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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> HUGH LATTA STARRS and JAMES WILSON CHALMERS and BILL OF ADVOCATTION FOR PROCURATOR FISCAL, LINLITHGOW v. PROCURATOR FISCAL, LINLITHGOW and HUGH LATTA STARRS and JAMES WILSON CHALMERS [1999] ScotHC 242 (11th November, 1999)
URL: http://www.bailii.org/scot/cases/ScotHC/1999/242.html
Cite as: (1999) 8 BHRC 1, 2000 SLT 42, 2000 JC 208, [1999] ScotHC 242, [2000] HRLR 191, 8 BHRC 1, 1999 SCCR 1052, [2000] UKHRR 78

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HUGH LATTA STARRS and JAMES WILSON CHALMERS and BILL OF ADVOCATTION FOR PROCURATOR FISCAL, LINLITHGOW v. PROCURATOR FISCAL, LINLITHGOW and HUGH LATTA STARRS and JAMES WILSON CHALMERS [1999] ScotHC 242 (11th November, 1999)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Prosser

Lord Reed

 

 

 

 

Appeal Nos: 1798/99

1799/99

2006/99

OPINION OF THE LORD JUSTICE CLERK

in

BILLS OF ADVOCATION

for

HUGH LATTA STARRS and JAMES WILSON CHALMERS

Complainers;

against

PROCURATOR FISCAL, Linlithgow

Respondent;

and

BILL OF ADVOCATION

for

PROCURATOR FISCAL, Linlithgow

Complainer;

against

HUGH LATTA STARRS and JAMES WILSON CHALMERS

Respondents:

_______

temporary sheriffs

Complainers: Bovey, Q.C., N. McCluskey; Keegan Smith, Livingstone: Davidson, Q.C., S. Collins; Central Criminal Lawyers, Livingstone

Respondent: The Solicitor General, McCreadie; Crown Agent

Complainer: The Solicitor General, McCreadie; Crown Agent

Respondents: Bovey, Q.C., N. McCluskey; Keegan Smith, Livingstone: Davidson, Q.C.,

S. Collins; Central Criminal Lawyers, Livingstone

11 November 1999

1. On 20 May 1999 the Lord Advocate became a member of the Scottish Executive in terms of section 44 of the Scotland Act 1998. He thereby became subject to section 57(2) of the Act which provides, inter alia, that a member of the Scottish Executive has no power to do any act, insofar as it is incompatible with any of the "Convention rights". Section 126(1) provides that that expression is to have the same meaning as in the Human Rights Act 1998, namely the rights and freedoms set out in various Articles of the Convention for the Protection of Human Rights and Fundamental Freedoms, to which I will refer as "the Convention". As provided in section 129(2), section 57(2) is "to have effect until the time when that Act (the Human Rights Act) is fully in force has it will have effect after that time". In the present proceedings the main point at issue is whether the Lord Advocate has acted in a way which was incompatible with the rights of the accused under Article 6(1) of the Convention to fair trial by "an independent and impartial tribunal" within the meaning of that Article. Section 98 of, and the Sixth Schedule to, the Scotland Act make provision for the resolution of any devolution issue which arises in the course of any proceedings. Under para. 1(d) of the Schedule a "devolution issue" includes a question whether a purported exercise of a function by a member of the Scottish Executive is incompatible with any of the Convention rights.

2. At this point it is convenient for me to set out a brief account of the proceedings in the sheriff court. On 5 May 1999 the complainers Hugh Latta Starrs and James Wilson Chalmers, to whom I refer as "the accused", appeared for trial before Temporary Sheriff Crowe in Linlithgow Sheriff Court on a summary complaint. The trial was commenced but not concluded on that date. The trial diet was adjourned for the completion of the evidence until 8 July. On that date the case did not call before Temporary Sheriff Crowe owing to the fact that the procurator fiscal depute who was allocated to the trial had to deal with other court business. The case called before Temporary Sheriff Alexander who adjourned it to a notional trial diet on 16 July. He also allowed the accused, on cause shown, to raise a "devolution issue" which he continued to the notional diet. No minute under rule 40.5 of the Act of Adjournal (Devolution Issues Rules) 1999 was lodged at that stage. On 16 July the case came before Sheriff Ross, who was a permanent sheriff. Ex proprio motu he adjourned the trial diet until 21 July. By then the accused had lodged and intimated minutes under rule 40.5. The sheriff continued consideration of them to that date. On 21 July the case came before Sheriff Ross once more. Having heard parties on the question whether Temporary Sheriff Crowe should decline to deal with the matters raised in the minute, he held that it was for Temporary Sheriff Crowe to decide whether to decline to do so. On 30 July, having heard the parties, Temporary Sheriff Crowe repelled the submission made on behalf of the accused that he should decline to adjudicate on the devolution issue which they were seeking to raise. He refused to allow the accused to adjust their minutes, and decided the issue against them. He adjourned the diet of trial to a later date. Before the trial was resumed the accused presented their Bills of Advocation which seek to advocate the decision made on 30 July. In her Bill of Advocation the procurator fiscal challenges the decision of Temporary Sheriff Alexander on 8 July to allow a devolution issue to be raised, in respect that he was not the sheriff presiding at the trial of the accused.

In this court Mr Bovey, Q.C. and Mr McCluskey appeared for the first accused, and Mr Davidson, Q.C. and Mr Collins for the second. The Solicitor General appeared for the procurator fiscal and, along with Mr McCreadie, for the Lord Advocate, to whom the devolution issue had been duly intimated in terms of rule 40.5. The present case was heard along with a Bill of Advocation for the procurator fiscal in the case against Gary John Johnstone and David Michael Gunn, in which a similar question in regard to a temporary sheriff was raised.

3. Before coming to that issue, there are three matters with which I can deal shortly at this stage. First, in the light of the decision of the court in H.M. Advocate v David Shield Montgomery and Andrew Coulter dated 14 September 1999, it is no longer in dispute that it was within the discretion of the sheriff to allow the devolution minutes to be adjusted. The discussion in this court embraced the matters which the accused had sought to raise on 30 July. Secondly, there was a question before this court as to whether the accused were able to point to a relevant "act" on the part of the Lord Advocate for the purposes of section 57(2). The primary submission made by Mr Bovey was that the relevant "act" consisted of his instructing the procurator fiscal to continue with the trial. In making that submission Mr Bovey confined himself to what happened after 20 May 1999. Mr Bovey's submissions implied that whether there was an "act" on the part of the Lord Advocate depended on whether he had given an instruction to the procurator fiscal. This was over-exacting, since, while the procurator fiscal has a separate legal persona from the Lord Advocate, he or she represents him in both solemn and summary proceedings, as the Solicitor General accepted. Further, the Solicitor General informed the court that the Lord Advocate expected the procurator fiscal to be bound by the Convention as he is, and that he would not take any point that something which was done by the procurator fiscal was not his act as Lord Advocate and as a member of the Scottish Executive. Accordingly I have no difficulty in accepting that the act of the procurator fiscal in continuing the prosecution, for example on 8 July, constituted an act of the Lord Advocate. In these circumstances I do not require to deal with the secondary submission which was advanced by Mr Bovey that in any event the failure of the Lord Advocate to act, in respect that he had failed to instruct the procurator fiscal to discontinue the prosecution, provided a relevant basis for the raising of a devolution issue.

4. Thirdly, parties were at issue as to whether, as the accused maintained, it was competent for a sheriff other than the trial sheriff - in this case Temporary Sheriff Crowe - to deal with the devolution issue raised by them, and whether it was competent for a separate diet, separate that is from a trial diet, to be appointed to be used for that purpose. Mr Bovey submitted that in view of the admitted pecuniary interest of the temporary sheriff it was inappropriate he should hear the devolution issue. There was no procedural reason why another sheriff should not hear argument on and determine that issue. He pointed out that the devolution issue had nothing to do with the evidence in, or the subject matter of, the trial. It was commonplace for summary cases to call before different sheriffs at various stages of the proceedings. He referred to sections 144, 146 and 148 of the Criminal Procedure (Scotland) Act 1995. The practice of appointing notional trial diets had grown up in order to allow trials to be adjourned where the availability of the trial sheriff was in doubt. He also pointed out that after a finding of guilty in solemn proceedings it was competent for any sheriff to remit an accused for sentencing in the High Court (Borland v H.M. Advocate 1976 S.L.T. (Notes) 12). If the temporary sheriff in the present case had declined to deal with the devolution issue, he could have adjourned the diet to a further trial diet at which the issue could be determined by a permanent sheriff. Alternatively, In view of the terms of rules 40.5(2) and 40.8 of the Act of Adjournal, it would have been proper for a special diet to have been appointed for the purpose.

5. In my view Temporary Sheriff Crowe could not competently have adjourned the case so that another sheriff could deal with the devolution issue. The trial was not yet completed and he could not take that action in mediis rebus. As the Solicitor General put it, the trial sheriff "cannot step aside". The examples founded on by Mr Bovey were not in point. None of them dealt with the position of a trial sheriff who was able to proceed and dispose of a point which had been raised in the course of the trial. There was no warrant for a special diet to deal with the devolution issue. As the court observed in Montgomery and Coulter, a devolution issue has to be determined, whenever it arises, within the procedure for which the 1995 Act makes provision. It was accordingly for Temporary Sheriff Crowe, as the trial sheriff, to determine the devolution issue (notwithstanding the fact that he might be said, in a sense, to have an interest in the outcome: the issue was one which could only arise in proceedings before a temporary sheriff, and any such sheriff would be in a similar position to Temporary Sheriff Crowe). If Temporary Sheriff Crowe had resolved the devolution issue in favour of the accused, the correct course would have been for him to discharge the trial diet, so that a fresh diet of trial could proceed before a permanent sheriff cf. Macleod v Williamson 1993 J.C. 25. It also follows from what I have said that on 8 July Temporary Sheriff Alexander was not entitled to allow the devolution issue to be raised. That also was a matter for Temporary Sheriff Crowe. In these circumstances the Bill of Advocation for the procurator fiscal is, in my view, well founded.

6. I come then to the main issue which was debated at some length, namely whether a temporary sheriff such as Temporary Sheriff Crowe, was an "independent and impartial tribunal" in the sense of Article 6(1) of the Convention. I should, of course, make it clear that this point does not involve any reflection whatsoever on his conduct. The point is of general importance, not only for its potential effect in individual cases but also for any future consideration of the terms of the relevant legislation and any appointments made thereunder.

