accused who pleaded not guilty and were convicted. It cannot be said that on the occasion
when she entered her plea there was then no determination of a criminal charge against her
within the meaning of article 6. The role of a court before which an accused pleads guilty is not
entirely passive: it has a duty to ensure that the accused understands the charge (a duty of
greater significance when the accused is unrepresented) and that the plea is not equivocal. It is
noteworthy that in Findlay's case 24 EHRR 221 the European Court drew no distinction between
his plea of guilty and his sentence.
Section 57(3)
29 Before the Board, although not before the High Court, the Solicitor General sought to rely on
section 57(3) of the Scotland Act 1998, which provides:
“Subsection (2) does not apply to an act of the Lord Advocate—

(a) in prosecuting any offence, or
(b) in his capacity as head of the systems of criminal prosecution and investigation of deaths in
Scotland, which, because of subsection (2) of section 6 of the Human Rights Act 1998, is not
unlawful under subsection (1) of that section.”
Section 6 of the Human Rights Act 1998, so far as relevant, provides:
“(1) It is unlawful for a public authority to act in a way which is incompatible with a
Convention right.
“(2) Subsection (1) does not apply to an act if—

(a) as the result of one or more provisions of primary legislation, the authority could not have
acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be
read or given effect in a way which is compatible with the Convention rights, the authority was
acting so as to give effect to or enforce those provisions.”
Relying on section 6(2)(b), the Solicitor General submitted that section 11 of the Sheriff Courts
(Scotland) Act 1971 could not be read or given effect in a *1629 way compatible with the
Convention rights and that the prosecutors were acting to give effect to or enforce those
provisions.
30 I cannot accept this argument. The appointment of temporary sheriffs under section 11 of the
1971 Act was one thing. The prosecution of offenders was quite another. In appointing temporary
sheriffs under section 11 the Lord Advocate was giving effect to that section. In prosecuting the
accused before temporary sheriffs so appointed the Lord Advocate (through the respective
procurators fiscal) was performing a distinct and different function, which did not give effect to or
enforce section 11. Section 57(3) gives the Solicitor General no help in these cases.
Waiver
31 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. That the
waiver must be voluntary is shown by Deweer v Belgium (1980) 2 EHRR 439, where the
applicant's failure to insist on his right to a fair trial was held not to amount to a valid waiver
because it was tainted by constraint: p 465, para 54. In Pfeifer and Plankl v Austria 14 EHRR 692
there was held to be no waiver where a layman had not been in a position to appreciate
completely the implication of a question he had been asked: p 713, para 38. 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. It is
apparent from passages already cited from cases decided by the European Court of Human
Rights that a waiver, to be effective, must be unequivocal, which I take to mean clear and
unqualified. I infer that the High Court 2000 JC 648, 654-655, paras 12, 13 was of this opinion.
32 Did the accused, then, make a voluntary, informed and unequivocal election not to claim their
right to be tried by an independent and impartial tribunal or to raise no objection to the temporary
sheriffs before whom they appeared as a tribunal which was not independent and impartial?
There is no suggestion that any reference was made at any stage in these cases before
sentence to the standing or qualification of the respective temporary sheriffs. Thus any election, if
made, must have been tacit. It was on the grounds of tacit waiver that the High Court resolved
this issue against the accused. The High Court recorded that the parties were not really at issue
as to the tests to be applied but as to application of those tests to the circumstances of the
present cases: p 655, para 16.
33 The High Court made its finding of tacit waiver in reliance on a series of very carefully
formulated propositions:
(1) If an accused or his agent wishes to take any point on the qualification of the trial court it should
be taken timeously as a plea in bar of trial. If such a point is not taken, the omission to do so will be
taken to show an intention to abandon or waive the point unless circumstances show that it was not
intended to abandon or waive it or that the omission resulted from ignorance or misapprehension
which provided a reasonable explanation of the failure to take it: p 656, para 17.
*1630
(2) If knowledge of some material matter is absent, even an express intention to waive a right
may readily be recognised as insufficient to constitute a binding abandonment of the right: p 656,
para 18.
(3) In general, regardless of the knowledge or ignorance or misapprehension of an accused or
his agent as to the law, knowledge of the law will be imputed to him: p 656, para 20.
(4) An authoritative decision of the courts operates retrospectively, stating not only what the law
is at the date of the decision but what it has always been: p 657, para 21.
(5) In judging whether a right has been waived, it may be seen as reasonable for a party to have
proceeded upon the law as it appeared to be at the relevant time: p 657, para 22.
(6) If the law is reasonably regarded as settled, that may afford a reasonable ground for not
taking a point, even if the law is later changed, but it may be otherwise if the law is unsettled: pp
657-658, para 23.
(7) In the present case there was no settled view of what the law was at the crucial time, and the
accused and their agents were not subject to misapprehension attributable to some established
view of what the law was: p 658, paras 24, 25.
(8) The accused and their agents must be deemed to have known that the enactment of section
57(2) of the Scotland Act 1998 had radically altered the rights of accused persons and that article
6(1) of the European Convention gave accused persons a right to an independent and impartial
tribunal. Once the Scotland Act 1998 came into force the accused and their agents could not
reasonably say how or why they took a view of the law which only the decision in Starrs v Ruxton
2000 JC 208 revealed to be a misapprehension. Without deeming that they knew the law as
declared in Starrs, they must be deemed to have known that the statute had changed the law
and that new rights were in issue: pp 658-659, para 25.
(9) The same deemed knowledge must be attributed to the temporary sheriffs and the
prosecutors, but they were under no obligation to inform the accused of these known changes: p
659, para 26.
(10) It was of no real importance whether the accused's agents specifically knew that
proceedings before temporary sheriffs were open to challenge, this being widely known in the
legal profession: pp 653, 659, paras 10, 11 and 27.
(11) The agent's deemed knowledge of the new legislation precluded any contention that the law
could be assumed to be unchanged. It was for the agents to decide whether the new law created
a new right or the possibility of asserting a new right. There was nothing which made it
reasonable not to take the point: p 659, para 28.
(12) The agents were not to be criticised for not taking the point, since waiver could well have
been seen as the best course to follow in the interests of the accused: p 660, para 29.
34 Proposition (1) may, as I respectfully think, be accepted as generally true and as providing the
correct starting point. I would also accept proposition (2). But I cannot accept proposition (3). In
Martindale v Falkner (1846) 2 CB 706, 719 Maule J said, as I think correctly: “There is no
presumption in this country that every person knows the law: it would be contrary to common
sense and reason if it were so.” In Jones v Randall (1774) 1 Cowp 37, where Mr Dunning had
argued that “all judges know the laws”, Lord Mansfield CJ differed, at p 40: *1631
“As to the certainty of the law mentioned by Mr Dunning, it would be very hard upon the
profession, if the law was so certain, that everybody knew it: the misfortune is that it is
so uncertain, that it costs much money to know what it is, even in the last resort.”
More recently, in Evans v Bartlam [1937] AC 473, 479, Lord Atkin laid down what I take to be the
true principle:
“For my part I am not prepared to accept the view that there is in law any presumption
that any one, even a judge, knows all the rules and orders of the Supreme Court. The
fact is that there is not and never has been a presumption that every one knows the law.
