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URL: http://www.bailii.org/uk/cases/UKPC/2001/d4.html
Cite as: [2001] UKPC D4, 2001 SLT 988, 2001 SCCR 741, [2001] UKHRR 999, [2001] HRLR 59, [2002] 1 WLR 1615, [2002] WLR 1615, 2002 SC (PC) 30, [2001] UKPC D 4, 2001 GWD 26-1015, [2002] 3 All ER 1041

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    Millar v. Procurator Fiscal (Scotland) [2001] UKPC D4 (24 July 2001)
    DRA. No. 5 of 2000
    (1) David Cameron Millar Appellant
    v.
    Procurator Fiscal, Elgin Respondent
    and
    DRA. Nos. 6, 7, 8 and 9 of 2000
    (2) Kerry Payne
    (3) Paul Stewart and
    (4) Joseph Tracey Appellants
    v.
    Procurator Fiscal, Dundee Respondent
    FROM
    THE HIGH COURT OF JUSTICIARY
    APPEAL COURT, SCOTLAND
    JUDGMENT OF THE LORDS OF THE JUDICIAL
    COMMITTEE OF THE PRIVY COUNCIL,
    Delivered the 24th July 2001
    ------------------
    Present at the hearing:-
    Lord Bingham of Cornhill
    Lord Nicholls of Birkenhead
    Lord Hope of Craighead
    Lord Clyde
    Lord Scott of Foscote
    ------------------
    Lord Bingham of Cornhill
  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, Ruxton v Starrs 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 on Human Rights.
  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 on 3 August 2000: Millar v Dickson 2000 JC 648.
  5. The issues raised by each of the accused before the High Court were devolution issues within paragraph 1(d) 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". 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.
  6. The High Court's decision in Starrs
  7. Before the High Court and again before the Board the Solicitor General accepted the correctness of the decision in Starrs 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 at 651B, paragraph 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.
  8. 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 in this way (2000 JC 208 at 213C):
  9. "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 art 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."
  10. 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: page 215A) concerning the recent practice of the Lord Advocate in making appointments of temporary sheriffs: see pages 213D-219A, 235B-241A. 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 pages 214C, 216E, 218E, 226G. The Lord Justice-Clerk quoted the material terms of article 6(1) of the convention:
  11. "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ..."
    He made extensive reference to Strasbourg and other authority on the meaning of "an independent and impartial tribunal": see pages 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." (page 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." (page 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 sec 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 art 6(1) of the Convention." (page 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 art 6(1) to trial by 'an independent and impartial tribunal'." (page 231).
  12. Lord Prosser was in complete agreement. His conclusions were expressed as follows:
  13. (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." (page 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." (page 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." (page 234)
  14. Lord Reed delivered a comprehensive judgment. It is necessary to cite the following extracts only:
  15. (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 strongly away from 'independence' within the meaning of art 6." (page 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 art 13 of the Claim of Right 1689 (cap 28, APS IX 38) that 'the changing nature the [sic] of the judges' gifts ad vitam aut culpam into commissions durante beneplacito' is 'contrary to law'." (page 245)
    (3) "There is, however, no objective guarantee of security of tenure, such as can be found in sec 12 of the 1971 Act; and I regard the absence of such a guarantee as fatal to the compatibility of the present system with art 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'." (page 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." (page 252)
    (5) "Given my conclusion that trial before a temporary sheriff violates the right of the complainers under art 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 sec 57(2) of the Scotland Act, it follows that sec 57(2), if it is applicable, renders those acts incompetent." (page 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." (page 257)
    The High Court's decision in the instant cases
  16. In his leading judgment in these cases Lord Prosser defined the main issues then before the High Court: 2000 JC 648 at 651, paragraph 4:
  17. "In relation to these cases, the Solicitor-General on behalf of the respondents conceded that there was a relevant 'act' for the purposes of para 1(d) of sched 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 art 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 art 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.

