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The Judicial Committee of the Privy Council Decisions
You are here: BAILII >> Databases >> The Judicial Committee of the Privy Council Decisions >> Millar v. Procurator Fiscal (Scotland)  UKPC D4 (24 July 2001)
Cite as:  UKPC D4, 2001 SLT 988, 2001 SCCR 741,  UKHRR 999,  HRLR 59,  1 WLR 1615,  WLR 1615, 2002 SC (PC) 30,  UKPC D 4, 2001 GWD 26-1015,  3 All ER 1041
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DRA. No. 5 of 2000
(1) David Cameron Millar Appellant
Procurator Fiscal, Elgin Respondent
DRA. Nos. 6, 7, 8 and 9 of 2000
(2) Kerry Payne
(3) Paul Stewart and
(4) Joseph Tracey Appellants
Procurator Fiscal, Dundee Respondent
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 Scott of Foscote
Lord Bingham of Cornhill
The High Court's decision in Starrs
"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."
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:"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 ..."
(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).
(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)
(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
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."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."
"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."
"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."
The Court continued (in paragraph 30, at page 246):"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."
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."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."
"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 .…
A violation of article 6(1) was accordingly found.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."
"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."
"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.
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. >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."
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."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."
"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
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.(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."
(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).
More recently, in Evans v Bartlam  AC 473 at 479 Lord Atkin laid down what I take to be the true principle:"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."
Thus ignorance of the law will not excuse unlawful conduct; but it cannot suffice to found a plea of waiver."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."
Lord Nicholls of Birkenhead
Lord Hope of Craighead
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."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."
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:"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)."
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."... 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."
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."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."
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."(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."
Lord Scott of Foscote