There is the rule that ignorance of the law does not excuse, a maxim of very different
scope and application.”
Thus ignorance of the law will not excuse unlawful conduct; but it cannot suffice to found a plea
of waiver.
35 As to propositions (4) and (5), I cannot accept a declaratory theory of law, which depends
upon a fiction, as apposite in the very practical field of waiver. 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. As to proposition (6), I consider the true rule to be this:
the more obvious and notorious it is that a point is available to be taken, the more readily may it
be inferred that failure to take it represented a deliberate intention not to take it. The contrary is
also true.
36 I can readily accept that the agents for the accused in Elgin and Dundee knew of the
enactment of the Scotland Act 1998, knew that the legal landscape had altered, knew that
members of the Scottish Executive (including the Lord Advocate) were bound by the European
Convention, knew at least in general terms of the fair trial guarantee in article 6(1) and knew that
the powers of the Lord Advocate as a member of the Scottish Executive were subject to the
Convention (proposition (8)). Plainly, the standing of temporary sheriffs had been a subject of
continuing discussion, both before the Scotland Act 1998 (see, for example, Willock, “Temporary
Sheriffs” 1993 SLT (News) 352-354) and, with greater intensity, afterwards. I would readily
accept the informed observations of the Court of Session in Clancy v Caird 2000 SC 441, 453
and 470 as to the state of professional belief (proposition (10)) and that the law was known to be
in a state of flux. But it is in my opinion impossible to accept that the qualification of temporary
sheriffs was generally known to be open to serious question and that the agents were subject to
no misapprehension attributable to some established view of what the law was (proposition (7)). I
doubt very much if the outcome of Starrs was widely foreseen. I cannot accept proposition (9)
and, since waiver depends on the making of an informed choice, I cannot accept the opening
part of proposition (10).
37 Section 11(4) of the Sheriff Courts (Scotland) Act 1971, which provided in effect that
temporary sheriffs held office at pleasure (see Starrs 2000 JC 208, 235f, per Lord Reed), had
stood unamended for nearly 30 years. No attempt had been made, in anticipation of the coming
into force of the Scotland Act 1998, to amend it or to provide for the appointment of temporary
sheriffs for fixed terms longer than a year, no *1632 doubt because the qualification of temporary
sheriffs was not recognised to be vulnerable. Had that vulnerability been recognised, the Lord
Advocate would, one assumes, have taken before 20 May 1999 the steps he took after 11
November 1999, and would not have resisted the challenge to the standing of temporary sheriffs
which was made in Starrs. Had the respective procurators fiscal apprehended that their conduct
as prosecutors of the accused on behalf of the Lord Advocate was or might be ultra vires they
would doubtless have raised the issue at the hearings and sought the consent of the accused or
made other arrangements. Had the respective temporary sheriffs apprehended that they were or
might not have been an independent and impartial tribunal, they would doubtless have acted in
the same way. Both the procurators fiscal and the temporary sheriffs would have been under the
clearest obligation, if they entertained any doubt about the temporary sheriff's compliance with
article 6, to share their doubts with the defence: see the Locabail case [2000] QB 451, 478, para
21, which I do not understand to be inconsistent with the law applicable in Scotland. I do not
doubt that, if they had entertained any doubt, they would have acted in this way, and their failure
to do so points towards an absence of doubt. The inescapable fact is that, until Starrs, no
challenge was successfully made to the qualification of temporary sheriffs, despite their
employment in greatly increased numbers over the years. It has not been suggested that their
reputation was other than high. And to this day no accusation of actual bias has been made
against them.
38 It was of course for the agents of the accused to decide what points to make on behalf of their
clients (proposition (11)) and they could have seen advantages in proceeding before temporary
sheriffs (proposition (12)). But the point is whether the agents on behalf of the accused made a
voluntary, informed and unequivocal election not to claim trial before an independent and
impartial tribunal and not to object to the respective temporary sheriffs as a tribunal not meeting
the requirements of article 6(1). They could only have done this if they appreciated, or must be
taken to have appreciated, the effect of the eventual decision in Starrs or the real possibility of a
decision to that or similar effect. In my regretful conclusion there is no evidence, and nothing in
the judicial decisions before the Board, which would entitle us to find that the accused or their
agents appreciated this nor is the Board entitled to infer that they must have done. A finding or
inference to the opposite effect is in my view very much more compelling. I conclude, without
enthusiasm, that the finding of tacit waiver cannot be supported.
39 For these reasons, and those given by my noble and learned friends Lord Hope of Craighead
and Lord Clyde, I am of opinion that these appeals should be allowed. All four cases will be
remitted to the High Court for that court to consider what orders should now be made. The
accused must have their costs against the respective procurators fiscal before the Board.
LORD NICHOLLS OF BIRKENHEAD
40 I agree that for the reasons given by my noble and learned friends Lord Bingham of Cornhill,
Lord Hope of Craighead and Lord Clyde, these appeals should be allowed.
*1633
LORD HOPE OF CRAIGHEAD
41 Central to the rule of law in a modern democratic society is the principle that the judiciary must
be, and must be seen to be, independent of the executive. Writing on the independence of the
judiciary in the title on Constitutional Law in The Laws of Scotland, Stair Memorial
Encyclopaedia, vol 5 (1987), paras 663-667, Lord Fraser of Tullybelton identified security of
tenure and immunity from suit as the two most important ways of ensuring that judges perform
their duties impartially and without fear of the consequences. Of these, security of tenure is the
more vulnerable to erosion at the hands of the executive.
42 The appointment of temporary sheriffs to assist in the disposal of business in the sheriff courts
was provided for by section 11 of the Sheriff Courts (Scotland) Act 1971. At first the use which
was made of this additional judicial resource was modest and unremarkable. But as growth in the
volume of business in the sheriff courts was matched by a tightening of controls over growth in
public expenditure the executive became increasing attracted to it. Preference was given to
increasing the number of temporary sheriffs as a means of meeting the demand for more judges
on the shrieval bench. Some doubted the wisdom of this policy. Professor I D Willock in his article
“Temporary Sheriffs”, 1993 SLT (News) 352, observed that temporary sheriffs appeared to lack
the independence which was attached to the permanent sheriffs. But there was no evidence that
this was having any influence on the way in which the temporary sheriffs were in practice
discharging their responsibilities. Furthermore, the Lord Advocate made it his business during
this period to consult regularly with the Lord President and the Sheriffs Principal before making or
terminating appointments to this branch of the judiciary.
43 It was not until the coming into force of section 57(2) of the Scotland Act 1998 on 20 May
1999 that an opportunity arose for a challenge to be made to this system in the courts. It was not
long in coming. On 30 July 1999 Temporary Sheriff Crowe resumed consideration of a case
which had come before him for trial on summary complaint in Linlithgow sheriff court on 5 May
1999 and had been continued to a date after 20 May 1999 for the completion of the evidence.
Minutes had been lodged under rule 40.5 of the Act of Adjournal (Criminal Procedure Rules)
1996 (SI 1996/513 as amended by SI 1999/1346) raising a devolution issue as to whether, by
continuing with their prosecution before a temporary sheriff, the Lord Advocate had acted in a
way which was incompatible with the accused's Convention right to a fair trial by an independent
and impartial tribunal. Temporary Sheriff Crowe rejected this challenge to his presiding at the
trial. But on 11 November 1999 it was upheld on appeal by the High Court of Justiciary in Starrs v