7. The first appearance of the temporary sheriff on the legislative scene was with the enactment of section 11 of the Sheriff Courts (Scotland) Act 1971. Prior to that Act, the supplementing of the normal shrieval bench could be achieved in one or other of two ways. The first was by the appointment of an interim sheriff-substitute. Such an appointment could be made, on a full-time basis, where a sheriff was granted leave of absence or where a vacancy required to be covered. The second method was the use of a "paid honorary sheriff-substitute". In their report on the sheriff court, the Committee chaired by Lord Grant (Cmnd. 3248, 1967) stated that this method was used in order to deal with short-term emergencies (para. 404). The Committee did not recommend any change from the practice of appointing interim and "paid honorary" sheriffs-substitute.

8. The court was also referred to the discussion of the Sheriff Courts (Scotland) Bill on 6 July 1971 before the House of Lords sitting in Committee. During the course of that discussion Lord Wheatley enquired whether it was intended that, in addition to appointing sheriffs to occupy the various sheriff courts throughout Scotland, there should also be appointed a pool of sheriffs who would act in a "floating" capacity and act as temporary sheriffs where that was required. He evidently had in mind that they would be appointed with the full status of sheriff, would require to have been qualified for ten years in the same way as a permanent sheriff, and would be paid the appropriate salary for that grade of sheriff. In reply Baroness Tweedsmuir of Belhelvie confirmed that it was intended to introduce such a pool of floating sheriffs. She stated that anyone who had the post of temporary sheriff would receive the same salary as a full sheriff unless he was there, as she put it, "purely on a casual basis", in which case he would be given a salary for a day. She added: "It has been thought that by the use of these temporary appointments it is possible to provide experience for those who we hope will become sheriffs one day" (cols. 883-885).

9. Section 11 of the 1971 Act, as amended and in force during the period with which this case is concerned, makes provision by subsections (1), (1A) and (1B) for the appointment of a temporary sheriff principal where there is a vacancy or the sheriff principal is unable to perform, or rules that he is precluded from performing, all or some part of his duties. Section 11 provides thereafter:

"(2) Where as regards any sheriffdom -

(a) a sheriff is by reason of illness or otherwise unable to perform his duties as sheriff, or

(b) a vacancy occurs in the office of sheriff, or

(c) for any other reason, it appears to the Secretary of State expedient so to do in order to avoid delay in the administration of justice in that sheriffdom,

the Secretary of State may appoint a person (to be known as a temporary sheriff) to act as a sheriff for the sheriffdom.

(3) A person shall not be appointed to be a temporary sheriff principal or a temporary sheriff unless he is legally qualified and has been so qualified -

(a) in the case of an appointment as a temporary sheriff principal, for at least ten years;

(b) in the case of an appointment as a temporary sheriff, for at least five years.

For the purposes of this subsection, a person shall be legally qualified if he is an advocate or a solicitor.

(4) The appointment of a temporary sheriff principal or of a temporary sheriff shall subsist until recalled by the Secretary of State.

(4A) No appointment under this section of a person to be a temporary

sheriff principal or temporary sheriff shall extend beyond the day on which the person reaches the age of 70.

(4B) Subsection (4A) above is subject to section 26(4) to (6) of the Judicial

Pensions and Retirement Act 1993 (power to authorise continuance in office to the age of 75).

(5) If the Secretary of State, on appointing any person to be a temporary sheriff principal or a temporary sheriff, so directs, the provisions of section 6(1) of this Act shall apply in relation to that person as they apply in relation to a person holding the office of sheriff.

(6) A person appointed to be a temporary sheriff principal of, or a temporary sheriff for, any sheriffdom shall for the purposes of his appointment, without the necessity of his receiving a commission in that behalf, have and be entitled to exercise the jurisdiction and powers attaching to the office of sheriff principal or, as the case may be, sheriff in that sheriffdom.

...

(8) The Secretary of State may pay to any person appointed to be a temporary sheriff principal or a temporary sheriff such remuneration and allowances as the Treasury, on the recommendation of the Secretary of State, may determine."

10. It may be noted, by way of comparison, that a person may not be appointed a permanent sheriff unless he has been legally qualified as an advocate or a solicitor for at least ten years (section 5(1)); the retiring age for a sheriff is 70 (section 5A(1), subject to (2)); the removal of a sheriff from office is governed by the terms of section 12; under section 6(1) a sheriff is prohibited in engaging, either directly or indirectly, in any private practice or business, or being engaged in partnership with or employed by, or acting as the agent for, any person so engaged; and the sheriff receives, in terms of section 14 of the 1907 Act, "such salary as to the Treasury may seem meet", as a charge on the Consolidated Fund. I should add that since the coming into force of the 1971 Act a number of "floating" sheriffs, presently eleven in number, have been appointed, with the full status and salary of a permanent sheriff and are subject to direction as to the sheriffdom in which they sit from time to time.

11. For the assistance of the court the Solicitor General provided a useful description of the manner in which temporary sheriffs are appointed and used. That description related almost entirely to the period since May 1997 when the present Lord Advocate assumed office. Its content is not a matter of general public knowledge. The Solicitor General explained that the Scottish Executive had announced its intention to consider proposals for changing the system of appointment. No final decision had been made as to how that function should be exercised. The Scottish Executive intended to consult on that subject as a number of interests were involved. It would then be for the Scottish Parliament to determine what method of appointment should be adopted.

12. The description given by the Solicitor General of the existing method of appointment was as follows. Although the power of appointment was vested in the Secretary of State, in practice a crucial role was played by the Lord Advocate. The decision that there was a requirement for temporary sheriffs was taken by the Lord Advocate, acting on advice from Scottish Courts Administration (now the Scottish Executive Justice Department). If a requirement for temporary sheriffs was identified, this was advertised in the Scots Law Times. Intimation was also given in writing to those who had previously expressed an interest. A file on each candidate was kept by the Scottish Courts Administration. While there might be a requirement for a particular number of temporary sheriffs, this was treated as a flexible figure. Application forms, which were introduced by the present Lord Advocate, were issued to those who had expressed an interest. They requested information about the applicant's professional qualifications, experience and other details. The applicant was also asked whether he or she had ever been convicted or engaged as a party in any proceedings. The latter question was intended, for example, to find out whether the applicant had been sequestrated or disqualified as a director. The applicant had to supply the names of two referees, one of whom was a member of the judiciary with experience of his or her work in court. The referee required to state whether in his or her opinion the applicant was a fit person to be appointed to be a temporary sheriff. The references were confidential. Some applicants were eliminated at this stage.

13. A list of applicants was then drawn up by the Lord Advocate with a view to their being interviewed. In doing so he took account of a number of factors, such as geographical spread, gender, expertise, breadth of experience, age and professional qualifications. The aim was to achieve an appropriate balance and, if possible, to divide the appointments equally between men and women and between advocates and solicitors. The present Lord Advocate had a policy of not normally appointing someone to be a temporary sheriff when he was over the age of 65. It was also relevant whether the applicant might be an appropriate person to receive a permanent appointment and should be given some experience on the bench prior to that. The Solicitor General pointed out that, in making recommendations for the appointment of permanent sheriffs, sheriffs principal set store by the fact that a person had previous experience in sitting as a temporary sheriff. In general, appointment to the shrieval bench was made nowadays from those who had gained that experience. Service as a temporary sheriff could be regarded as providing proof of suitability for a permanent appointment. A sheriff principal, normally sitting with a sheriff, interviewed the applicants. The same sheriff principal and sheriff did not interview all of them. A report of the interview was prepared and sent to Scottish Courts Administration, and in turn to the Lord Advocate with any additional comments which were thought appropriate. The applicants were assessed as appointable or non-appointable, and the appointable were graded according to whether they were regarded as exceptional, "good plus" or good. Some candidates were not required to be interviewed. These were persons who had a particular standing or expertise, such as Queen's Counsel, Advocate deputes, solicitors who had held high office and academic lawyers. This was the practice which had been followed in the case of recent holders of the office of Lord Advocate. The rationale of this was to persuade persons who might otherwise not apply, and to have the benefit of their knowledge and experience, so enhancing the standard of temporary sheriffs. In the case of Advocate deputes who had finished their period in Crown Office, it might assist them in re-establishing their practice, as well as taking advantage of the experience which they had gained. In addition a number of retired sheriffs had been put forward in this way.

14. With the benefit of the reports from the sheriffs principal and comments by officials, the Lord Advocate drew up a list of provisional candidates for appointment. He consulted with the Solicitor General and, more importantly, with the Lord President, on whose advice he placed considerable reliance. The Lord Advocate would then forward the finalised list to Scottish Courts Administration for the appointments to be made.

15. The Solicitor General observed that as the number of temporary sheriffs had increased over the years, the method by which their appointment was arrived at had undergone some change. It had become more formal to some extent. Application forms and interviews had been introduced.

16. Since the present Lord Advocate had taken office there had been two rounds of applications and appointments. In 1997 there had been 180 applications. 49 candidates had been interviewed. 24 appointments were made, and 8 further persons were appointed without being interviewed. In 1998 there were 77 applications. 26 candidates were interviewed. 23 appointments were made, and in addition 3 persons were appointed without being interviewed. In each case appointments were made in December for one year only, being the following calendar year. Accordingly the appointments made as the result of the round in 1998, including those of Temporary Sheriffs Crowe and Alexander, will expire on 31 December 1999. A number of isolated appointments had also been made outwith these rounds. The court was provided with a copy of the terms in which the appointment or "commission" of a temporary sheriff is expressed. It stated:

"In exercise of the powers conferred by section 11 of the Sheriff Courts (Scotland) Act 1971, the Secretary of State hereby appoints .... being a person qualified to fill the office of temporary sheriff, to act as a temporary sheriff for the undernoted sheriffdoms and at such courts within the said sheriffdoms from time to time as the Secretary of State may direct. The appointment shall subsist until the Thirty First Day of December .... unless previously recalled by the Secretary of State."

Undernoted were the names of all the sheriffdoms in Scotland. The document was signed by the Deputy Director, Scottish Courts Administration, on behalf of the Secretary of State for Scotland.

17. The Solicitor General provided the court with some information which illustrated the growth in the use of temporary sheriffs. In 1985 there were 88 permanent sheriffs and 61 temporary sheriffs. At the present time the corresponding numbers were respectively 110 and 129 respectively. In the light of the above, of the 129 temporary sheriffs, about 26 appointments had been appointed for the first time in 1998, and the remainder were persons whose commissions had been renewed. In 1989/90 the proportion of work, in terms of court days, carried out by temporary sheriffs was a little over 18%. In 1998/9 it was just under 25%.

