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You are here: BAILII >> Databases >> The Judicial Committee of the Privy Council Decisions >> Procurator Fiscal, Kirkcaldy v Kelly (Scotland) [2003] UKPC D1 (5 March 2003) URL: http://www.bailii.org/uk/cases/UKPC/2003/d1.html Cite as: [2003] UKPC D1, [2004] AC 681, [2003] 2 WLR 1586, 2003 GWD 7-164 |
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Procurator Fiscal, Kirkcaldy v Kelly (Scotland) [2003] UKPC D1 (5 March 2003)
Privy Council DRA. No. 2 of 2002
Hellen Clark (Procurator Fiscal, Kirkcaldy) Appellant
v.
Christopher John Kelly Respondent
FROM
THE HIGH COURT OF JUSTICIARY
SCOTLAND
---------------
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 11th February 2003
------------------
Present at the hearing:-
Lord Bingham of Cornhill
Lord Hoffmann
Lord Hope of Craighead
Lord Hutton
Lord Rodger of Earlsferry
------------------
Lord Bingham of Cornhill
_____________________
Lord Hoffmann
"The court recalls that the justices' clerk acts solely to assist the magistrates, who are lay judges. This may involve giving advice on law or procedure, taking notes of evidence and on occasion conducting examination of witnesses on the justices' behalf...There is no question of the justices' clerk enjoying any role in the proceedings independent of the justices, or in having any duty with regard to influencing a decision in any particular direction. In that respect, the clerk's position can be distinguished from officers such as the procureur général, avocat général or commissaire du gouvernement, who make submissions to the courts concerning their personal views on the outcome of particular cases...On that basis, no problem arises in the normal course of events if a justices' clerk retires with the justices and it is not known what assistance, if any, he or she in fact furnishes to them. Assuming the clerk fulfils the role provided by law, his or her presence during the deliberations of the justices must be regarded as part of the ordinary functioning of the court."
"In this connection the court would once more refer to the uncontested safeguards attending the procedure before the inspector: the quasi-judicial character of the decision-making process; the duty incumbent on each inspector to exercise independent judgment; the requirement that inspectors must not be subject to any improper influence; the stated mission of the Inspectorate to uphold the principles of openness, fairness and impartiality...Further, any alleged shortcoming in relation to these safeguards could have been subject to review by the High Court."
________________________
Lord Hope of Craighead
Evolution and history
"1. Confidence and harmony between the bench and the clerk of court are important to the efficiency of the court. In some procedural matters the role of each may vary depending on local practice. The important point is that the conduct of proceedings is the responsibility of the justice, whether he is sitting alone or as chairman of a multiple bench.
2. The clerk is not a member of the court, and does not share the court's responsibility for its decisions. He is an official who is appointed and employed, on a full-time or part-time basis, by the local authority. He must be an advocate or solicitor. The post may be held by the same person who undertakes the duties of clerk of the peace."
[Note: the functions of the clerk of the peace, who acts as clerk to the justices of the area as a body, are set out in section 18(4) of the 1975 Act.]
"3. It is the clerk's duty, by statute, to advise the justices, either at their request or on his own initiative, on matters of law, practice and procedure, and so he is able to guard them against making mistakes, especially in respect of some of the technicalities of procedure and evidence. He does not offer judgement. Normally, he does not question witnesses although he may suggest questions to the justice. Unless there is good reason for not doing so, justices should accept the clerk's advice on procedural and legal matters. While some cases involve no special difficulties and can be decided without reference to the clerk for advice, there are occasions when there are legal arguments or difficulties in interpreting an Act of Parliament. At these times it is best that the justice retire for consultation with the clerk. However, the clerk takes no part in deliberations on conviction and sentence. On sentencing he is usually only concerned to advise on the powers of the court, though on occasions justices may be informed as to the level of penalty generally imposed by the court."
The devolution issue
Structure
"either the jurisdictional organs themselves comply with the requirements of article 6(1), or they do not so comply but are subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of article 6(1)."
Can it be said then that the High Court of Justiciary has "full jurisdiction" over decisions taken by lay justices in the district court when it does not have complete power to rehear the case?
"It appears to me that the requirement that a court or tribunal should have 'full jurisdiction' cannot be mechanically applied with the result that, in all circumstances and whatever the subject matter of the dispute, the court or tribunal must have full power to substitute its own findings of fact, and its own inferences from those facts, for that of the administrative authority concerned. Whether the power of judicial review is sufficiently wide to satisfy the requirements of article 6 must in my view depend on a number of considerations, including the subject matter of the dispute, the nature of the decision of the administrative authorities which is in question, the procedure, if any, which exists for review of the decision by a person or body acting independently of the authority concerned and the scope of that power of review."