Ruxton 2000 JC 208, the effect of which has been summarised so helpfully by my noble and
learned friend Lord Bingham of Cornhill. The Lord Advocate decided not to seek leave to appeal
against that decision to the Judicial Committee. Instead the use of temporary sheriffs for
whatever purpose in both civil and criminal cases, which had continued without interruption since
20 May 1999, was instantly terminated.
44 Legislation has been passed by the Scottish Parliament which provides for the creation of a
new category of part-time sheriffs: section 11A-D of the Sheriff Courts (Scotland) Act 1971,
inserted by the Bail, *1634 Judicial Appointments, etc (Scotland) Act 2000, section 7. The
appointment and removal from office of part-time sheriffs is the subject of new provisions which
have been designed to be compatible with the Convention rights. But the Scottish legal system
now faces the not inconsiderable problem of dealing with objections which have been taken
under the devolution legislation since Starrs v Ruxton to the disposal by temporary sheriffs of
criminal cases under both solemn and summary procedure between 20 May 1999, when section
57(2) of the 1998 Act came into force, and 11 November 1999, when their use was terminated by
the Scottish Executive.
45 The four cases which are now before your Lordships in this appeal were selected by the Law
Officers to test the various factual situations that have arisen. David Millar was convicted after
trial and sentenced by Temporary Sheriff Sinclair in solemn proceedings in Elgin on 27 August
1999. Kerry Payne, having pled guilty before Temporary Sheriff McSherry in summary
proceedings in Dundee on 16 September 1999, was sentenced by Temporary Sheriff Eccles on
12 October 1999. Paul Stewart, who had been convicted after trial in summary proceedings in
Dundee on 16 February 1999, was sentenced by Temporary Sheriff Pender on 28 June 1999.
Joseph Tracey was convicted after trial in summary proceedings in Dundee on 23 September
1999 and sentenced by Temporary Sheriff Kelly on 8 November 1999. In the event no relevant
point of distinction has emerged between them. They all stand or fall together on the same point,
which is whether the continuation of the prosecutions before a temporary sheriff was an act by
the prosecutor which was incompatible with the appellant's Convention rights.
The issues
46 In the High Court of Justiciary the Solicitor General conceded that there was a relevant act in
each case for the purposes of paragraph 1(d) of Schedule 6 to the Scotland Act 1998. He also
accepted, in the light of Starrs v Ruxton 2000 JC 208, that the temporary sheriff before whom
each case was conducted was not an “independent and impartial tribunal” within the meaning of
article 6(1) of the European Convention for the Protection of Human Rights and Fundamental
Freedoms. His argument was that, as they did not take the objection at the appropriate time, the
appellants had each waived their Convention right to object to the presiding judge on this ground.
He also argued that, regardless of the question of waiver, the acts of the temporary sheriff were
those of a de facto judge and should be treated as valid notwithstanding the decision in Starrs.
The High Court of Justiciary (Lords Prosser, Johnston and Cowie) 2000 JC 648 held that the
appellants had waived their right to object to the hearing of their cases by a temporary sheriff and
that the Lord Advocate was not obliged by section 57(2) to comply with a Convention right which
no longer existed. The appellants sought and were granted leave to appeal against this decision
to the Judicial Committee. The High Court rejected the alternative argument that the proceedings
were valid as having taken place before a de facto judge. The Crown did not seek leave to
appeal against this decision. In my opinion the application of the doctrine which gives validity to
the acts of de facto judges does not raise a devolution issue within the meaning of paragraph 1 of
Schedule 6 to the 1998 Act.
*1635
47 The appellants have identified the issue in this appeal as being whether in the proceedings
before the temporary sheriffs their agents effectively waived on their behalf their right to object to
the presiding judge. As put, the question of waiver might be thought in itself not to raise a
devolution issue as defined in paragraph 1 of Schedule 6 to the Scotland Act 1998. But the point
which the appellants wish to raise can be put in a way which does bring the question within the
jurisdiction of the Judicial Committee under that Schedule. As Mr O’Neill for the appellant Paul
Stewart said, the point on waiver bears directly on the issue whether the Lord Advocate was
acting compatibly with the appellant's Convention rights. Falling within that broad issue there are
a series of closely related issues which may be raised by way of a preliminary objection. For
example, a person cannot bring proceedings under the Act on the ground that an act is
incompatible with the Convention rights unless he would be a victim for the purposes of article 34
of the Convention if proceedings in respect of the right were brought in the European Court of
Human Rights: section 100(1). So too the question may be raised whether the person has
waived his right to object to the act which is alleged to be incompatible. In my opinion preliminary
objections of that kind fall within the scope of the questions which have been identified in
paragraph 1 of Schedule 6 as devolution issues.
48 As the argument developed however the Solicitor General sought to raise a new and more
fundamental question in answer to the appellant's devolution issue. This was whether, as the
facts have turned out, there was truly an incompatibility with the appellant's Convention rights. He
accepted the decision in Starrs v Ruxton and did not seek to attack its analysis. But he
maintained that an infringement of the right to an independent and impartial tribunal in article 6(1)
did not necessarily mean that the act of continuing with the prosecution in these cases was
unlawful as being incompatible with that right. The question that had now to be asked was
whether in the light of all the facts and circumstances they had had a fair trial. It had not been
alleged that the temporary sheriffs were affected by an actual lack of independence or
impartiality, and it had not been demonstrated that any of the appellants would benefit from being
retried or sentenced again by a permanent sheriff. There had been an irregularity, but no more
than that. So the acts of the Lord Advocate in continuing to prosecute these cases before the
temporary sheriffs were not made unlawful by section 57(2) of the Act.
49 The statutory regime which sets the context for an examination of these questions is simple
and uncompromising. Section 57(2) of the Act provides that a member of the Scottish Executive
has no power to do any act which is incompatible with any of the Convention rights. An act which
he has no power to do is an unlawful act: see the corresponding provision in section 6(1) of the
Human Rights Act 1998. Two questions must therefore be addressed. The first is, what is the act
which the Lord Advocate is said to have had no power to do? The issue of waiver belongs to that
question. The second is, if he had no power to do that act, what are the consequences? To this
question there belongs the Solicitor General's argument that the act was not unlawful as the
appellants are unable to say that they did not have a fair trial.
*1636
The “act”
50 The act of the Lord Advocate which is in issue in these cases can best be described as
conducting a prosecution in proceedings before a temporary sheriff. It is for the prosecutor to
determine whether or not a case is to be called: Renton & Brown's Criminal Procedure, 6th ed
looseleaf, para 20.02; Howdle v Beattie 1995 SCCR 349. He is the master of the instance, and
no proceedings can take place in his absence. He is entitled to withdraw the indictment or
complaint at any time: Skeen v Fullarton 1980 SLT (Notes) 46, 47. If a conviction results it is for
him to lay any information before the court which the sheriff needs to have in order to pass
sentence. From start to finish the procedure which takes place in the court is on his initiative. Had
it not been for his participation in the proceedings the temporary sheriff would not have been able
to determine the issues which were before the court.
51 In each of the cases which are before us therefore the determination of the criminal charges
by the temporary sheriff was the result of an act by the prosecutor. Mr O’Neill said that, by having
the case called in a court which was presided over by a temporary sheriff, the prosecutor was
