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You are here: BAILII >> Databases >> The Judicial Committee of the Privy Council Decisions >> Kearney v. Her Majesty's Advocate (High Court of Justiciary Scotland) [2006] UKPC D1 (6 February 2006) URL: https://www.bailii.org/uk/cases/UKPC/2006/D1.html Cite as: 2006 SLT 499, 20 BHRC 157, 2006 SC (PC) 1, [2006] HRLR 15, 2006 GWD 15-284, 2006 SCCR 130, [2006] UKPC D1, [2006] UKPC D 1 |
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Kearney v. Her Majesty's Advocate (High Court of Justiciary Scotland) [2006] UKPC D1 (6 February 2006)
ADVANCE COPY
Privy Council Appeal DRA No 1 of 2005
Arthur Kearney
Appellant
v.
Her Majesty's Advocate Respondent
FROM
THE HIGH COURT OF JUSTICIARY
SCOTLAND
- - - - - - - - - - - - - - - - -
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL
Delivered the 6th February 2006
- - - - - - - - - - - - - - - - -
Present at the hearing:-
Lord Bingham of Cornhill
Lord Hope of Craighead
Baroness Hale of Richmond
Lord Carswell
Lord Brown of Eaton-under-Heywood
- - - - - - - - - - - - - - - - -
Lord Bingham of Cornhill
___________________
Lord Hope of Craighead
"A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community Law."
Section 44(1)(c) of the Act provides that the Lord Advocate is a member of the Scottish Executive. Section 126(1) provides that the term "Convention rights" has the same meaning as in the Human Rights Act 1998. The first sentence of article 6(1) states:
"In the determination of his civil rights and obligations and of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
"4. The trial took place before a temporary judge. It is submitted that the temporary judge was not an independent and impartial tribunal. It is understood that he was appointed by the Scottish Ministers. The Lord Advocate is one of the Scottish Ministers. Reference is made to section 44 of the Scotland Act 1998. In the circumstances justice was neither done nor was it seen to be done.
Separatim. Reference is made to the appellant's right to a fair trial guaranteed by article 6(1) of the European Convention on Human Rights. The appellant was entitled to trial before an independent and impartial tribunal. That right was denied to him. The Lord Advocate's act in calling the case, leading evidence and inviting the jury to convict were all acts within the meaning of section 57(2) of the Scotland Act 1998. These acts were ultra vires since they were incompatible with the appellant's right to a fair trial. Reference is made to the preceding paragraph.
Accordingly there has been a miscarriage of justice."
"Separatim. For the Lord Advocate to seek to support the convictions would be for him to act in a way which would be incompatible with the Minuter's rights under article 6(1) of the Convention and accordingly ultra vires."
The Convention right
"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."
In making these observations the court was following a consistent line of previous decisions to the same effect. The factors to be examined in determining whether a body can be considered impartial were analysed in the same terms in Campbell and Fell v United Kingdom (1984) 7 EHRR 165, para 78. In Piersack v Belgium (1982) 5 EHRR 169, para 30 it was emphasised that it was not possible to approach the issue from the subjective viewpoint only and that an objective approach was also needed in determining whether the tribunal offered guarantees sufficient to exclude any legitimate doubt about its impartiality.
"According to the court's consistent case-law, the existence of impartiality for the purposes of article 6(1) must be determined according to a subjective test where regard must be had to the personal conviction and behaviour of a particular judge, that is, whether the judge held any personal prejudice or bias in a given case; and also according to an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (see, inter alia, Fey v Austria, judgment of 24 February 1993, Series A no 255, p 12, paras 27, 28 and 30; Wettstein v Switzerland, no 33958/96, para 42, ECHR 2000-XII). It must be decided in each individual case whether the relationship in question is of such a nature and degree as to indicate a lack of impartiality on the part of the tribunal (see Pullar v United Kingdom, judgment of 10 June 1996, Reports of Judgments and Decisions 1996-III, p 794, para 38)."
In paras 31-32 the court reminded itself, as to the objective test, that it must be determined whether there are ascertainable facts which may raise doubts as to the judge's impartiality, that appearances may be important and that what is at stake is the confidence which the courts must inspire in the public in a democratic society. The problem in that case was that one of the judges had represented the applicant's opponents at an earlier stage in the proceedings and that his daughter continued to do so: para 34. Although the judge's previous involvement was minor and remote and his daughter had ceased to represent the applicant's opponents before the Supreme Court gave its decision, these facts created a situation which was capable of raising legitimate doubts as the judge's impartiality: para 35.
The appointment and use of temporary judges
"(1) If it appears to the Lord President of the Court of Session that it is expedient as a temporary measure to make an appointment under this section in order to facilitate the disposal of business in the Court of Session or the High Court of Justiciary he may, with the consent of the Scottish Ministers, appoint a person who –
(a) has held office as a judge of the Court of Session; or
(b) has held office as a Lord of Appeal in Ordinary and who, at the time of his appointment as a Lord of Appeal in Ordinary, was eligible for appointment as a judge in the Court of Session,
and, in either case, has not reached the age of 75 years, to act as a judge of the Court of Session and High Court of Justiciary during such period or on such occasions as the Lord President thinks fit but, subject to subsection (4) below [which allows the judge to continue beyond 75 for the purpose of dealing with matters relating to a case which came before him while acting as a judge], a period during which or occasion on which a person may so act shall not extend beyond or be after he reaches the age of 75 years.