18. Before embarking on his duties the temporary sheriff took two oaths, namely the oath of allegiance and the judicial oath, before the Lord President. He also required to undertake five days of judicial training, including training in respect of judicial standards. In addition he had two days training during the course of his first year of appointment. Each month the temporary sheriff required to provide Scottish Courts Administration with a list of the days on which he would be available. When there was a requirement for a temporary sheriff in a particular sheriff court, the sheriff clerk at that court would phone a booking clerk in Scottish Courts Administration. This could arise at short notice. The booking clerk had a list of the temporary sheriffs who were available. There was no restriction on the work which a temporary sheriff could undertake, but the majority of cases on which they sat were summary criminal cases. However, they could and did undertake jury trials and fatal accident inquiries. The booking of a temporary sheriff for a particular day was not on the basis that he was particularly well qualified for the case or cases which were to be heard by him that day. The booking clerk was instructed to make work available as fairly as possible depending, of course, on who was available to sit. A temporary sheriff who was a solicitor was not allowed to sit in the sheriff court of the area in which he practised, and the booking clerk required to observe that rule. There was no similar rule in the case of advocates. The Solicitor General said that there was a variation in the amount of work which was done by the individual temporary sheriff, ranging from a minimum of twenty days per annum to those few who were sitting almost full-time. The organisation of the sheriff courts within the sheriffdom was a matter for the sheriff principal, who was given primacy in regard to both permanent and temporary sheriffs. Reference was made to sections 15-17 of the 1971 Act. The Solicitor General emphasised that neither the Lord Advocate nor the procurator fiscal had any control over whether a given case was taken by a permanent sheriff or a temporary sheriff. Neither had any say as to whether a temporary sheriff was allocated to a particular sheriffdom or sheriff court.

19. The Solicitor General went on to explain that the practice was for the Lord Advocate to consider the re-appointment of each temporary sheriff. In doing so, he offered to consult with the sheriffs principal, the sheriff clerks, the President of the Law Society and the Dean of the Faculty of Advocates. This offer was not always taken up. Thereafter he consulted the Lord President. While a temporary sheriff would normally be expected to be re-appointed, there were a number of grounds on which he would not be re-appointed. Each temporary sheriff was expected to serve for a minimum of twenty days per annum. This requirement might be waived if there was good reason, such as illness. The commission would not be renewed if the temporary sheriff did not want this to happen, or if he reached the age of 65, although it was open to him to make representations for the renewal of his commission, which could be successful. The age limit was introduced by the present Lord Advocate in 1998 when the commissions of the temporary sheriff who had reached that age were not renewed. Since May 1997 no commission had been recalled during its currency. The Solicitor General emphasised that the renewal of a commission was "virtually automatic" provided that the temporary sheriff served at least 20 days during the year and remained under the age of 65 and there were no adverse circumstances relating to the fitness for office. If there was a serious issue as to the behaviour or private life of the temporary sheriff, he was informed that the commission would not be renewed and was given an explanation. The Solicitor General gave a number of examples of cases in which this course of action had been taken by the Lord Advocate. In one case the temporary sheriff made a statement to a police officer which gave rise to an allegation of criminal conduct on his part. Crown counsel decided that he should not be prosecuted. Some months before the expiry of his commission he was sent a letter informing him that in view of his admitted conduct it was not appropriate that he should be re-appointed. He contested this and a meeting was held at which representations were made on his behalf by counsel, but having taken advice the Lord Advocate confirmed his decision, and Scottish Courts Administration were informed that the temporary sheriff was not to be used during the remainder of the year. On another occasion two temporary sheriffs were removed as they were the subject of proceedings in regard to disqualification from holding office as company directors. In the case of one of them there was a failure to inform the Lord Advocate and officials of certain matters where there was a clear obligation to do so. In the case of the other, certain personal difficulties had reflected on the temporary sheriff's fitness to hold office. In a further case the commission was suspended due to the health and private life the temporary sheriff, but no decision was taken as to his removal. There was also a case during the time of a previous Lord Advocate in which a commission was not renewed where the temporary sheriff had been unable to deal with civil work. The Solicitor General accepted that while the Lord Advocate was concerned with the question whether a temporary sheriff was fit to carry out the duties of his office, he did not apply a particular test in arriving at his decision. He was not able to say that in every case a temporary sheriff who was not re-appointed received an explanation. His understanding was that over the years the practice in dealing with such cases had evolved. What had been done some years ago would not be followed today.

20. The Solicitor General was unable to explain why a period of one year had been chosen. He accepted that, in practice, the system was not one of "temporary" appointments (other than in the sense that the appointments were formally for a period of one year, and lacked security of tenure), but was one of part-time appointments which were intended to be long-term.

21. The Solicitor General accepted that it was also possible for a temporary sheriff to be "sidelined" without any formal recall or non-renewal of his appointment. In other words, a temporary sheriff could simply not be "used", as a matter of administrative practice. There was a suggestion made on behalf of the appellants, on the basis of anecdotal material, that this had happened to individuals as a result of the attitude of officials towards them (see e.g. H.L. Deb., 6 March 1997, col. 2063; cf. col. 2083).

22. The Solicitor General explained that temporary sheriffs were paid per diem and did not qualify for a pension, unlike permanent sheriffs, who received a salary and a pension. He accepted that some temporary sheriffs, but by no means all, were dependent on their earnings form that source. He also accepted that some temporary sheriffs were seeking preferment to permanent appointments as sheriffs. Most persons now appointed as permanent sheriffs had previously served as temporary sheriffs. Temporary sheriffs formed in effect a pool from which permanent appointments might be made, although not all permanent appointments came from that pool. If a person were to apply for a permanent appointment without having previously served as a temporary sheriff, then he might be encouraged to seek a temporary appointment first, effectively as a form of probationary service.

23. Counsel for the appellants produced a copy of the notes issued by Scottish Courts Administration to candidates for appointment as temporary sheriffs. Those notes include the following:

"7. Permanent Appointments: whilst, in recent years, many of those successful in obtaining appointments to the permanent shrieval Bench have earlier served as Temporary Sheriffs, it should be noted that, at any point in time, the number of Temporary Sheriffs interested in a permanent appointment very substantially exceeds the number of vacancies and there is no guarantee whatsoever that service as a Temporary Sheriff will eventually lead to a permanent appointment."

Article 6(1) of the Convention states:

"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 ...."

The discussion in this court was directed to both independence and impartiality. The court was referred to a number of decisions of the European Court of Human Rights and of the European Commission. In Findlay v United Kingdom (1997) 24 E.H.R.R. 221 at para. 73 the court stated 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."

Similar statements may be found in the earlier cases of Bryan v United Kingdom (1995) 21 E.H.R.R. 342, at para. 37 and Pullar v United Kingdom (1996) S.C.C.R. 755 at para. 30.

24. As can be seen from this quotation and the decided cases the question whether a tribunal is independent and impartial embraces the question whether it presents the appearance of independence from an objective standpoint. For example in De Cubber v Belgium (1984) 7 E.H.R.R. 326 the fact that one of the judges of the court which had given judgment on the charges against the applicant had previously acted as investigating judge gave rise to the misgivings as to the court's impartiality. In that case the court observed, at para. 30, that:

"a restrictive interpretation of Article 6(1) - notably in regard to the 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 a number of cases the court has found that lack of independence and lack of impartiality are inter-linked. Thus in Bryan v United Kingdom the court recognised that the fact that the appointment of an inspector, who had the power to determine a planning appeal in which the policies of the appointing minister might be in issue, could be revoked by the minister at any time gave rise to a question as to his independence and impartiality. In the circumstances, it did not fall foul of Article 6(1) by reason of the scope of review which was available to the High Court in England. In Findlay v United Kingdom the court was satisfied that there was objective justification for doubts as to the independence and impartiality of the members of a court martial where they were subordinate to the convening officer who acted as the prosecutor. In that case the process of review did not provide an adequate guarantee. In Çiraklar 28 October 1998 the court observed that it was difficult to disassociate impartiality from independence where the members of a national security court included a military judge. While there were certain constitutional safeguards, the members of the court were still servicemen and remained subject to military discipline and assessment. Their term of office was only four years. In these circumstances the court held (at para. 40) that there was a legitimate fear of their being influenced by considerations which had nothing to do with the nature of the case. There was objective justification for fear of lack of independence and impartiality.

25. In the same connection this court was referred to a number of Canadian decisions on the interpretation and application of section 11(d) of the Canadian Charter of Rights and Freedoms which states:

"Any person charged with an offence has the right ...

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal."

These were the decisions of the Supreme Court of Canada in Valente v The Queen (1985) 24 D.L.R. 161, which was concerned with the question whether, in the light of the control exercised by the executive, a judge of the Ontario Provincial Court (Criminal Division) was an independent tribunal, and Att-Gen. of Quebec v Lippé [1991] 2 S.C.R. 114, which was concerned with the question whether, in the case of part-time municipal court judges who were allowed to practice law, there was a lack of "institutional impartiality". The court was also referred to the decision of Vertes J. in the Northwest Territories Supreme Court in Ref. re section 6(2) of the Territorial Court Act (N.W.T.) (1997) 152 D.L.R. (4th) 132, which was concerned with a number of questions in regard to the appointment of deputy territorial judges for fixed terms.

26. It should not be assumed that everything that is considered to be essential or important in the Canadian context has the same significance in the application of Convention. However, these decisions contain a full analysis and discussion of the concepts of independence and impartiality which section 11(d) of the Canadian Charter shares with Article 6(1) of the Convention and, so far as I have been able to determine, there is in this respect no essential difference of approach.

27. In Valente v The Queen Le Dain J., who delivered the judgment of the court, stated at page 169-170:

"The word 'independent' in section 11(d) reflects or embodies the traditional constitutional value of judicial independence. As such, it connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly to the Executive Branch of Government, that rests on objective conditions or guarantees."

Later at page 172 he said:

"But a tribunal which lacks the objective status or relationship of independence cannot be held to be independent within the meaning of section 11(d), regardless of how it may appear to have acted in the particular adjudication."

As regards the word 'impartial' he observed at page 169 that it connoted "absence of bias, actual or perceived". At page 172-173 he stated:

"Both independence and impartiality are fundamental not only to the capacity to do justice in a particular case but also to individual and public confidence in the administration of justice. Without that confidence the system cannot command the respect and acceptance that are essential to its effective operation. It is, therefore, important that a tribunal should be perceived as independent, as well as impartial, and that the test for independence should include that perception. The perception must, however, as I have suggested, be a perception of whether the tribunal enjoys the essential objective conditions or guarantees of judicial independence, and not a perception of how it will in fact act, regardless of whether it enjoys such conditions or guarantees."

In Att.-Gen. v Lippé, Lamer C.J., whose judgment in this respect was concurred in by the other members of the court, said at page 139:

"The overall objective of guaranteeing judicial independence is to ensure a reasonable perception of impartiality; judicial independence is but a 'means' to this 'end'. If judges could be perceived as 'impartial' without judicial 'independence', the requirement of 'independence' would be unnecessary. Independence is the cornerstone, a necessary prerequisite, for judicial impartiality."