acting incompatibly with the appellant's Convention right. But the prosecutor's act in conducting
the prosecution did not end with the calling of the case. By maintaining the prosecution up to and
including the moment when sentence was passed he was also performing an “act” within the
meaning of section 57(2) of the Act. It is for this reason that I do not see any grounds for
distinguishing those cases where all the temporary sheriff was required to do after the case was
called was to pass sentence from those where the case had to proceed to trial.
Waiver
52 The right which a person has under article 6(1) of the Convention to a hearing by an
independent and impartial tribunal is fundamental to his right to a fair trial. Just as the right to a
fair trial is incapable of being modified or restricted in the public interest, so too the right to an
independent and impartial tribunal is an absolute right. The independence and impartiality of the
tribunal is an essential element if the trial is to satisfy the overriding requirement of fairness. The
remedy of appeal to a higher court is an imperfect safeguard. Many aspects of a decision taken
at first instance, such as decisions on the credibility of witnesses or the exercise of judgment in
matters which are at the discretion of the presiding judge, are incapable of being reviewed
effectively on appeal. As Lord Steyn said in Brown v Stott [2001] 2 WLR 817, 840a, it is a basic
premise of the Convention system that only an entirely neutral, impartial and independent
judiciary can carry out the primary task of securing and enforcing Convention rights.
53 Mr O'Neill said that there was no example in the case law of the Strasbourg court of a case in
which a tribunal was held to be defective on this ground but that the right to object to it had been
waived. But the court's jurisprudence shows that this element of the right to a fair trial, like the
right to a public hearing, is not so fundamental that it is incapable of being waived if all the
circumstances which give rise to the objection are known to the applicant and the waiver is
unequivocal. In practice waiver of the right is *1637 not uncommon, as in the case where the
parties agree to the resolution of their dispute by private arbitration or the payment of a fixed
penalty is tendered in composition of a criminal charge. The legal system would be unduly
hampered if the right to a public hearing by an independent and impartial tribunal were to be
incapable in any case of being waived.
54 In H†kansson and Sturesson v Sweden 13 EHRR 1, 16, para 66 the court said that, while the
public character of court hearings constitutes a fundamental principle enshrined in article 6(1),
neither the letter nor the spirit of this provision prevents a person from waiving of his own free
will, either expressly or tacitly, the entitlement to have his case heard in public so long as this is
made in an unequivocal manner and is not counter to any important public interest. The rule that,
according to the court's case law, waiver of a right guaranteed by the Convention, in so far as it is
permissible, must be established in an unequivocal manner was emphasised in Oberschlick v
Austria 19 EHRR 389 and Pfeifer and Plankl v Austria 14 EHRR 692, in the context of a
discussion in each case as to whether there had been a waiver of the right to an independent
and impartial tribunal. The rigorous nature of the requirement that the waiver be unequivocal is
illustrated by the grounds on which the argument on waiver was rejected.
55 In Oberschlick the court observed, at p 420, para 51, that neither the applicant not his counsel
were aware until well after the hearing of all the circumstances which provided grounds for
objecting to the tribunal on the ground of a lack of impartiality. In Pfeifer waiver was rejected
because of the circumstances surrounding the decision not to object to the composition of the
tribunal. The court observed, at p 713, para 38, that the judge had approached Mr Pfeifer in the
absence of his lawyer and put a question to him whose implication, as it was essentially a
question of law, he was not in a position to understand completely. Similarly, in Werner v Austria
(1997) 26 EHRR 310 where it was contended that the applicant had waived his right to a public
hearing because he did not ask for one, the court said, at p 349, para 48, that the applicant could
not be blamed for not having made an application for a public hearing of his case which had no
prospects of success as the relevant provisions of Austrian legislation made no provision for such
a hearing in his case.
56 In Bulut v Austria 24 EHRR 84 the court held, at p 101, para 34, that the applicant's fear that
the tribunal lacked impartiality could not be regarded as objectively justified in view of the limited
role that the judge whose impartiality was questioned had played in the questioning of witnesses
during the preliminary investigation of the case. It also made this observation: “In any event, it is
not open to the applicant to complain that he had legitimate reasons to doubt the impartiality of
the court which tried him, when he had the right to challenge its composition but refrained from
doing so.” But that was a case where the facts were made known to the applicant's lawyer before
the trial began and they were mentioned again by the presiding judge before the court began to
hear evidence. In McGonnell v United Kingdom 30 EHRR 289 the court rejected the argument
that the applicant, who was legally represented and did not raise an objection to the fact that the
Bailiff was presiding over the Royal Court when it was open to him to do so, had tacitly waived
his right to an independent and impartial tribunal. One of the reasons given for this decision, in
paragraph 44, was that the Court of Appeal had held that there was no structural conflict
*1638 between the Bailiff's duties in the Royal Court and in the States of Deliberation. It appears
that this too was a case where, in the light of authority which was binding on the Royal Court, the
objection would have had no prospects of success.
57 In none of the cases which are before us was there an express waiver of the right to an
independent and impartial tribunal. The High Court held that waiver was to be implied from the
fact that the appellant's agents remained silent. As Lord Prosser 2000 JC 648, 656d-e put it, their
failure to take a plea in bar of trial was to be construed as a waiver of all rights which require to
be asserted by such a plea unless it appeared that there was some ignorance or
misapprehension which could be regarded as a reasonable explanation for not taking the point.
Acknowledging that knowledge was at the heart of the matter, he said that the court was not
concerned in this case with ignorance of facts but with an alleged ignorance or misapprehension
as to the law: p 656g-h. He said that the appellant's agents must be deemed to have known that
the effect of section 57(2) of the Scotland Act 1998 was to introduce new provisions giving
accused persons a right to an independent and impartial tribunal which could not be assumed to
be of no significance and that there were new, unsettled issues to be resolved: pp 658-659.
58 But it is one thing to know that the effect of section 57(2) was to introduce new provisions
giving accused persons a remedy in domestic law against acts of the prosecutor which were
incompatible with their article 6 Convention rights. It is quite another to be in possession of all the
information that was needed to appreciate fully that the acts in question were incompatible. The
Strasbourg jurisprudence shows that, unless the person is in full possession of all the facts, an
alleged waiver of the right to an independent and impartial tribunal must be rejected as not being
unequivocal. It was not suggested that in any of the four cases which are before us the
appellant's agents were not aware that the sheriff before whom the case had called was a
temporary sheriff or of the statutory provisions under which they had been appointed. But no
evidence has been produced by the prosecutor, on whom the onus lies, to show that they were
aware of the system which had been developed by the executive for making and not renewing
these appointments. A full description of this system was given to the court in Starrs v Ruxton
2000 JC 208, 215-218. But, as the Lord Justice-Clerk (Cullen) said, at p 215a, the content of that
description was not a matter of general public knowledge.
59 There are other reasons for not regarding any waiver that might be implied from the absence
of a plea in bar of trial based on the Convention right as unequivocal. The circumstances in which
the point was not taken are also relevant to this issue. There is no suggestion that, if it had been