As Lord Hoffmann explained in Alconbury, at p 1416, para 87, "full jurisdiction" means full jurisdiction to deal with the case as the nature of the decision requires.
Practice
"(1) The content of any advice on the law given privately by the clerk to the justice which the clerk, or indeed the justice, perceives as possibly controversial; (2) Observation by the clerk that some authority has been cited, or submission made, which is inaccurate as to the current position in law; and (3) More generally, any matter which the clerk, or indeed the justice, perceives could be the object of relevant submission by one or other or both of the defence and the prosecution."
It respectfully seems to me that this wording is unduly complicated, and that it leaves too much to what the clerk or the justice perceives as controversial or as likely to be the object of submission by the parties. The parties may quite legitimately have different views as to whether the advice which is being given by the clerk is controversial or in need of correction. I would favour a simpler and more precise formula which was capable of being applied uniformly by every court.
"8. At any time, justices are entitled to receive advice to assist them in discharging their responsibilities. If they are in any doubt as to the evidence which has been given, they should seek the aid of their legal adviser, referring to his/her notes as appropriate. This should ordinarily be done in open court. Where the justices request their adviser to join them in the retiring room, this request should be made in the presence of the parties in court. Any legal advice given to the justices other than in open court should be clearly stated to be provisional and the adviser should subsequently repeat the substance of the advice in open court and give the parties an opportunity to make any representations they wish on that provisional advice. The legal adviser should then state in open court whether the provisional advice is confirmed or if it is varied the nature of the variation."
Mr Macaulay said that he saw no difficulty in applying this guidance in Scotland. It is also consistent with the guidance which the Board gave to the Professional Conduct Committee of the General Medical Council which, like the district courts, is composed of lay members who are advised by a legal assessor on matters of law, in Nwabueze v General Medical Council [2000] 1 WLR 1760, 1775.
Conclusion
__________________________
Lord Hutton
___________________________
Lord Rodger of Earlsferry
"1 Is the clerk of court to the district court at Kirkcaldy in law part of the tribunal which constitutes that court for the purposes of article 6(1)?
2 Are private communications between the clerk of court and the justice of the peace part of the trial then proceeding before the court?
3 If the clerk of court is not part of that tribunal, is the district court surrendering its independence in accepting advice from someone who is not part of that court?"
Your Lordships are not bound by the terms of the questions and can determine the issues that arise in whatever seems the most appropriate form. As Mr Macaulay QC submitted for the Lord Advocate, the essential issue can be satisfactorily encapsulated in a single question to this effect: will a trial of the criminal charge against the minuter in the district court at Kirkcaldy inevitably infringe his rights under article 6(1) of the Convention? If so, then the Crown has no power to bring the minuter to trial: section 57(2) of the Scotland Act 1998; R v HM Advocate [2002] UKPC D3 2003 SLT 4. The questions in the reference do no more than highlight certain of the arguments that were presented in relation to this issue.
"It shall be the duty of each local authority to appoint and employ, whether on a full-time or part-time basis, an officer to act as clerk of the district court for their area, who shall also act as legal assessor in that court, and any person so appointed shall be an advocate or a solicitor."
As that provision indicates, the clerk carries out all the usual administrative and other duties of a clerk of court but also acts as a legal assessor, giving legal advice to the justice. In addition, where someone appeals on a point of law against his conviction in a trial presided over by a justice, it is the clerk's job to prepare and issue the draft stated case: section 179(1) of the 1995 Act. The justice cannot make any alterations to the draft without a hearing to consider them (section 179(4)) but it is ultimately the duty of the justice to state and sign the case which the clerk sends to the appellant and copies to the other side: section 178(7) and (8). In practice clerks of court, whether part-time or full-time, are employed by the local authority under contracts which do not give them the kind of security of tenure now enjoyed by the justices. Many clerks are indeed members of the legal staff of the local authority whose duties include acting as clerk to the district court as and when required.
"It was understood to be conceded by the Solicitor General that as matters stand, if a district court clerk was held to be a member of the district court as a matter of law, then the necessary security of tenure of office for article 6(1) purposes would be absent."
It followed that, if the clerk were held to be a member of the district court, the district court, so constituted, would not be an independent and impartial tribunal in terms of article 6(1). The Solicitor General had confirmed that he made this concession.
"One may note that the clerk and legal assessor is not of course an actual member of the court, with responsibility for the ascertainment of facts."