He went on to say at page 140:

"Notwithstanding judicial independence, there may also exist a reasonable apprehension of bias on an institutional or structural level. Although the concept of institutional impartiality has never before been recognised by this court, the constitutional guarantee of an 'independent and impartial tribunal' has to be broad enough to encompass this. Just as the requirement of judicial independence has both an individual and institutional aspect ..., so too must the requirement of judicial impartiality."

In Ref. re Territorial Court Act (N.W.T.) Vertes J. expressed the same idea when he stated at page 146 in regard to concepts of independence and impartiality:

"Recent jurisprudence has recast these concepts as separate and distinct values. They are nevertheless still linked together as attributes of each other. Independence is the necessary precondition to impartiality. It is the sine qua non for attaining the objective of impartiality. Hence there is a concern with the status, both individual and institutional, of the decision-maker. The decision-maker could be independent and yet not be impartial (on a specific case basis) but a decision-maker that is not independent cannot by definition be impartial (on a institutional basis)."

In presenting his submissions, which were adopted by Mr Davidson with some additional argument, Mr Bovey founded on a number of aspects of the conditions on which advocates or solicitors served as temporary sheriffs. While he regarded each of them as free-standing, he invited the court, if it was so minded, to consider them together. The first of them was the fact that the term of office of a temporary sheriff was limited to one year. The period for which the appointment of a tribunal subsisted was plainly a relevant factor in considering its independence. In Campbell and Fell v United Kingdom (1984) 7 E.H.R.R. 165, which was concerned with a prison board of visitors, a term of three years or less as the Home Secretary might appoint was regarded as "admittedly short", though it was accepted by the court that there were understandable reasons for that. In Çiraklar v Turkey the four year term of office, which was renewable, was plainly one of the factors which led the court to conclude that there was a lack of objective independence and impartiality. Mr Bovey also drew attention to the Latimer House Guidelines for the Commonwealth which were adopted by the Commonwealth Parliamentary Association on 19 June 1998. In regard to the objective of preserving judicial independence, the Guidelines stated the following, inter alia:

"Judicial appointments should normally be permanent; whilst in some jurisdictions, contract appointments may be inevitable, such appointments should be subject to appropriate security of tenure."

Mr Bovey submitted that the very short period of office in the present case raised a presumption of lack of independence.

28. Mr Bovey went on to present a number of other factors, which, in view of their inter-relationship, can be appropriately considered together. In presenting these submissions he drew attention to the fact that in Valente v The Queen Le Dain J. at pages 176, 184 and 187 expressed the opinion the essential conditions of judicial independence for the purposes of section 11(d) of the Canadian Charter were security of tenure, financial security and institutional independence. Mr Bovey indicated that he founded primarily on the first and second of these indicia. Section 11(4) of the 1971 Act enabled the appointment of a temporary sheriff to be recalled by the executive, as could be perceived by the well-informed observer. There were no formal safeguards against that recall. As regards the re-appointment of a temporary sheriff there were no published guidelines or criteria. A temporary sheriff was removable at will. There was no formal restraint on the recalling of an appointment, or on the failure to renew an appointment, for example, because the office-holder had reached 65 years of age. There was nothing to prevent the withholding of work from a temporary sheriff during the currency of his commission. There were no published guidelines as to the procedures. No reasons required to be given and there was no appeal. Mr Bovey founded upon the case of Bryan v United Kingdom as being in point in regard to the removability of the tribunal. He also placed reliance on the decision of the Norwegian Supreme Court in Plahte v Norwegian State, 19 December 1997, in which the court set aside a decision by a temporary judge in a litigation against the state on the ground that, in terms of a statutory provision, he was "incompetent" in respect that there were "particular circumstances ... which are liable to undermine confidence in his impartiality", (according to a translation of the Norwegian text which was provided). Mr Bovey also relied on certain of the Basic Principles on the Independence of the Judiciary which were adopted by resolutions of the General Assembly of the United Nations in 1985 as follows:

"12. Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists.

...

18. Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties.

19. All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct."

Mr Bovey referred to a passage in the judgment in Valente v The Queen in which Le Dain J. stated that it might be reasonably perceived that the essentials of security of tenure were:

"that the judge be removable only for cause, and that cause be subject to independent review and determination by a process at which the judge affected is afforded a full opportunity to be heard. The essence of security of tenure for the purposes of section 11(d) is a tenure, whether until an age of retirement, for a fixed term, or for a specific adjudicated task, that is secure against interference by the Executive or other appointing authority in a discretionary or arbitrary manner."

Mr Bovey said that he accepted that there could be no such thing as the absolute protection of a judge from influences, but in the present case the important guarantee of objective impartiality was lacking, since there was the risk that a temporary sheriff who was interested in obtaining a permanent appointment, or at least his re-appointment as a temporary sheriff, might be influenced by the desire to avoid harming his prospects (cf. Ref. re Territorial Court Act (N.W.T.) at page 172). It was not enough for the Solicitor General to refer to the practice which had been followed in recent years. The question was whether the framework within which the temporary sheriff worked provided protection against improper interference or influence.

29. Mr Bovey also founded on the fact that temporary sheriffs were appointed, or ruled out from further appointment, at the instance of the Lord Advocate. The present holder of that office had acknowledged that he still retained his previous role in the appointment of judges. Section 48(5) of the Scotland Act provided for his independence, but only in respect of his responsibility for the prosecution of crime. He was now a member of the Scottish Executive which had collective responsibility for the actions of each of them (sections 44(1) and 52(4)). At the same time the Lord Advocate was master of the instance in all criminal prosecutions in Scotland (Boyle v H.M. Advocate 1976 J.C. 32 at page 37). Although the procurator fiscal had a separate legal persona he was appointed to and removed from office by the Lord Advocate, in accordance with section 1(2) of the Sheriff Court and Legal Officers (Scotland) Act 1927. The system of Crown appeals involved the possibility that reports made by procurators fiscal to the Crown Office would on occasion contain criticisms of the conduct or performance of a temporary sheriff. It was also to be noted that the Lord Advocate had imposed on temporary sheriffs his own rule as to the age of retirement.

30. In the result, Mr Bovey submitted, the temporary sheriff occupied a role which was subordinate to one of the parties. That was inconsistent with being independent (reference was made to Sramek v Austria (1984) 7 E.H.R.R. 351 and Piersack v Belgium). Their security of tenure was inferior to that of permanent sheriffs. This had the effect of creating two classes of sheriff. It was likely to give rise to a perception of inferiority in quality. Furthermore, temporary sheriffs did not have financial security and in this respect also they were inferior to permanent sheriffs. They were paid for their work as a matter of "grace and favour" rather than by way of a salary. They did not qualify for non-contributory pensions. The Sheriffs' Pensions (Scotland) Act 1961 did not apply to them. They did not receive either sick or holiday pay. A temporary sheriff was paid at half rate for writing days. The arrangement for his sitting was liable to be cancelled at short notice, in which case he was not paid the full daily rate. Such an inferiority produced a pressure on some of them to seek a permanent appointment.

31. Mr Davidson added to these submissions. He drew attention to the paper presented by Dato Param Cumaraswamy, the Special Rapporteur on the Independence of the Judiciary appointed by the U.N. Commission on Human Rights, at the Seminar of the Commonwealth Magistrates and Judges Association at Larnaca in October 1998. In that paper he reviewed the international and regional standards for the protection of judicial independence. (Journal of the Commonwealth Magistrates and Judges Association, Volume 12, No. 4). At page 11 he referred to the decision in Plahte v The Norwegian State, observing:

"This decision should send alarm bells to some jurisdictions where temporary judges are appointed as a matter of course without regard to the grave constitutional flaw in such appointment and the resulting illegality of the judgments delivered by such judges."

He went on to point out that a similar situation had arisen in Pakistan in 1995 and more recently in Peru.

32. The last aspect upon which Mr Bovey founded was the fact that temporary sheriffs were permitted to continue in the practice of the law. He submitted that there were insufficient safeguards against conflict of interest. He referred to Att-Gen. of Quebec v Lippé in which the court found the practice of law was prima facie incompatible with the function of a judge, although it was persuaded that certain safeguards were sufficient to provide institutional impartiality. These consisted in the fact that part-time judges took an oath of office, that they enjoyed judicial immunity and that they were required to conform to a code of ethics. It was of interest to note that in Ref. re section 6(2) of the Territorial Court Act (N.W.T.) Vertes J. distinguished that decision in respect that the part-time municipal court judge with which Att. Gen of Quebec v Lippé was concerned had been appointed "to hold office during good behaviour" until the retirement age of 70 and did not hold a term appointment; that he could not be removed except in accordance with the procedure which applied to all Quebec judges; and that he required to have been in practice at the Quebec bar for at least ten years and went through a selection procedure analogous to that for provincially appointed judges. At page 172 Vertes J. alluded to a risk that a temporary judge might be influenced by considerations relating to his practice of the law. Mr Bovey submitted that a temporary sheriff might decide a case in way which favoured the prospects of his clients in other cases, or take the view that it was difficult to explain to his clients why he had acted in a certain way. It was unrealistic to ignore these dangers. The examples which had been given in the two Canadian cases should not be regarded as exhaustive.

33. In reply the Solicitor General submitted that it was clear from the European and Canadian cases that a fixed-term appointment was not objectionable provided that there were sufficient guarantees of the independence and impartiality of the judge who held such an appointment. He founded on the decision of the European Commission in Dupuis, Application No. 12787/87, in which they held that an army officer who was appointed a member of a military court for only one month was independent. The Commission observed that the requirement of independence did not necessarily imply that the person should be appointed for life or that he should have security of tenure in law. The military member could not be removed during the period of his mandate. He was not answerable to anyone as a judge. A further guarantee lay in the fact that the part which each member played in the decision was secret. In the present case it was important to note that the temporary sheriff took a judicial oath. There was no question of the Lord Advocate attempting to influence temporary sheriffs in what they did. The fact that their commission was in respect of every sheriffdom in Scotland had the effect of distancing the Lord Advocate from particular cases, and he had no part in deciding in what sheriff court they served. The limitation of their commission to one year at a time simply reflected the temporary nature of their appointment. At the same time the Solicitor General said that he could not state what was the purpose of limiting the period to one year, save that he assumed that it had been done in order to avoid a surplus of temporary sheriffs. He did not know how the Lord Advocate of the day had regarded the one year limit during the earlier years since the 1971 Act came into force. Perhaps it was seen as enabling the quality of the temporary sheriff's work to be assessed.