taken, the prosecutor would have refrained from calling the case or that he would have conceded
the point after calling and sought an adjournment so that the case could be called before a
permanent sheriff. This is not one of those cases, of which Oberschlick 19 EHRR 389 and Pfeifer
14 EHRR 692 provide examples, where there was an undoubted right to object and a clear
remedy in the event of doing so. Lord Prosser 2000 JC 648, 659a made it clear that he was not
suggesting that the appellant's agents must be deemed to have known just how the unsettled
issues in the new legal landscape would be resolved. I agree that there is no basis for making
that assumption. But in my opinion the fact that there is no basis for it strengthens the
*1639 argument that it would not be reasonable to infer waiver in any of these cases. The
appellants were not, through their agents, in a position to make an informed choice as to what to
do, as they were in a situation where the law was unsettled and the consequences of that choice
were not predictable.
60 The Solicitor General, in a notable change of position from that which he had adopted in the
High Court, said that the issue of waiver was not central to these appeals. He maintained that the
decisive factor was the issue whether or not the appellants had a fair trial, bearing in mind the
lack of evidence as to any real difference in the result which was to have been expected if the
cases had been heard by a permanent sheriff. He did not seek to develop a sustained argument
in support of the reasons for holding waiver established which were given by the High Court. In
my opinion the High Court were in error on this point, as the appellant's agents were not in a
position to make a fully informed choice. I would hold that sufficient grounds for holding that there
was an unequivocal waiver of the Convention right have not been made out and that, subject to
the argument to which I now turn, the appellants must succeed in these appeals.
The consequences
61 The Solicitor General said that the facts and circumstances did not disclose any infringement
of the appellant's right to an independent and impartial tribunal amounting to an incompatibility
with article 6(1) of the Convention. In the absence of such an incompatibility there was no “act” of
the Lord Advocate which he had no power to do in terms of section 57(2) of the Act. Even if there
was such an incompatibility, there was nevertheless no unlawful act. He maintained that section
57(2) was disapplied by section 57(3) in this case, as he was giving effect to the primary
legislation under which the temporary sheriffs had been appointed and were authorised to sit in
the sheriff court.
62 The essential point on which he based his main argument was that the question as to whether
the Lord Advocate's act was unlawful had to be tested at the date when the challenge was made.
This had to be done in the light of all the facts and circumstances which were known to exist at
that time. All there was in this case was a perception that the temporary sheriffs lacked
independence. But the reality was that they did not lack independence in fact. Their judgment
was unaffected, and there were no grounds for saying that the verdicts of guilty were unsafe or
the sentences imposed were excessive. The appellants were unable to show that they would
derive any real benefit from being retried or sentenced again. He invited us to hold that the
decisive factor in these cases was not that the right to an independent and impartial judge had
been waived because no plea in bar of trial had been taken at the outset, but that the use of
temporary sheriffs in these cases made no difference in fact to the result.
63 In my opinion this argument overlooks the fundamental importance of the Convention right to
an independent and impartial tribunal. These two concepts are closely linked, and the
appearance of independence and impartiality is just as important as the question whether these
qualities exist in fact. Justice must not only be done, it must be seen to be done. The function of
the Convention right is not only to secure that the tribunal is free from any actual personal bias or
prejudice. It requires this matter to be *1640 viewed objectively. The aim is to exclude any
legitimate doubt as to the tribunal's independence and impartiality: McGonnell v United Kingdom
30 EHRR 289, 306, para 48, quoting Findlay v United Kingdom 24 EHRR 221, 245, para 73. As
Lord Clarke said in Rimmer v HM Advocate (unreported) 23 May 2001, the question of
impartiality, actual or perceived, has to be judged from the very moment when the judge or
tribunal becomes first seized of the case. It is a question which, at least in a case of perceived
impartiality, stands apart from any questions that may be raised about the character, quality or
effect of any decisions which he takes or acts which he performs in the proceedings.
64 There is ample authority in our domestic law to support these propositions. In Bradford v
McLeod 1986 SLT 244, the convictions and sentences were suspended on the ground of a
suspicion that the sheriff was biased even although, as the Lord Justice-Clerk (Ross) said, at p
248f, there was no reason to think that the complainers did not in fact receive fair trials. Lord
Dunpark said, at p 249a, that the question was not whether the complainers received fair trials
but whether what the sheriff said was enough to create a suspicion that he might not be impartial.
The same result followed in Doherty v McGlennan 1997 SLT 444 where there was a suspicion
about the sheriff's impartiality. These decisions were based on the rule which Eve J described in
Law v Chartered Institute of Patent Agents [1919] 2 Ch 276, 289 that, if circumstances exist
which give rise to a suspicion about the judge's impartiality, those circumstances are themselves
sufficient to disqualify although in fact no bias exists. It is also worth noting that the same rule
was applied in R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 2)
[2000] 1 AC 119 where, as Lord Browne-Wilkinson made clear, at pp 129e-f and 135h, the result
was in no way dependent on the judge personally holding any view or having any objective
regarding the question whether Senator Pinochet should be extradited. The fairness of the
proceedings was not in question, but that was not the issue which the House had to decide.
65 The principle of the common law on which these cases depend is the need to preserve public
confidence in the administration of justice: see Dimes v Proprietors of Grand Junction Canal
(1852) 3 HL Cas 759; R v Gough [1993] AC 646, 661 per Lord Goff of Chieveley. It is no answer
for the judge to say that he is in fact impartial, that he abided by his judicial oath and there was a
fair trial. The administration of justice must be preserved from any suspicion that a judge lacks
independence or that he is not impartial. If there are grounds which would be sufficient to create
in the mind of a reasonable man a doubt about the judge's impartiality, the inevitable result is that
the judge is disqualified from taking any further part in the case. No further investigation is
necessary, and any decisions he may have made cannot stand. The Solicitor General's
submission that the matter, if raised after the event, should be considered in the light of all the
facts bearing on the question whether there was a fair trial is contradicted by this line of authority.
66 There is no reason to believe that the position is any different in the jurisprudence of the
Strasbourg court. The Solicitor General said that he had not found any case where that court,
having held that a tribunal was not an independent and impartial tribunal within the meaning of
article 6(1) of the Convention and that there had been no waiver of that Convention right,
*1641 nevertheless held that there had in the event been no breach of article 6(1). In McGonnell
v United Kingdom 30 EHRR 289, 308, para 57 the court said that the applicant had legitimate
grounds for fearing that the Bailiff had been influenced by his prior participation in the adoption of
the development plan which was in issue in the case, and that the doubt which this raised,
however slight its justification, was sufficient in itself to vitiate the impartiality of the Royal Court. It
is plain from this decision that there is no room for the argument that the question whether there
was a breach of this Convention right can be tested after the event by asking whether the
proceedings overall were fair.
67 The decision in Starrs v Ruxton 2000 JC 208 leads therefore to this result. Temporary sheriffs,
viewed objectively, lacked the quality of independence and impartiality to which all accused