  18. It is clear that in the High Court the accused, relying on section 57(2) of the Scotland Act, 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 page 664, paragraph 39):
  19. "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 sec 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 rights'. In terms of sec 126(1), that expression has the same meaning as in the Human Rights Act 1998. In terms of sec 1(1) of that Act 'the Convention rights' 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 nonetheless still obliged, in terms of sec 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 complainers' 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."
  20. 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.
  21. Section 57(2)
  22. 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 at 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 in- compatible 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.
  23. 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 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 PC 43 at pages 60A-D, 61G-I, 62I-64D, 67H, 73D-E, 74B-F, 79E, 81I-82D, 84B-E and 87A-C, 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.
  24. 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.
  25. In Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 the Court of Appeal of England and Wales (the Lord Chief Justice, the Master of the Rolls and the Vice-Chancellor) said at pages 471-472, paragraphs 2-3:
  26. "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 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."
  27. 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.
  28. 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 (in paragraph 26, at page 244):
  29. "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 (in paragraph 30, at page 246):

    "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 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 page 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.

  30. It was held in Håkansson and Sturesson v Sweden (1990) 13 EHRR 1 (page 16, paragraph 66) that "a waiver must be made in an unequivocal manner and must not run counter to any important public interest."
  31. 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: paragraph 51, page 420. Such waiver was not established. It therefore followed that there had been a violation of article 6(1) because the tribunal was not impartial.
  32. 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 (paragraphs 37, 39 on pages 712-713):
  33. "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.

  34. 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 violation of article 6(1) the Court referred to the very limited participation of the judge at the investigatory stage and held (in paragraph 34 at page 101):
  35. "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."
  36. 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 (paragraphs 106, 108, pages 239-240). The Court shared this view (paragraphs 73, 76 at pages 244-245):
  37. "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; paragraph 79, page 246. No significance was attached to the fact that Findlay had pleaded guilty. The lack of independence and objective impartiality was fatal.

    >
  38. 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).
  39. In Brown v Stott 2001 PC 43 at 63G Lord Steyn said:
  40. "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, 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.

  41. 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.
  42. 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 the European Court drew no distinction between his plea of guilty and his sentence.
  43. Section 57(3)
  44. Before the Board, although not before the High Court, the Solicitor General sought to rely on section 57(3) of the Scotland Act, which provides:
  45. "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, 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 way compatible with the Convention rights and that the prosecutors were acting to give effect to or enforce those provisions.

  46. 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.
  47. Waiver
  48. 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 (paragraph 54, page 465). In Pfeifer and Plankl v Austria (1992) 14 EHRR 692 there was held to be no waiver where a layman had not been in a position to appreciate completely the implication of a question he had been asked (paragraph 38, page 713). In any event, it cannot meaningfully be said that a party has voluntarily elected not to claim a right or raise an objection if he is unaware that it is open to him to make the claim or raise the objection. 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 was of this opinion: 2000 JC 648 at 654-655, paragraphs 12 and 13.
  49. 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: (paragraph 16, page 655).
  50. The High Court made its finding of tacit waiver in reliance on a series of very carefully formulated propositions:
  51. (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 (paragraph 17, page 656).
    (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 (paragraph 18, page 656).
    (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 (paragraph 20, page 656).
    (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 (paragraph 21, page 657).
    (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 (paragraph 22, page 657).
    (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 (paragraph 23, pages 657-658).
    (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 (paragraphs 24, 25, page 658).
    (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 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 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 (paragraph 25, pages 658-659).
    (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 (paragraph 26, page 659).
    (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 (paragraphs 10, 11 and 27, pages 653, 659).
    (11) The agents' 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 (paragraph 28, pages 659-660).
    (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 (paragraph 29, page 660).
  52. 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 at 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 differed (at page 40):
  53. "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 every body 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 at 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.