34. Turning to the more general points which Mr Bovey had founded on, the Solicitor General submitted that, as in the case of the one year term, there were sufficient guarantees against outside pressures. He emphasised that the fact that each country had its own traditional constitutional traditions should be recognised. The temporary sheriff had security of tenure as a matter of fact. He referred to Campbell and Fell v United Kingdom, in which the court observed at para. 80 that the absence of a formal recognition of the irremovability in law of the member of the board of visitors did not in itself imply lack of independence provided that it was recognised in fact and that the other necessary guarantees were present. (I note, however, that in that case force was taken out of the lack of formal recognition because the term of office had to be kept short in order to attract persons to become board members). The Solicitor General also relied on Engel v The Netherlands (1976) 1 E.H.R.R. 647 (but again, it can be seen that the military members of the military court in that case had nothing to gain or to lose from the military authorities as a result of their work on the court). The practice followed by successive holders of the office of Lord Advocate showed that there had been a movement towards greater openness and formality. It did not matter whether a temporary sheriff sat on cases as a favour or whether he did or did not have anything to hope or fear. It was clear that it had always been intended that the ranks of permanent sheriffs would be filled from those who had held office as temporary sheriffs. (In their report the Grant Committee described a similar use of the interim sheriff substitute (para 376)). If this was seen as an advantage, how could it be provided for without a perception of dependence? The question was whether the impartial observer would think that there was a risk of a temporary sheriff tailoring his conduct and decisions in order to further his own ends. It was not possible to achieve the ideal. There was a reasonably held perception of impartiality. If a temporary sheriff wanted to seek promotion this did not necessarily point to a lack of impartiality. Rather it tended to result in his performing well in a judicial sense.

35. The safeguards comprised the fact the temporary sheriff took a judicial oath; that he undertook the training, to which I have referred earlier in this Opinion; and that his independence and impartiality were respected by the practice followed by the Lord Advocate. There were good reasons why the Lord Advocate had played a leading role in the selection process. He was seen as "less political" than other ministers, and he had close links with the legal profession. As the head of the prosecution service he enjoyed independence. He had long been regarded by convention as having a central role in the appointment of judges. In practice he had not re-appointed where there had been a failure on the part of a temporary sheriff to perform the minimum amount of work; where the temporary sheriff had reached 65 years of age; or where he had been guilty of some misconduct. The temporary sheriff was told of the reason why he was not to be re-appointed. The court should have regard to this practice, even if it was not set out formally. He referred to Campbell and Fell at para. 80; and a decision of the European Commission in Eccles McPhillips and McShane v Ireland, Application No. 12839/87. In that case, which was concerned with membership of a special criminal court established under statutory powers, the Commission observed that in assessing removability, "regard must be had not only to the legal provisions concerning the composition of the court but also how these provisions are interpreted and how they actually operate in practice". In that case the Commission noted that the court had a constitutional guarantee of independence; that it was subject to the supervisory jurisdiction of the High Court; that it was composed of persons with a judicial background; and that its judgment could be appealed to the ordinary courts of appeal. In addition the court regulated its own procedure and generally applied the same rules of evidence as the ordinary criminal courts. There was no evidence of executive interference with the court in the performance of its functions. In the present case, the Solicitor General submitted, it would be unthinkable for the Lord Advocate to seek to influence any judge. The convention as to the independence of temporary sheriffs was reinforced by the integrity of those who were involved. The procurator fiscal, like the Lord Advocate, had no control over where the temporary sheriff sat. Although he was subject to instructions and guidelines from Crown Office, he had a wide range of discretion by reason of his office. He could not be removed from office save on a report under section 1(3) of the 1927 Act. Permanent sheriffs and temporary sheriffs were expected to act in the same way, and they had the same judicial qualities and standing. They were bound by the same rules of evidence and procedure, and were subject to the same oversight by the sheriff principal who had primacy in his sheriffdom (see sections 16-18 of the 1971 Act). They were regarded as the equals of permanent sheriffs. Their appointment had not previously been called into question since the 1971 Act came into force. The use of temporary sheriffs was inevitable. While "floating sheriffs" could assist in the work of sheriff courts, they could not be used with the same flexibility as temporary sheriffs. As regards the matter of financial security, the Solicitor General submitted that while this was a matter to which the Canadian courts had attached importance, there was no trace of it being relied upon in any of the European cases. The European decisions represented the "first port of call" in the application of Article 6(1). He accepted at the same time that the European Court of Human Rights took account of the values which had been recognised in international agreements. In Scotland considerations of mone

36. As regards the conflict of interest to which Mr Bovey referred, the Solicitor General submitted that in Scotland there was no substantial difference from the safeguards which were adequate in Att-Gen. of Quebec v Lippé to preserve the objective appearance of impartiality of the municipal judges.

37. In this case the question whether a temporary sheriff, such as Temporary Sheriff Crowe, was an "independent and impartial tribunal" for the purposes of Article 6(1) is not confined to any particular case. It relates to the whole period within which he held his current appointment. There is no suggestion that if his appointment had been made subsequent to 20 May 1999, but on the same basis as before, the resulting decision would be different.

38. The factors relied on by Mr Bovey and Mr Davidson were derived from (i) the terms of section 11 of the 1971 Act; (ii) the terms of the temporary sheriff's appointment; and (iii) the restrictions applied by the Lord Advocate in determining those who qualify for re-appointment. Mr Bovey submitted that each of these factors could be considered either on its own or when taken along with the others. While a judgment could be formed by reference to all the factors taken together, it is important that it should be clear which matters are critical. If any action has to be taken as a result of this case it should be clear what requires to be given attention.

39. I begin then with section 11. Sub-section (4) confers a power of recall which on the face of it is without any qualification as to the circumstance in which it may be exercised, the test which is to be applied or the means by which the justification for its exercise may be investigated. It is doubtful how far its exercise is susceptible of judicial review. The terms of sub-section (4) stand in stark contrast to those of section 12(2) which provide, in the case of a permanent sheriff, a test by reference to which his fitness for office may be determined and a procedure by way of an investigation and a ministerial order which is subject to a negative resolution of either House of Parliament. The ministerial order is challengeable by judicial review (Stewart v Secretary of State for Scotland 1998 S.C. (H.L.) 81). In the present case the power of recall appears to be exercisable at pleasure.

40. It might be argued that the existence of this power of recall is not significant since, at least in recent years, it has not been exercised. I would regard such an argument as spurious. Quite apart from any other consideration, the fact that a temporary sheriff is appointed for only one year at a time has enabled the executive to maintain a close control over the period for which he holds office. This has made it unnecessary for the executive to take the formal step of recalling the appointment. The temporary sheriff is simply not re-appointed. Further, pending the expiry of the period of appointment, an immediate instruction can be given that he is not to be used. Unlike the permanent sheriff, he is a part-time sheriff and is not able to insist on a constant or regular supply of work. In the result, for a temporary sheriff not to be re-appointed has the same practical effect as recall.

41. It was suggested that a restricted scope could be given to the power to recall under section 11(4) by an argument on the following lines, namely that section 11(2) was intended to confer the power to appoint a temporary sheriff in order to meet a temporary need. This would give a narrow interpretation to the terms of para.(c). This construction may gain some support from use of similar language in section 16(1)(b), which relates to certain functions of the sheriff principal. If this construction of section 11(2) is correct - as Mr Bovey maintained - it might be possible to regard the power to recall as referring only to the situation in which the Secretary of State was satisfied that the temporary need no longer existed. If so, the power of recall would not be at pleasure but would be governed by the exhaustion of the purpose for which the appointment was made. The question of construction of the scope of section 11(2) is, perhaps unfortunately, not raised directly in this case. As the Solicitor-General pointed out, it would call in question the vires of the appointment of temporary sheriffs, since it is abundantly plain that they have not been appointed in order to meet a temporary need, let alone in particular sheriffdoms, but in order to deal with part of the routine workload, and in Scotland as a whole, to an increasing extent. For reasons of policy, into which I have not had to enquire, they represent a permanent supplement to the shrieval bench. Moreover such a construction of section 11(2), and hence the power of recall in section 11(4), does not appear to consist with the way in which the power of recall has been treated in the terms on which temporary sheriffs have been appointed. The Solicitor General also observed that it had never before been suggested that there was any ground for thinking that the appointment of temporary sheriffs was ultra vires. He submitted that in any event a narrow interpretation should not be placed on para.(c) of section 11(2). There was, he said, no reason why an appointment could not be made for an indefinite period, so as to avoid delay wherever this might occur, and hence serve the fundamental requirements of the sheriff courts in Scotland. At a later stage of his submissions, while continuing to maintain his position as to the scope of section 11(2), he suggested that the scope of section 11(4) could properly be understood as restricted to certain categories of situation, namely the meeting of a temporary need, the failure to fulfil a quota, the reaching of an age limit or conduct which was regarded as rendering the temporary sheriff as unfit for office. I would observe that if para.(c) of section 11(2) had the wide meaning contended for by the Solicitor-General there would hardly be a need for paras.(a) and (b). No doubt this interpretation of the scope of section 11(4) has the convenient effect of bringing the interpretation of that sub-section into alignment with the practice which has been followed by the Lord Advocate. However, I can find nothing in the terms of section 11 which would warrant that construction of the sub-section. It would require express language to achieve the effect suggested.

42. .n the circumstances I do not require to express a view as to whether appointment of temporary sheriffs is ultra vires of section 11(2). I should add that even if section 11(2) should be understood as having the narrow interpretation which I have outlined above, it does not follow that the power to recall would be similarly restricted. The terms of section 11(4) are, in my view, wide enough to enable an appointment to be brought to an end prior to the exhaustion of any purpose for which it was made.

43. I turn to consider the terms of appointment of the temporary sheriff, and in particular the implication of the fact that the appointment was limited to one year at a time. I have to some extent anticipated my remarks on this in dealing with the significance of section 11(4). That there should be any temporal limit seems to me to raise a question as to whether the temporary sheriff presents the appearance of independence. There is, incidentally, nothing in section 11 to empower the Secretary of State to impose any term or condition. That in itself may raise a question of the vires of the one year term, if not of the appointment itself. However, that is not the point with which I am concerned, and I reserve my opinion on it.

44. It is clear that in other parts of the world time-limited appointments of judges have given cause for concern. In the present case it might have been a reassurance if the reasons for this period were at least consistent with concepts of independence and impartiality. However, as I have already noted, the Solicitor-General was not able to give any reason why that period had been selected. He suggested that it might have been due to the possibility of a drop in the number of temporary sheriffs who were needed. That suggestion lacks plausibility in view of the manifest expansion in the use of temporary sheriffs as the demands on the system as a whole have increased over the years. 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.