persons are entitled under article 6(1) of the Convention. This lack of independence and
impartiality, however slight, was sufficient to disqualify temporary sheriffs from taking any part in
the determination of criminal charges at the instance of prosecutors acting under the authority of
the Lord Advocate. It also made it unlawful for prosecutors to conduct proceedings in the sheriff
court under the authority of the Lord Advocate with a view to the determination of criminal
charges by temporary sheriffs in that court. The Lord Advocate had no power to conduct those
proceedings before them in that court, as this was incompatible with the accused's Convention
right: section 57(2) of the 1998 Act. The proceedings were thus vitiated from the moment when
they were brought before the temporary sheriffs for their determination. The Convention right and
the statutory fetter which the 1998 Act has imposed on the powers of the Lord Advocate thus
march hand in hand. Under the devolved system the disqualification of a tribunal whose objective
independence or impartiality is vitiated gives rise, at once and at the same time, to a lack of
competence on the part of the Lord Advocate.
68 As for the argument that section 57(2) was disapplied in regard to proceedings before
temporary sheriffs by section 57(3), I think that this question is sufficiently closely linked to the
question whether the Lord Advocate's exercise of his functions as prosecutor was incompatible
with the appellant's Convention rights to come within the scope of the devolution issue. But I do
not think that there is anything in the argument.
69 69 In Starrs v Ruxton the High Court rejected a submission which was made under reference
to section 6(2)(a) of the Human Rights Act 1998 that the Lord Advocate could not have acted
differently: see the Lord Justice-Clerk, at p 231b-c; Lord Reed, at p 256a. The Solicitor sought
this case to rely instead on section 6(2)(b), but in my opinion this submission too is unsound. The
Lord Advocate was not giving effect to section 11 of the Sheriff Courts (Scotland) Act 1971 within
the meaning of section 6(2)(b) of the Human Rights 1998 when these proceedings were being
conducted before the temporary sheriffs by the procurator fiscal acting on his authority. Section
11 of the 1971 Act dealt with the appointment of temporary sheriffs. It did not define the
circumstances in which they were to be used. Their appointment was not in itself incompatible
with any of the Convention rights. Everything depended upon the use that was made of them as
to whether there was an incompatibility. But no rules for their use were laid down by the statute,
so it cannot be said that there was anything in section 11 to which effect was being given by the
prosecutor.
*1642
Conclusion
70 For these reasons, and those given by my noble and learned friend Lord Bingham of Cornhill
with which I agree, I would allow these appeals. I would leave it to the High Court to make such
orders as fall to be made in consequence of this judgment in order to dispose of the various bills
of advocation and suspension which the appellants presented to that court: see rule 40.11 of the
Act of Adjournal (Criminal Procedure Rules) 1996.
LORD CLYDE
71 On 20 May 1999 the holder of the office of Lord Advocate in Scotland became a member of
the new Scottish Executive by virtue of the arrangements for devolution introduced by the
Scotland Act 1998. On 11 November 1999 judgment was given by the High Court of Justiciary in
Starrs v Ruxton 2000 JC 208. In that case it was held that the continuation of a trial which was in
course before a temporary sheriff constituted a violation of the right of the accused under article
6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms
to a trial before an “independent and impartial tribunal”. Section 11 of the Sheriff Courts
(Scotland) Act 1971 empowers the Secretary of State to appoint a temporary sheriff to act in a
sheriffdom in certain circumstances. While the appointments were made by the Secretary of
State, the Lord Advocate had in recent years come to play an important part in the finding of
candidates for the office, in considering applications, in consulting and obtaining opinions on the
suitability of candidates, and eventually forwarding a finalised list to the Scottish Courts
Administration for the appointments to be made. Appointments were in practice made for a
period of one year only and the Lord Advocate also played a significant part in the
re-appointments of current temporary sheriffs. By section 11(4) of the 1971 Act the office of
temporary sheriff was open to recall. That factor together with the one year limit were the two
critical considerations which led the court in Starrs to hold that the temporary sheriff in that case
did not possess and did not appear to possess the independence required by article 6(1). The
lack of a security of tenure of the office was seen to be fatal to his independence.
72 The appellants in three of the four appeals before us have been convicted and sentenced by
temporary sheriffs during the period between 20 May 1999 and 11 November 1999. In the fourth
case (Stewart) the proceedings began and the conviction occurred before 20 May 1999 but the
proceedings continued after that date and the sentence was imposed on 28 June 1999. In one
case (Millar) the proceedings were on indictment, while the other three cases were summary
proceedings. In Payne the accused pled guilty and was subsequently sentenced. In Tracey the
accused was found guilty after trial and subsequently sentenced. The four cases represent
different situations but all give rise to the same problem. Following on the ruling in Starrs the
appellants sought to have the effect of that decision applied to their own cases. They raised their
appeals by way of bills of suspension, or in the case of Millar a bill of advocation. The High Court
of Justiciary refused the Bills, principally on grounds of waiver.
73 It was common ground between the parties before us that the appeals raised a “devolution
issue” within the meaning of paragraph 1(d) of Part I of Schedule 6 to the Scotland Act 1998
*1643 It is accepted that although it was the procurator fiscal who was purportedly exercising the
function it was still to be treated as an exercise by the Lord Advocate. There was some
discussion about the precise identity of the function in issue. “Functions” is defined in section
126(1) as including powers and duties. In section 57(2) it is provided that a member of the
Scottish Executive has no power to do any act so far as it is incompatible with any of the
Convention rights. But it was not suggested that there was any distinction to be made for the
purpose of these provisions between the purported exercise of a function by the Lord Advocate
and an act by him.
74 For present purposes it is useful to identify what was the purported function or the act. The
suggestion was made that it might be the calling of the case before the temporary sheriff, but
even although the prosecutor may take an initiative in that matter, that approach seems to me to
be too narrow. In my view in the circumstances of the present appeals this is not a matter to be
analysed into a detailed study of every step which he took. The function which he was purporting
to exercise in each case was that of conducting a prosecution. That was the act which he was
doing on every occasion when the case came before the temporary sheriff. The question then is
whether in conducting and continuing to conduct these cases before a temporary sheriff, his acts
were incompatible with the appellant's Convention rights.
75 It was not submitted that the decision in Starrs v Ruxton 2000 JC 208 was wrong. We were
not invited to overrule it. The Solicitor General sought to distinguish it on the basis that the
challenge was raised in Starrs while the proceedings were still current, while in the present cases
the point has been raised by way of appeal some time after the dates of the conclusion of the
cases. This difference enabled him to argue that in the present cases the whole circumstances
could be viewed in the round in a way which was not possible and was not attempted in Starrs,
and in a way which would accord with the global approach generally taken by the European
Court of Human Rights. But while it is possible in that way to view the present cases in light of
the whole course which they have taken, one is still faced with the decision in Starrs that a
temporary sheriff is not an independent tribunal. What the Solicitor General sought to do was to
argue that on the global view available in the present cases it can be held that the appellants
have in the totality of the circumstances, and notwithstanding the lack of independence of the