(2) A person while acting under this section shall, subject to subsection (3) below, be treated for all purposes as, and accordingly may perform any of the functions of, a judge of the Court in which he is acting.
(3) A person shall not, by virtue of subsection (2) above, be treated as a judge of the Court of Session or the High Court of Justiciary for the purposes of any statutory provision or rule of law relating to -
(a) the appointment, retirement, removal or disqualification of judges of that Court (including, without prejudice to the foregoing generality, any statutory provision or rule of law relating to the number of judges who may be appointed);
(b) the tenure of office and oaths to be taken by such judges;
(c) the remuneration, allowances and pensions of such judges."
"As in England and Wales, we believe that there would be much to be gained in there being comprehensive powers to appoint temporary judges, providing that the Lord President of the day has a voice in the making of such appointments and the use to be made of them. Legislation would be needed. We recommend that this aspect should be reconsidered."
"Notwithstanding any provision in any enactment, if it appears expedient to the Scottish Ministers they may, in accordance with the provisions of paragraphs 5 to 11 of [Schedule 4], and after consulting the Lord President, appoint persons to act as temporary judges of the Court of Session."
The relevant provisions of Schedule 4 are these:
"5. Any person who is eligible under –
(a) paragraph 1 above [appointment of sheriffs principal, sheriffs and solicitors as judges of the Court of Session]; or
(b) any other enactment [see article XIX of the Act of Union 1707],
to appointment as a judge of the Court of Session may be appointed as a temporary judge under section 35(3) of this Act for such period as the Secretary of State may determine, but, subject to paragraph 9 below [which allows the judge to continue beyond the period for which he was appointed for the purpose of dealing with matters relating to a case which came before him while acting as a judge], no such appointment shall extend beyond the date on which the person reaches the age of 75 years.
6. Subject to paragraph 7 below, a person appointed as a temporary judge under the said section 35(3) shall, while so acting, be treated for all purposes as, and accordingly may perform any of the functions of, a judge of the Court in which he is acting.
7. Subject to paragraph 8 below, a person shall not, by virtue of paragraph 6 above, be treated as a judge of the Court of Session for the purposes of any other enactment or rule of law relating to -
(a) the appointment, tenure of office, retirement, removal or disqualification of judges of that Court, including, without prejudice to the generality of the foregoing, any enactment or rule of law relating to the number of judges who may be appointed;
(b) the remuneration, allowances or pensions of such judges.
8. A person appointed to be a temporary judge of the Court of Session shall, by virtue of such appointment, be a temporary Lord Commissioner of Justiciary in Scotland."
Discussion
Conclusion
____________________
Baroness Hale of Richmond
For the reasons given by my noble and learned friends, Lord Bingham of Cornhill and Lord Hope of Craighead, I too would dismiss this appeal.
____________________
Lord Carswell
"4. 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 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."
Lord Reed considered the link between the concepts at p 252:
"48. This matter was raised on behalf of the complainers as one of the factors relevant to an assessment of the temporary sheriff's independence. In that regard, it has to be borne in mind that 'independence' within the meaning of Article 6 has been said to include independence from the parties to the proceedings: Campbell and Fell, paragraph 78 (a formulation which has been criticised as confusing independence - regarded as an aspect of the separation of powers - with impartiality: see e.g. Van Dijk and Van Hoof, Theory and Practice of the European Convention on Human Rights, 3rd edition, 1998, p.451; Soyer and De Salvia, in La Convention Européene des Droits de l'Homme, ed. Pettiti, Decaux and Imbert, 2nd edition, 1999 p.260). Nevertheless, I consider this matter to be one which raises primarily an issue of impartiality. I do not regard it as necessary to attempt an exhaustive definition of the concepts of independence and impartiality or to define the distinction between them (questions which have troubled the Supreme Court of Canada, notably in the case of R. v Lippé (1990) 60 CCC (3d) 34). So far as Article 6 is concerned, it is clear that the concepts of independence and 'objective impartiality' (which I shall describe in a moment) are closely linked, and the European Court of Human Rights often considers them together (e.g. Findlay, paragraph 73). In the present case, some of the concerns raised by the complainers in respect of the legal practices of temporary sheriffs might be viewed as relating to a possible lack of independence from the parties - that is to say, they relate to the relationship between the temporary sheriff and the parties - while others pertain directly to the thinking processes of the temporary sheriff. All of them can be considered as affecting the appearance of impartiality as well as being the consequence of the combined status of lawyer and part-time judge. They can all be regarded as pertaining to 'objective impartiality' and can be considered under that head, which can also cover all the issues which might arise under the head of independence, notably whether the court presents an appearance of independence from the parties."
"Although there is obviously a close relationship between independence and impartiality, they are nevertheless separate and distinct values or requirements. Impartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case. The word 'impartial', as Howland C.J.O. noted [in the lower court], connotes absence of bias, actual or perceived. The word 'independent' in s. 11(d) reflects or embodies the traditional constitutional value of judicial independence. As such, it connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly in the Executive Branch of government, that rests on objective conditions or guarantees."
____________________
Lord Brown of Eaton-under-Heywood