45. Then there are what I have referred to as the restrictions applied by the Lord Advocate in determining whether a temporary sheriff qualifies for re-appointment. I refer to the minimum period of work which the temporary sheriff is expected to perform and the age limit of 65 years. For present purposes it does not matter that these do not form part of the terms of his appointment. What matters is that they clearly form part of the basis on which the temporary sheriff's prospective tenure of office rests. Neither is sanctioned by statute. They are matters of ministerial policy. They may change as one Lord Advocate succeeds another. As the Solicitor-General made clear, his description of the policy applied by the present Lord Advocate cannot be regarded as binding a successor. How such restrictions are applied is evidently a matter for his discretion, as the practice of the present Lord Advocate in regard to the age limit demonstrates. The tendency of these restrictions is significant. The first tends, if anything, to eliminate the temporary sheriff who would prefer to sit only occasionally, and to encourage the participation of those who are interested in promotion to the office of permanent sheriff, or at least in their re-appointment as a temporary sheriff. The second may also have a similar effect.

46. There was, in my view, some force in the submission made by Mr Bovey that the limits imposed by section 11(4) and the terms of appointment might tend to encourage the perception that temporary sheriffs who were interested in their advancement might be influenced in their decision-making to avoid unpopularity with the Lord Advocate. These restrictions tend to support the same argument.

47. As against these factors it is, of course, necessary to pay full regard to what were presented by the Solicitor-General as the guarantees of independence and impartiality of the temporary sheriff. The fact that the judicial oath is taken by the temporary sheriff and that he undergoes the training to which he referred are matters of importance. So too is the high standard of professional behaviour which is expected of and shown by those who practice law in Scotland. The practice followed by the present Lord Advocate in the appointment of temporary sheriffs, his lack of any connection with the way in which temporary sheriffs are used and the criteria used by him in determining whether a temporary sheriff has ceased to be fit for office are also important considerations. 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. Mr Bovey 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.

48. Part of the judgment in Valente v The Queen is of some interest in this connection. At. p.180 Le Dain J. referred to the fact that the provision for the re-appointment of a judge after his retirement had been challenged on the ground that, unlike his original appointment, it was during the pleasure of the executive and that complete pension entitlement depended on such re-appointment. He pointed out that the Ontario Court of Appeal had relied on the fact that during his seven years in office the Attorney General had always acted with respect to such re-appointments on the recommendation of the Chief Judge of the provincial court in question. That practice was referred to as "tradition". At p.182 he accepted that tradition, reinforced by public opinion, operating as an effective restraint upon the executive or legislative action, was undoubtedly a very important objective condition tending to ensure the independence in fact of a tribunal. At p.183, however, he went on to say:

"It is a question of the relative importance that one is going to attach to tradition in a particular context as ensuring respect for judicial independence despite an apparent or potential power to interfere with it. Moreover, while tradition reinforced by public opinion may operate as a restraint on the exercise of power in a manner that interferes with judicial independence, it cannot supply essential conditions of independence for which specific provision of law is necessary.

With the greatest respect for the contrary view, where, as in the case of Provincial Court judges at the time Judge Sharpe declined jurisdiction, the Legislature has expressly provided for two kinds of tenure - one under which a judge may be removed from office only for cause and the other under which a judge of the same court holds office during pleasure - I am of the opinion that the second class of tenure cannot reasonably be perceived as meeting the essential requirement of security of tenure for purposes of section 11(d) of the Charter. The reasonable perception is that the legislature has deliberately, in the case of one category of judges, reserved to the executive the right to terminate the holding of office without the necessity of any particular justification and without any inhibition or restraint arising from perceived tradition. I am thus of the view that a judge of the Provincial Court (Criminal Division) who held office during pleasure could not be an independent tribunal within the meaning of section 11(d) of the Charter."

49. This line of reasoning seems to me to be persuasive and to support the view that even when full allowance is made for the matters relied upon by the Solicitor-General, the power of recall under section 11(4) is incompatible with the independence and appearance of independence of the temporary sheriff. For the reasons which I have already indicated, I regard the one year limit to the appointment as being a further critical factor arriving at the same result. As regards the difference in the basis of payment as between a temporary and a permanent sheriff, I would not be disposed to regard this in itself as critical. Rather it illustrates the difference in status to which I have already referred. 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 perspective advancement. I have reached the view that a temporary sheriff, such as Temporary Sheriff Crowe, was not an "independent and impartial tribunal" within the meaning of Article 6(1) of the Convention.

50. That conclusion does not rely to any extent on the argument that, by reason of his remaining in practice, a temporary sheriff lacks the appearance of impartiality. I agree with the conclusion and reasoning expressed by Lord Reed in rejecting that argument.

51. As I have already stated I hold that the terms of section 11(4) of the 1971 Act are incompatible with Article 6(1) of the Convention. Under section 53 of the Scotland Act 1998 the general transfer of functions to the Scottish Ministers is confined to those functions which are exercisable within devolved competence, which, by definition, excludes any provision which is incompatible with any of the Convention rights (cf. section 29(2)(d)). Accordingly, as was pointed out by Lord Reed when this eventuality was being discussed, it follows that the function under section 11(4) was not transferred to the Scottish Ministers and accordingly remains with the Secretary of State for Scotland.

52. Returning to the terms of section 57 I require now to deal with an argument which was presented by the Solicitor-General that sub-section (2) did not apply in the present case by virtue of the saving set out in sub-section (3):

"Sub-section (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 in investigation of deaths in Scotland,

which, because of sub-section (2) of section 6 of the Human Rights Act 1998, is not unlawful under sub-section (1) of that section."

Sub-section (2) of section 6 of the Human Rights Act 1998 disapplies in certain circumstances the rule set out in sub-section (1) that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. According to the argument which was presented the relevant part of sub-section (2) was its provision that sub-section (1) did not apply to an act if "as the result of one or more provisions of primary legislation, the authority could not have acted differently".

53. The Solicitor-General submitted that in the middle of a trial the procurator fiscal had no alternative but to proceed. It would not have been in the public interest however to desert the diet simpliciter. I do not accept this argument. The provision of sub-section (2) of section 6 of the Human Rights Act which is relied upon is plainly intended to refer to an act of the public authority which is required by primary legislation. In this case the procurator fiscal was not required by primary legislation to proceed with the trial. Further, it was open to her to take no further steps in the trial and to invite the court to discharge the trial diet so that the accused could be tried before a permanent sheriff, or at any rate to concede that this should happen. In these circumstances I consider that there is no ground for invoking sub-section (3) of section 57 of the Scotland Act.

54. In the whole circumstances therefore I am of opinion that in proceeding with the trial the Lord Advocate, as represented by the procurator fiscal, acted incompatibly with the right of the accused under Article 6(1) to trial by "an independent and impartial tribunal". I move your Lordships to pass the Bills of Advocation for the accused and to remit the case to the temporary sheriff with directions to discharge the trial of the complainers and fix a new trial diet to be heard by a permanent sheriff. I also move your Lordships to pass the procurator fiscal's Bill of Advocation and to sustain her plea-in-law accordingly.

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Prosser

Lord Reed

Appeal Nos: 1798/99

1799/99

2006/99

OPINION OF LORD PROSSER

in

BILLS OF ADVOCATION

for

HUGH LATTA STARRS and JAMES WILSON CHALMERS

Complainers;

against

PROCURATOR FISCAL, Linlithgow

Respondent;

and

BILL OF ADVOCATION

for

PROCURATOR FISCAL, Linlithgow

Complainer;

against

HUGH LATTA STARRS and JAMES WILSON CHALMERS

Respondents:

_______

Complainers: Bovey, Q.C., N. McCluskey; Keegan Smith, Livingstone: Davidson, Q.C., S. Collins; Central Criminal Lawyers, Livingstone

Respondent: The Solicitor General, McCreadie; Crown Agent

Complainer: The Solicitor General, McCreadie; Crown Agent

Respondents: Bovey, Q.C., N. McCluskey; Keegan Smith, Livingstone: Davidson, Q.C.,

S. Collins; Central Criminal Lawyers, Livingstone

11 November 1999

1. I agree with your Lordship in the chair as to the appropriate disposal of the Bills of Advocation by Starrs and Chalmers, and the Bill of Advocation by the Procurator Fiscal.

2. The history of these cases is fully set out in the Opinions delivered by your Lordship and Lord Reed, as are the relevant statutory provisions, the authorities to which we were referred and the submissions of the parties. I do not therefore go over that ground again. Moreover, there is no issue upon which I see myself as taking a significantly different view from either of your Lordships. I have indeed considered whether there is anything that I should add: 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. That is sufficient for the disposal of these cases, and while there was some suggestion that our opinions in these cases would afford guidance as to what changes if any might be made, I think that such guidance must be found in what is said in order to dispose of these cases, without our embarking on any wider attempt to define or indicate, in the abstract, what is required to produce a tribunal which is independent and impartial. There are however a number of points which I think it appropriate to discuss briefly, in supplement to what has been said by your Lordships, which may help to show why I am in full agreement with the conclusions which you have reached.

3. The requirements of Article 6 of the European Convention on Human Rights apply equally to the determination of a person's civil rights and obligations on the one hand, and any criminal charge against him on the other hand. While the meaning of the words themselves will be the same in either context, the characteristics which a tribunal will have to have, in order to be held independent and impartial, may in my opinion vary considerably, according to the nature and function of a tribunal. I would wish to emphasise that the context with which we are concerned is the determination of criminal charges; and just as I think it difficult to apply to such a context the observations which have been made by courts when dealing with tribunals of quite different kinds, so also I would think it inappropriate to apply anything which we say, in this context, to other types of tribunal where independence and impartiality perhaps can and should be achieved in very different ways.

4. As regards the actual words "independent" and "impartial", the latter appears to me to be of the essence of the judicial process. I would regard the concept of a partial judge as a contradiction in terms. But I am inclined to see independence - the need for a judge not to be dependent on others - as an additional substantive requirement, rather than simply a means of achieving impartiality or a perception of impartiality. Independence will guarantee not only that the judge is disinterested in relation to the parties and the cause, but also that in fulfilling his judicial function, generally as well as in individual cases, he is and can be seen to be free of links with others (whether in the Executive, or indeed the judiciary, or in outside life) which might, or might be thought to, affect his assessment of the matters entrusted to him. The requirement of independence seems to me to have an importance which runs even wider than that of impartiality. The two concepts appear to me to be inextricably interlinked, and I do not myself find it useful to try to separate the one from the other.

5. There is little that I would wish to add to what is said by your Lordships in relation to Section 11 of the Sheriff Courts (Scotland) Act 1971. Neither the history of non-permanent appointments, nor the more immediate background to the passing of these provisions seems to me to suggest that Parliament intended to give the Secretary of State a wide discretion to appoint temporary Sheriffs in the absence of a specifically identified immediate need in a particular Sheriffdom. But I find it difficult to regard the provision as requiring construction, and am inclined to see the actual words used as conferring a much wider power than was necessary to meet what appear to have been the prior intentions. As regards sub-section (4), I see no scope for varying interpretations. There is in my opinion a simple power of recall, at the Secretary of State's discretion. A general requirement of reasonableness is perhaps implicit, with a consequential possibility of judicial review. But I am quite unable to regard either long tradition or recent practice as altering the Secretary of State's freedom of action in terms of this section. The very substantial narrative of procedures and practices which are in fact followed, but are not required by law, seemed to me to provide the perfect illustration of a temporary Sheriff's total dependence upon the Executive for his continuance in office.