Of course, it needs no citation of authority to show that the clerk is not a decision-maker in the cases that come before a district court. All the decisions, both of law and of fact, are taken by the justice. What article 6(1) requires, however, is a fair and public hearing by an independent and impartial "tribunal". That guarantee should not be construed narrowly. While the main focus must, of course, be on the position of the judges in a tribunal, it would be wrong to concentrate exclusively on them. A court or tribunal will in practice have a greater or lesser number of officials carrying out administrative and other duties. If the administrative decisions taken, the advice given or the documents prepared, by those officials can affect the independence or impartiality of the members of the tribunal in determining a case, the role of those officials is in my view relevant for purposes of article 6(1). It is therefore necessary to examine the role of the clerk of court as legal assessor, with this approach in mind.
"I am of opinion that no clerk had been appointed at the time the case had concluded. The person whose advice the magistrate asked for and received was not duly made clerk of court in any sense. It is new to me that a person can have and act upon an appointment as clerk of court when there is no writing constituting his appointment."
Lord Low added, also at p 6:
"I agree that Mr Brown was never appointed clerk of court, and as he acted as only a duly appointed clerk of court was entitled to act, in the way of giving advice, the conviction must be suspended."
"that the applicant has invoked both the principle of equality of arms and the requirement of independence and impartiality in respect of the role of the justices' clerk in her case. It would point out that equality of arms, an important element in ensuring the adversarial nature of proceedings, applies vis-à-vis the other parties in the proceedings. It does not apply as regards the tribunal or court. Conversely, it is not required of the prosecutor or other parties in proceedings to give guarantees of independence and impartiality, which attach to the members of the court which determines the issues in the case. It has therefore examined whether the justices' clerk acts as prosecutor or party, or as part of the court itself.
The Court recalls that the justices' clerk acts solely to assist the magistrates, who are lay judges. This may involve giving advice on law or procedure, taking notes of evidence and on occasion conducting examination of witnesses on the justices' behalf …. There is no question of the justices' clerk enjoying any role in the proceedings independent of the justices, or in having any duty with regard to influencing a decision in any particular direction. In that respect, the clerk's position can be distinguished from officers such as the procureur général, avocat général or commissaire du gouvernement, who make submissions to the courts concerning their personal views on the outcome of particular cases [see Borgers v Belgium Series A no 214, Lobo Machado v Portugal Reports 1996-I § 31 and Kress v France 7 June 2001]. On that basis, no problem arises in the normal course of events if a justices' clerk retires with the justices and it is not known what assistance, if any, he or she in fact furnishes to them. Assuming the clerk fulfils the role provided by law, his or her presence during the deliberations of the justices must be regarded as part of the ordinary functioning of the court."
The European Court went on to reject the applicant's argument that, on the facts of the particular case, the justices' clerk had failed to observe "the requirements of independence and impartiality required of him, as an integral part of the magistrates' court". The court took the view that the clerk had not overstepped what would be permissible for him "as a court officer acting on behalf of the justices".
"8. At any time, justices are entitled to receive advice to assist them in discharging their responsibilities. If they are in any doubt as to the evidence which has been given, they should seek the aid of their legal adviser, referring to his/her notes as appropriate. This should ordinarily be done in open court. Where the justices request their adviser to join them in the retiring room, this request should be made in the presence of the parties in court. Any legal advice given to the justices other than in open court should be clearly stated to be provisional and the adviser should subsequently repeat the substance of the advice in open court and give the parties an opportunity to make any representations they wish on that provisional advice. The legal adviser should then state in open court whether the provisional advice is confirmed or if it is varied the nature of the variation."
By requiring that any advice given in private should be repeated in open court and that the parties should have an opportunity to make representations on it, the practice direction goes further than article 6(1) requires.
"This area of concern relates to ensuring that the following matters are raised in open court:- (1) The content of any advice on the law given privately by the clerk to the justice which the clerk, or indeed the justice, perceives as possibly controversial; (2) Observation by the clerk that some authority has been cited, or submission made, which is inaccurate as to the current position in law; and (3) More generally, any matter which the clerk, or indeed the justice, perceives could be the object of relevant submission by one or other or both of the defence and the prosecution. We make these observations because we find nothing objectionable in the practice of private communications between clerk, as legal assessor, and justice provided that care is taken not only to confine such communication to the provision of legal advice but also to recognise and raise in open court any matter upon which the defence, or indeed the prosecution, might reasonably wish to make material comment."
Here again, though not going so far as Lord Woolf CJ, the High Court have gone further than article 6(1) requires. In both instances the intention is to afford greater protection to the accused. As Lord Hope of Craighead observes, in both instances too the approach is broadly in line with the one that the Board has commended in relation to the legal assessor's advice to the Professional Conduct Committee of the General Medical Council: Nwabueze v General Medical Council [2000] 1 WLR 1760, 1775.