  54. 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.
  55. 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 (see, for example, Willock, "Temporary Sheriffs", 1993 SLT (News), pages 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 at 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).
  56. Section 11(4) of the Sheriff Courts (Scotland) Act 1971, which provided in effect that temporary sheriffs held office at pleasure (see Starrs, page 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, to amend it or to provide for the appointment of temporary sheriffs for fixed terms longer than a year, no 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 sheriffs' compliance with article 6, to share their doubts with the defence: see Locabail [2000] QB 451 at 478, paragraph 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.
  57. 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.
  58. 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.
  59. Lord Nicholls of Birkenhead
  60. 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.
  61. Lord Hope of Craighead
  62. 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 Stair Memorial Encyclopaedia, vol 5, 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.
  63. 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.
  64. 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 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.
  65. Legislation has been passed by the Scottish Parliament which provides for the creation of a new category of part-time sheriffs: section 11A-11D of the Sheriff Courts (Scotland) Act 1971, inserted by the Bail, Judicial Appointments, etc (Scotland) Act 2000, asp 9, 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.
  66. 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 appellants' Convention rights.
  67. The issues
  68. 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, 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) 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: Millar v Dickson, 2000 JC 648. 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.
  69. 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 QC for the appellant Paul Stewart said, the point on waiver bears directly on the issue whether the Lord Advocate was acting compatibly with the appellants' 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.
  70. As the argument developed however the Solicitor General sought to raise a new and more fundamental question in answer to the appellants' devolution issue. This was whether, as the facts have turned out, there was truly an incompatibility with the appellants' 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.
  71. 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.
  72. The "act"
  73. 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 and Brown' Criminal Procedure, 6th edition 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.
  74. 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 appellants' 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.
  75. Waiver
  76. 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 SC (PC) 43, 63G, 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.
  77. 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 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.
  78. In Håkansson and Sturesson v Sweden (1990) 13 EHRR 1, 16, paragraph 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 (1991) 19 EHRR 389 and Pfeifer and Plankl v Austria (1992) 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.
  79. In Oberschlick the Court observed at p 420, paragraph 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, paragraph 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 paragraph 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.
  80. In Bulut v Austria (1996) 24 EHRR 84 the Court held at p 101, paragraph 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:
  81. "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 (2000) 30 EHRR 289, 8 February 2000 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 not structural conflict 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.

  82. In none of the cases which are before us was there was 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 appellants' agents remained silent. As Lord Prosser 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: 2000 JC 648, 656D-E. 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 appellants' 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: p 658H-659A.
  83. 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 appellants' 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.
  84. 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 and Pfeifer provide examples, where there was an undoubted right to object and a clear remedy in the event of doing so. Lord Prosser made it clear at p 659A that he was not suggesting that the appellants' 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 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.
  85. 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 appellants' 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.
  86. The consequences
  87. The Solicitor General said that the facts and circumstances did not disclose any infringement of the appellants' 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.
  88. 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.
  89. 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 viewed objectively. The aim is to exclude any legitimate doubt as to the tribunal's independence and impartiality: McGonnell v United Kingdom at p 306, paragraph 48 quoting Findlay v United Kingdom (1997) 24 EHRR 221, 245, paragraph 73. As Lord Clarke said in Rimmer v HM Advocate, 23 May 2001 (unreported), 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.
  90. 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 parte 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.
  91. 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.
  92. 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, nevertheless held that there had in the event been no breach of article 6(1). In McGonnell v United Kingdom the court said at page 308 in paragraph 57 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.
  93. The decision in Starrs v Ruxton 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.
  94. 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 appellants' Convention rights to come within the scope of the devolution issue. But I do not think that there is anything in the argument.
  95. 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 Act 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.
  96. Conclusion
  97. 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.
  98. Lord Clyde
  99. 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.
  100. 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.
  101. 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 of the Scotland Act 1998. 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.
  102. 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 appellants' Convention rights.
  103. It was not submitted that the decision in Starrs 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.
  104. 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.
  105. 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 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 (p 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.
  106. 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.
  107. 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 (1980) 2 EHRR 439 at page 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 fairness may, as was recognised in Brown v Stott 2001 PC 43, 82 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 (eg Zumtobel v Austria [1993] 17 EHRR 116, 133, para 34, Håkansson and Sturesson v Sweden (1990) 13 EHRR 1 p 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.
  108. 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) 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.
  109. 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 (1984) 7 EHRR 236. In Findlay v United Kingdom (1997) 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 p 246 (para 79):
  110. "Nor could the defects … be corrected by any subsequent review proceedings. Since the applicant's hearing was concerned with serious 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 (1992) 14 EHRR 692 p 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 (1980) 2 EHRR 439 p 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 (1992) 14 EHRR 692 the court held that the decision in question was invalid "even supposing that the rights in question can be waived by a defendant" p 713 (para 39). In Bulut v Austria (1996) 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 impartiality lacked objective justification, adding 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, p 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.

  111. 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 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.
  112. 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 (p 213):
  113. "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.

  114. 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:
  115. "(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.

  116. 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 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. 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.
  117. I would accordingly allow these appeals.
  118. Lord Scott of Foscote
  119. 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.


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