tribunal, nevertheless had a fair trial.
76 This was a somewhat different argument from the one which was advanced before the High
Court and accepted by them. No longer was the Solicitor General basing his case on waiver. He
accepted that the focus of the argument had changed. The appellants had put at the forefront of
their case a submission that the acts of the procurator fiscal were in light of section 57(2) ultra
vires and accordingly that they were null and void. It was in response to this argument that the
Solicitor General submitted that on a global view of the whole facts and circumstances in each of
the four cases it could still be held that they had each enjoyed a fair trial and that there was
nothing in the acting of the procurator fiscal which ran counter to article 6(1). Thus as the case
developed before us it became evident that the battle was now joined on a quite different field
than that on which the parties had been engaged before.
*1644
77 Before leaving the former scene of combat I should say that I find it difficult to accept the
argument on waiver on which the High Court proceeded. There is a question, to which I shall
return later, whether in the context of criminal proceedings the right to an independent and
impartial tribunal can always be waived, but, even assuming that it can be, I have not been
persuaded that a case of waiver has been established in the present cases. No doubt the
accused, or at least their legal advisers, will have known of the opportunity afforded by the
Scotland Act 1998 to challenge acts by the Lord Advocate which were incompatible with a
Convention right. No doubt they will have been aware that under the Convention their clients
were entitled to trial before an independent and impartial tribunal. They may well have known that
the sheriff before whom the case was being conducted was a temporary sheriff. But it has not
been shown that they knew of the lack of security of tenure of the temporary sheriffs in general
nor of the involvement of the Lord Advocate in their appointment. The way in which they were
appointed and used, at least since May 1997, was, as the Lord Justice-Clerk (Cullen) observed in
Starrs 2000 JC 208, 215, not a matter of general public knowledge. Without knowing the factual
background to the appointment of temporary sheriffs and the close participation of the Lord
Advocate in that process it would not be possible to make any waiver of the objection to the case
proceeding before such a tribunal. Waiver must essentially depend upon a knowledge of the
relevant facts on which the right to object is based. In the present cases there is no evidence to
support the proposition that the accused, or their representatives, knew or even suspected that
there might be grounds for objection. Without evidence to demonstrate such knowledge I do not
consider that a case of waiver can be established. The Solicitor General made some
submissions on the matter of waiver but his principal concern was to treat the possibility of waiver
as an ingredient in the global view which he sought to promote and the submissions which he
made in regard to waiver were to an extent at least directed to the significance of that possibility
in the context of an overall view.
78 The new approach to the case requires some consideration of article 6(1) and I now turn to
that article. It is critical for the respondent's argument that the requirement for an independent
and impartial tribunal should be seen as simply an aspect of the governing requirement for
fairness, so that it would be possible to sustain the validity of a criminal conviction on grounds of
fairness even although the tribunal lacked independence and impartiality. The approach which he
advocates makes fairness the ultimate test, so that if on a review of the whole circumstances the
trial can be found to be fair the lack of an independent and impartial tribunal can be held not to be
fatal.
79 I would accept that on a broad view of article 6 the ultimate essential is that a fair trial should
be secured. In Deweer v Belgium 2 EHRR 439, 460, para 49 it was recognised that the “right to a
court” is a constituent element of the right to a fair trial. But how the goal of a fair trial is achieved
is a matter of the particular circumstances of each case so that general propositions cannot
always be usefully or safely prescribed. The hearing to which everyone is entitled in terms of
article 6(1) is a hearing which is fair, which is public, which is held within a reasonable time, and
which is held by an independent and impartial tribunal established by law. The concept of
*1645 fairness may, as was recognised in Brown v Stott [2001] 2 WLR 817, 859, be in itself an
absolute, but what is comprised in the concept is a matter of the circumstances of the particular
case. In Brown the implied right not to incriminate oneself was seen as subsumed under the
governing requirement for fairness. But that case was not concerned with the issue of an
independent and impartial tribunal. The requirement that the hearing be in public is expressly
qualified in the article itself, so it is not a universal necessity and it can be waived (e g Zumtobel v
Austria (1993) 17 EHRR 116, 133, para 34, H†kansson and Sturesson v Sweden 13 EHRR 1,
16, H v Belgium (1997) 10 EHRR 339). The hearing must be within a reasonable time. But while
that may in itself be categorised as an absolute requirement, the application of the concept, like
the concept of fairness, is matter of consideration in light of the facts and circumstances of the
particular case. No doubt the particular rights set out in article 6(2) and (3) are all aspects of the
general requirement of fairness.
80 There remains the requirement that the tribunal be independent and impartial and established
by law. Freedom from bias may be analysed into distinct considerations of structural
independence and objective impartiality, but the two concepts are closely linked and it may be
sufficient to speak simply of independence. Judicial independence is of fundamental
constitutional importance. It is an indispensable condition for the preservation of the rule of law. It
is a principle which has been stoutly protected by the Scottish judges for centuries (Mitchell,
Constitutional Law, 2nd ed (1968), p 261). We are fortunate in this country that for a very
considerable length of time this principle has never been lost, although through the annals of
history there may have been times when its light burned less brightly. But the complaisance
which such a situation can inspire should never allow it to be forgotten that the principle is not so
robust that it can always withstand the pressures which some forms of government may impose
upon it. In my view the requirement that a tribunal be independent and impartial is of such
fundamental importance that it should not lightly be subordinated to other considerations of
fairness.
81 As matter of generality a lack of independence in the tribunal may not necessarily be fatal to
the validity of a hearing. The recent decision of the House of Lords in R (Alconbury
Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2
WLR 1389 provides one example where in the particular context of town and country planning an
overall fairness in the process may be achieved despite a lack of independence in one of the
stages. In such cases the global view of the whole proceedings may make it possible to conclude
that overall there was a fair trial. But it is important to notice that the impartiality of the tribunal in
criminal cases is not a matter which can be cured by the existence of a right of appeal to a court
which itself satisfies the requirements of article 6(1) (De Cubber v Belgium 7 EHRR 236). In
Findlay v United Kingdom 24 EHRR 221 the court held that the lack of independence of the
tribunal in court-martial proceedings was not remedied by the presence of safeguards, which
included an oath taken by the court-martial board, and stated, at p 246, para 79:
“Nor could the defects… be corrected by any subsequent review proceedings. Since the
applicant's hearing was concerned with serious *1646 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)”
It is clear that as matter of generality it is possible to waive a Convention right. It has been
repeatedly affirmed that to be effective a waiver must be established in an unequivocal manner
and there must be “minimum guarantees commensurate to its importance”: Pfeifer and Plankl v
Austria 14 EHRR 692, 712 para 37. But the critical question here is whether a waiver is possible
where the matter is one of a lack of independence and the case is a criminal one. I have not
been persuaded from the material put before us that an objection to the lack of independence