6. Most of what was said about the appointment of temporary Sheriffs related to what I would call their initial appointment. While we were told that reappointment was virtually automatic, the word "virtually" is to be noted: reappointment is not in any real sense automatic but involves exercise of a discretion. Given the practice of appointment for one year (itself to my mind of doubtful validity) it seems to me that at any point in time, a temporary Sheriff's appointment must be regarded as dating from only the previous January. In relation to the crucial question of tenure, I see no force in the suggestion that these can be regarded as longer term appointments.

7. Quite apart from the shortness of the period of appointment, and the fact that in any event it can be recalled at any time, the dependence of a temporary Sheriff on the Executive is in my opinion all the more apparent when one considers other features of these appointments. The appointments are described as "part-time". But they are not part-time in the ordinary sense, according to which an employee works, say, 20 hours per week. The temporary Sheriff is not only liable to be "suspended", no longer being used at all during the currency of his appointment. The extent to which he is used, and thus the extent to which he is remunerated, appears to be entirely at the discretion of the Executive. In such circumstances, while at one level he can be said to have been appointed to the office and to retain it, at another and more practical level he can be regarded as effectively "appointed" each time that he is in fact used. For the purposes of the present cases, it is not necessary or appropriate to embark upon an assessment of the merits or demerits of such a system. But it appeared that those who were most available were likely to be most used, and that appointment to the permanent office of Sheriff could depend substantially upon whether and how an individual had served as a temporary Sheriff. While these were put forward as reasonable and indeed advantageous aspects of the system, they provide another vivid illustration of a temporary Sheriff's dependence on the Executive.

8. Given that a permanent appointment to the Shrieval bench is dependent on long years of experience in legal practice, it is by no means clear to me that one should be required to have a trial period, on the bench, prior to such appointment. But the fact that temporary Sheriffs will apparently often be hoping for a permanent appointment, and that they hold office during this period with no assurance that they will be used or reappointed, far less given a permanent position, constitutes, to my mind, a quite extreme form of dependence. One must not be Utopian, and a hope of promotion, for example, is no doubt present in the minds of many judges in many systems. I would stop short of saying that this is a general basis for alleging "dependence" on those who can promote. But the possibility of obtaining a better post makes it more, not less, important that there should be security of tenure at any particular level.

9. If a person is appointed to judicial office ad hoc, for a particular purpose, the length of his tenure may be of no significance: he will go, and go only, when he is functus. Equally, length of tenure may be of little importance when the office is not a step in a career, but is something done out of a sense of duty, or at the end of a career. But in the case of temporary Sheriffs, where the appointment is frequently a "career move", the combination of a one-year appointment with liability to either recall or suspension or limited use is in my opinion wholly inconsistent with the requirement of independence.

10. However long and secure the tenure of a judicial office may normally be, irremovability cannot be absolute. In the classic terminology, the appointment will be ad vitam aut culpam. (If not for life, appointment should be for a period which can be identified without discretionary intervention). It is not necessary here to consider what types of conduct might, in any given system, be regarded as "culpa" for this purpose. But if a judge's independence is to be preserved, notwithstanding the fact that he can thus be removed, two things seem to me to be important. First, the question of what will be regarded as "culpa" cannot be left to the discretion of any person upon whom the judge should not in principle be dependent. And secondly even if the scope of culpa is known and determined, the question of whether culpa on the part of the judge has been established cannot be left to the discretion of such a person. Even if, in practice, temporary Sheriffs were only removed by procedures identical with those which govern the removal of permanent Sheriffs, the temporary Sheriff could not in my opinion be regarded as independent in the requisite sense: as in other respects, a practice is no substitute for a right.

11. I would add one final point. 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.

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Prosser

Lord Reed

 

 

 

 

Appeal Nos: 1798/99

1799/99

2006/99

OPINION OF LORD REED

in

BILLS OF ADVOCATION

for

HUGH LATTA STARRS and JAMES WILSON CHALMERS

Complainers;

against

PROCURATOR FISCAL, Linlithgow

Respondent;

and

BILL OF ADVOCATION

for

PROCURATOR FISCAL, Linlithgow

Complainer;

against

HUGH LATTA STARRS and JAMES WILSON CHALMERS

Respondents:

_______

Complainers: Bovey, Q.C., N. McCluskey; Keegan Smith, Livingstone: Davidson, Q.C.,

S. Collins; Central Criminal Lawyers, Livingstone

Respondent: The Solicitor General, McCreadie; Crown Agent

Complainer: The Solicitor General, McCreadie; Crown Agent

Respondents: Bovey, Q.C., N. McCluskey; Keegan Smith, Livingstone: Davidson, Q.C.,

S. Collins; Central Criminal Lawyers, Livingstone

11 November 1999

1. The Appeals of Starrs and Chalmers

1. Article 6 paragraph 1 of the European Convention on Human Rights provides inter alia:

"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."

The principal issue raised in these appeals is whether that right is violated by the trial of an accused person before a temporary sheriff. The submission made on behalf of the appellants is that such a sheriff does not constitute "an independent and impartial tribunal" within the meaning of Article 6. Although the objection taken on behalf of the appellants concerns a particular temporary sheriff, it was common ground at the hearing of the appeals that nothing turns on any specific circumstances relating to that particular temporary sheriff.

2. The issue arises in consequence of the enactment of the Scotland Act 1998. Section 57(2) of that Act provides:

"A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with community law."

The Lord Advocate is a member of the Scottish Executive: section 44(1)(c). It is conceded by the Solicitor General for Scotland, who represented the Lord Advocate in the proceedings before us, that the prosecution of a trial by a procurator fiscal or one of his or her deputes involves a number of steps which amount to "acts" within the meaning of section 57(2), and that those acts are to be treated as the acts of the Scottish Executive for the purposes of that provision. The "Convention rights" to which section 57(2) refers include the rights guaranteed by Article 6 of the European Convention on Human Rights: section 126(1) of the Scotland Act, read with section 1(1)(a) of the Human Rights Act 1998. Accordingly, subject to section 57(3) of the Scotland Act (which excludes the application of section 57(2) in certain specified circumstances), it is ultra vires for a procurator fiscal to prosecute a trial before a temporary sheriff if such a sheriff is not an independent and impartial tribunal within the meaning of Article 6.

3. Temporary sheriffs are a statutory creation. The relevant provisions are contained in section 11 of the Sheriff Courts (Scotland) Act 1971. Section 11(1) (which has subsequently been substituted by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980) deals with the appointment of temporary sheriffs principal. Section 11(2) is in the following terms:

"Where as regards any sheriffdom -

(a) a sheriff is by reason of illness or otherwise unable to perform his duties

as sheriff, or

(b) a vacancy occurs in the office of sheriff, or

(c) for any other reason it appears to the Secretary of State expedient so to

do in order to avoid delay in the administration of justice in that sheriffdom,

the Secretary of State may appoint a person (to be known as a temporary sheriff) to act as a sheriff for the sheriffdom."

The Solicitor General explained to us that all appointments are made under section 11(2)(c). The words "for any other reason", in subsection (2)(c), are not construed eiusdem generis with illness, inability or a vacancy in subsection (2)(a) and (b). They are not, in other words, construed as referring to some temporary exigency (other than illness, inability or a vacancy) which the Secretary of State has identified in a particular sheriffdom. They are construed as conferring a wide discretion on the Secretary of State which can be used, as it has been used, to create a large pool of persons, each appointed to act as a sheriff for every sheriffdom in Scotland, and available to supplement the permanent sheriffs as and when the need arises, to the extent of performing (at present) 25% of the total workload.

4. Section 11(3) stipulates the formal qualification for appointment as a temporary sheriff, namely qualification as an advocate or solicitor for at least five years. This is a lesser requirement than for appointment on a permanent basis, for which the minimum period is ten years: section 5(1).

Section 11(4) provides:

"The appointment of a temporary sheriff principal or of a temporary sheriff shall subsist until recalled by the Secretary of State".

The Solicitor General accepted that the effect of this provision is that a temporary sheriff holds office at pleasure. He submitted that the power to recall an appointment could not be regarded as implicitly limited, by section 11(2), to circumstances in which the reason which had made the appointment expedient, in order to avoid delay in the administration of justice, had ceased to obtain. I shall return to this point at a later stage in this Opinion. Section 11(4) can be contrasted with the provisions of section 12, which provide security of tenure to permanent sheriffs. Under section 12, a permanent sheriff can be removed from office only by an order which is subject to annulment in pursuance of a resolution of either House of Parliament. Such an order can only be made on a report by the Lord President and the Lord Justice Clerk to the effect that the sheriff is unfit for office by reason of inability, neglect of duty or misbehaviour. Such a report can only be made following an investigation by the Lord President and the Lord Justice Clerk. These provisions, the history and effect of which are discussed in Stewart v. Secretary of State for Scotland, 1998 S.C. (H.L.) 81, strengthened the protection previously given to sheriffs, in accordance with recommendations contained in the Report of the Grant Committee on the Sheriff Court (Cmnd. 3248, 1967). Temporary sheriffs are expressly excluded from the scope of these provisions: section 12(7).

5. Section 11(4A) (as inserted by the Judicial Pensions and Retirement Act 1993, Schedule 6, paragraph 11) provides:

"No appointment under this section of a person to be a temporary sheriff principal or temporary sheriff shall extend beyond the day on which the person reaches the age of 70."

That prohibition is made subject, by section 11(4B), to a power to authorise continuance in office up to the age of 75. As the Solicitor General explained, the present Lord Advocate has introduced an administrative policy of not renewing commissions once the temporary sheriff has reached the age of 65.

6. Section 11(5) provides:

"If the Secretary of State, on appointing any person to be a temporary sheriff principal or a temporary sheriff, so directs, the provisions of section 6(1) of this Act shall apply in relation to that person as they apply in relation to a person holding the office of sheriff."

Section 6(1) prohibits a permanent sheriff principal or sheriff from engaging in any private practice or business. From what we were told, it appears that those provisions are never applied to temporary sheriffs, because such sheriffs are only used on a part-time basis.

Section 11(6) provides:

"A person appointed to be temporary sheriff principal of, or a temporary sheriff for, any sheriffdom shall for the purposes of his appointment, without the necessity of his receiving a commission in that behalf, have and be entitled to exercise the jurisdiction and powers attaching to the office of sheriff principal or, as the case may be, sheriff in that sheriffdom."

In the light of that provision, the only purpose of the "commission" issued to temporary sheriffs would appear to be to constitute a formal instrument of appointment.