and impartiality “such as the one presented by the appellants here” has been recognised by the
European Court of Human Rights as one which can be waived. In Deweer v Belgium 2 EHRR
439, 460-461, para 49 the court recognised that waivers could be made in civil matters in the
form of arbitration clauses and in criminal cases in the form of fines paid by way of composition.
The court stated that: “The waiver, which has undeniable advantages for the individual
concerned as well as for the administration of justice, does not in principle offend against the
Convention.” But that is a very different kind of situation from that which is before us in the
present cases. In Pfeifer and Plankl v Austria 14 EHRR 692, 713, para 39 the court held that the
decision in question was invalid “even supposing that the rights in question can be waived by a
defendant”. In Bulut v Austria 24 EHRR 84 two opportunities were given to the accused's lawyer
to challenge one of the judges on the ground of his previous involvement in the case. On the first
occasion the lawyer did not reply to the note asking whether he wished to make a challenge. On
the second occasion, at the outset of the trial, the record of the court was to the effect that the
parties had waived the right to raise the point. The European Court of Human Rights held that the
fear of lack of impartiality lacked objective justification, adding, at p 101, para 34, that in any
event “it is not open to the applicant to complain that he had legitimate reasons to doubt the
impartiality of the court which tried him, when he had the right to challenge its composition but
refrained from doing so”. The court did not decide whether a waiver could be made. Judge
Morenilla, at pp 117-118, para 5, in his partly dissenting opinion thought the right to an impartial
tribunal was an absolute right which could not be waived and he pointed out that the court had
had an opportunity to decide the issue but had not considered it appropriate to do so. I note that
in Scotland it has even been doubted whether a declinature by a judge who was a shareholder in
one of the parties to a criminal proceeding could be waived by consent of the parties: Caledonian
Railway Co v Ramsay (1897) 24 R(J) 48.
82 In light of this consideration of the fundamental importance of the right to an independent
tribunal in criminal cases I turn to consider the Solicitor General's proposition that if a global view
is taken of the whole proceedings in each of these four cases it should be held that in each case
there has been a fair trial. The Solicitor General listed several factors which he argued supported
the fairness of the proceedings. All the appellants had been found or had pled guilty. There was
nothing to show that the verdicts were unsafe or that a full-time sheriff would have done anything
different from what was done, so that there was no real purpose to be served by *1647 requiring
the appellants to undergo a second trial. The appellants had not made any challenge to the
proceedings until after the proceedings were concluded. No criticism was made that the
particular sheriffs in fact lacked independence or impartiality. Nor was it said that the system by
which they had been appointed in fact lacked independence.
83 But, even if one was to adopt the global approach put forward by the Solicitor General and
test the matter by the criterion of fairness, it seems to me that there are other considerations to
be taken into account. What is required here is a consideration of all the circumstances and
forming a view in the light of all of them. The decision in Starrs was pronounced as one of
general application to temporary sheriffs. The Lord Justice-Clerk stated 2000 JC 208, 213d: “The
point is of general importance, not only for its potential effect in individual cases but also for any
future consideration of the terms of the relevant legislation and any appointments made
thereunder.” So one has the situation of the appellants having been tried, convicted and
sentenced by a tribunal which was not independent. In the absence of any defence of waiver it
seems to me far from fair to them that they should not have the benefit of a decision which plainly
would have been applicable to their cases. The appearance that justice is being done is as
important as the actual doing of justice. The independence of the judiciary is not an empty
principle which can be forgotten simply because one thinks that a correct conclusion has been
reached. Rightly or wrongly there is always room for an uneasy fear that there might have been
some improper influence affecting the mind of the judge where he lacks independence. The
principle is far too important to allow it to be passed over in the way which the respondent
suggested.
84 The Solicitor General's final argument was that even if the actings in question were
incompatible with article 6(1) nevertheless they should not be held to be outside his powers in
terms of section 57(2) because they fell within the scope of section 57(3). That section provides
that subsection (2) is not to apply to an act of the Lord Advocate in prosecuting any offence
which because of section 6(2) of the Human Rights Act 1998 is not unlawful under section 6(1).
Section 6(2) excepts the unlawfulness of an act incompatible with the Convention in two
circumstances. The first is where because of some provision of primary legislation he could not
have acted differently. That does not apply here and it was on the second that the Solicitor
General sought to found his argument. It provides:
“(b) in the case of one or more provisions of… primary legislation which cannot be read
or given effect in a way which is compatible with Convention rights, the authority was
acting so as to give effect to or enforce those provisions.”
The argument then is that section 11 of the Sheriff Courts (Scotland) Act 1971 is incompatible
with the Convention and the procurator fiscal in conducting the prosecution was “giving effect” to
that provision. In my view it is too strained a construction of section 57(3) to say that proceeding
with a case before a temporary sheriff is giving effect to the power to appoint temporary sheriffs.
85 It should not need to be said that these cases cast no reflection at all on the character or
conduct of the temporary sheriffs engaged on them, nor indeed on any other of the temporary
sheriffs. Their personal integrity and *1648 independence of mind are not in doubt and it is not
suggested that there was any conscious or unconscious bias or any subjective partiality felt or
displayed in their work. But it is as important that the appearance of justice be safeguarded as
well as the actual doing of justice and it is on that account that I am driven to the conclusion that
the convictions in these four cases cannot be held to be fair. Now that it has been held that
temporary sheriffs lack independence, a decision which has not been questioned in these
appeals, and in the absence of an effective plea of waiver, I see no alternative to a finding that
the acts of the prosecutors in each of these four cases were unlawful for the same reasons as
those which applied in Starrs 2000 JC 208. The principle of independence and impartiality of the
tribunal “particularly in criminal cases” is too precious to be put at any risk. I should be sorry if in a
case like the present we were to allow any derogation from that principle, even if the
consequences of holding to it involve the invalidation of convictions which from every other angle
were safe and unimpeachable.
86 I would accordingly allow these appeals.
LORD SCOTT OF FOSCOTE
87 I agree that for the reasons given by my noble and learned friends, Lord Bingham of Cornhill,
Lord Hope of Craighead and Lord Clyde, these appeals should be allowed.
Representation
• Solicitors: Purdie & Co, Edinburgh; Patrick Wheatley, Edinburgh; Drummond Miller WS,
Edinburgh; Purdie & Co, Edinburgh; Crown Agent, Edinburgh.
Appeals allowed.
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*1615 Millar v Dickson

[2002] 1 W.L.R. 1615

• Bulut v Austria (1996) 24 EHRR 84

The following additional cases were cited in argument:

• Neumeister v Austria (No 2) (1974) 1 EHRR 136

The High Court's decision in the instant cases

18 These observations, although directed to impartiality, would apply equally to independence. I

The court continued, at p 246, para 30:

A violation of article 6(1) was accordingly found.

relate to the present case.”

“Subsection (2) does not apply to an act of the Lord Advocate—

Section 6 of the Human Rights Act 1998, so far as relevant, provides:

“(2) Subsection (1) does not apply to an act if—

(c) Incorporated Council of Law Reporting for England & Wales

© 2008 Sweet & Maxwell Ltd

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