7. In support of his interpretation of this legislation, the Solicitor General explained to us the antecedents of section 11 in earlier legislation and in the Report of the Grant Committee, and also referred us to certain Parliamentary materials. Prior to the 1971 Act there was no such office as that of "temporary sheriff". Legislation had however provided for the appointment of "interim sheriffs" since 1907 (the office now known as that of "sheriff" was then known as that of "sheriff-substitute", but I shall use the modern nomenclature for the sake of clarity). Section 16 of the Sheriff Courts (Scotland) Act 1907 empowered the Secretary of State for Scotland to appoint a person to act as interim sheriff in the event of a salaried sheriff "by reason of ill-health, being temporarily unable to discharge the duties of his office". The appointment could be made only on application being made to the Secretary of State for Scotland by or on behalf of the salaried sheriff. The person appointed had to be qualified to fill the salaried officer. There was no power to recall the appointment, but it was an appointment "to act ad interim in the place and during the absence of" the salaried sheriff. It therefore came to an end automatically upon the salaried sheriff's return to his duties. Section 14 of the Sheriff Courts and Legal Officers (Scotland) Act 1927 provided that an appointment under section 16 of the 1907 Act was to have effect, in the event of a vacancy occurring in the office of the salaried sheriff, as an appointment to act as sheriff until the vacancy was filled. Section 4(2) of the Administration of Justice (Scotland) Act 1948 empowered the Secretary of State to appoint an interim sheriff in the event of a vacancy arising in the office of salaried sheriff. The person appointed had to be qualified to fill the salaried office. There was no power to recall the appointment, which was "to act ad interim...until the vacancy shall be filled." The appointment accordingly came to an end automatically when the vacancy was filled. The power to appoint interim sheriffs was considered by the Grant Committee, who recommended no change in the arrangements (Report, para. 412).

8. As part of the background to the 1971 Act it is also relevant to have regard to section 17 of the 1907 Act, which remains in force. Section 17, read short, empowers a sheriff principal to appoint such persons as he thinks proper to hold the office of honorary sheriff within his sheriffdom during his pleasure. It appears from the Report of the Grant Committee (para. 404) that on occasion someone with legal qualifications (usually an advocate) was appointed under section 17 on a paid basis to preside over courts for a short period during the absence of the salaried sheriff, or to assist him during a period of pressure. These short-term emergencies were met by the appointment of what were somewhat illogically known as "paid honorary" sheriffs. The formal authority to act was granted by the sheriff principal under section 17 of the 1907 Act, but the person was in practice engaged by the Lord Advocate. The Grant Committee considered that the appointment of honorary sheriffs, paid and unpaid, would have to continue:

"...emergencies will undoubtedly occur where a sheriff-substitute [i.e. what would now be called a sheriff] suddenly falls ill or where there is sudden temporary pressure of work, which can be met only by temporary reinforcement of the Bench by a qualified person...As a matter of detail, it might be desirable that the Secretary of State, as well as the sheriff, should be able in an emergency to authorise a 'paid honorary' sheriff-substitute to act; an advocate engaged at very short notice to sit at a particular court might have difficulty in obtaining from the sheriff principal, perhaps resident elsewhere in the sheriffdom, the necessary commission as an honorary sheriff. Apart from this we think the sheriff principal should retain his power to appoint honorary sheriffs-substitute." (para. 405).

The Solicitor General founded particularly on what was said by the Grant Committee at paragraph 406 of their Report:

"It was put to us that there might be a pool of advocates, perhaps maintained by the Lord Advocate, who would be available to sit as paid honorary or interim sheriffs-substitute throughout Scotland. The idea was that the pool should be a large one, including most advocates, so that the willingness of a particular individual to act as a paid honorary sheriff-substitute should not be construed as a desire for a permanent appointment as a full-time sheriff-substitute, with possible adverse effects on his private legal practice. We understand that there are a number of advocates who are available for appointment, and that the Lord Advocate would approach one of these when it is necessary to appoint paid honorary sheriffs-substitute, and we doubt whether more formal arrangements are necessary."

It appears to me however that the suggestion canvassed in that passage - which was not endorsed by the Committee - bears little resemblance to the current system of appointment of temporary sheriffs. The temporary sheriffs form a pool of persons who have been actually appointed to shrieval office, rather than a pool from whom appointments might be made when occasion arose. Far from the pool existing so as to avoid willingness to act being construed as a desire for a permanent appointment, membership of the pool of temporary sheriffs has increasingly come to be coveted as a step on the road towards a permanent appointment, and on the Lord Advocate's side it has equally come to be seen to some extent as, in effect, a probationary period during which potential candidates for a permanent appointment can be assessed.

9. The Solicitor General submitted, correctly in my opinion, that the provisions for the appointment of interim sheriffs in section 16 of the 1907 Act and section 4(2) of the 1948 Act could be regarded as the antecedents of the powers to appoint a temporary sheriff in the event of the incapacity of the permanent sheriff, or in the event of a vacancy in that office, under section 11(2)(a) and (b) respectively of the 1971 Act. Although the suggestion was not made by the Solicitor General, it seems to me that the power conferred on the Secretary of State by section 11(2)(c) can also be related to the previous practice of appointing paid honorary sheriffs under section 17 of the 1907 Act (a practice which has fallen out of use), and to the Grant Committee's recommendation that the Secretary of State should have the power to make such appointments. It is however questionable whether that background supports the Solicitor General's wide interpretation of section 11(2)(c), given that both the practice in respect of paid honorary sheriffs, and the Grant Committee's recommendation, concerned a power of appointment exercised "in an emergency".

10. The Solicitor General also referred us to the Parliamentary proceedings during the passage of the Bill which became the 1971 Act, and in particular to the explanatory statement made by the responsible Minister, Baroness Tweedsmuir of Belhelvie, when introducing the second reading debate in the House of Lords. Specifically, the Solicitor General drew our attention to a passage in her speech which implicitly referred to the provision which became section 11:

"The Bill also provides that the Secretary of State may deal with the emergencies by the appointment of temporary sheriffs principal and sheriffs either to fill vacancies until a permanent appointment can be made or, in the case of sheriffs, to add to the shrieval strength to clear a backlog of cases. The existing powers in this respect are scattered through several Acts dated from 1907 to 1948 and are out of keeping with modern conditions." (H.L. Deb., 22 June 1971, col. 835).

This passage does not, to my mind, give much support to the wide construction of section 11(2)(c) for which the Solicitor General contended, but tends rather to suggest that what the Minister had in mind was the making of truly temporary appointments to deal with emergencies. I note that the Minister also stated (at col. 834):

"There are two very important principles that underlie this Bill. The first concerns the constitutional importance of this measure because of the interdependence of Parliament and the Judiciary... The second principle is that the Executive must not encroach upon the independence of the Judiciary. A Judiciary that is independent of the Executive is one of the most important distinguishing features of our system of justice in this country."

One further passage to which we were referred occurred in a contribution to the debate by Lord Wheatley, when he suggested (at col. 883-884) that a pool of "floating" sheriffs be created, holding the full status of a sheriff but not allocated permanently to any particular court, and thus able to act temporarily as sheriffs whenever a need should arise. That suggestion was acted upon following the enactment of the 1971 Act, and what are colloquially known "floating sheriffs" have become familiar in our practice. Such sheriffs receive a commission appointing them as sheriffs of a particular sheriffdom, and at the same time a direction from the Secretary of State (under sections 9 and 10 of the 1971 Act) requiring them to sit in every other sheriffdom.

11. Finally, as an aid to the interpretation of section 11 of the Solicitor General referred us to the principle to be found in R. v. Secretary of State for the Home Department, ex parte Brind [1991) 1 A.C. 696, which was stated by Lord President Hope in T, Petitioner, 1997 S.L.T. 724 (at 734) in the following terms:

"...that, when legislation is found to be ambiguous in the sense that it is capable of a meaning which either conforms to or conflicts with the Convention, Parliament is to be presumed to have legislated in conformity with the Convention, not in conflict with it."

I turn next to the interpretation of the critical provisions of section 11 in the light of these materials. As I noted earlier, the Solicitor General submitted that section 11(2)(c) conferred a wide discretion upon the Secretary of State which could properly be used to create a large pool of persons, each appointed to act as a sheriff for every sheriffdom in Scotland, available to supplement the permanent sheriffs as and when the need arose, and holding office on the basis of an appointment which was renewable annually. In relation to section 11(4), the Solicitor General accepted that this impliedly conferred upon the Secretary of State a power to recall the appointment at will. It was not suggested that the exercise of the power could be subjected to any close scrutiny by way of judicial review. It was maintained that there was no duty to give reasons for the exercise of the power, although as a matter of practice reasons had in fact been given during the term of office of the present Lord Advocate. Counsel for the appellants did not dispute this construction of the legislation. It was common ground that section 11(4) in particular provided no security of tenure whatsoever for temporary sheriffs. The issue in dispute, so far as security of tenure was concerned, was whether the degree of protection which in practice existed, as a consequence of the involvement of the Lord Advocate and his independence from the political process, was sufficient to satisfy the requirements of Article 6 of the Convention.

12. I have to confess that I have some misgivings, as I indicated at the hearing of these appeals, as to whether the interpretation placed upon section 11 by the parties is in fact correct. It appears to me to be questionable in particular whether Parliament can have intended section 11(2)(c) to authorise the appointment of so-called temporary sheriffs who in reality hold office on annual commissions whose renewal is "virtually automatic", and who are appointed not in order to deal with any particular problem of a temporary nature which has been identified in any particular sheriffdom, but so as to be available to supplement the work of the permanent sheriffs to the extent of performing one quarter of the entire work of the Sheriff Court. The appointment of such sheriffs would appear to me to be a constitutional innovation which was not foreshadowed either in the Report of the Grant Committee or in the Parliamentary proceedings to which we were referred. Those materials, and the antecedents of temporary sheriffs in the law and practice relating to interim sheriffs and paid honorary sheriffs, would seem to me to give some support to a narrower construction of section 11(2)(c), eiusdem generis with subsections (2)(a) and (b). I also find it not altogether obvious how the wider construction of section 11(2)(c) can be reconciled with some of the other provisions of that section. The system in operation has apparently rendered subsection (2)(a) and (b) unnecessary, since the problems mentioned in those provisions are in practice dealt with by appointments made under subsection (2)(c). Subsection (5) is never applied, because all appointments made under subsection (2)(c) are part-time. Subsection (6) does not operate in the way one might have expected, since persons appointed under subsection (2)(c) are not expected to exercise any jurisdiction or powers unless and until, and for so long as, the booking clerk allocates them to a particular court. It also seems to me that a restrictive interpretation of section 11(2)(c) might be supported both by the principle that statutes interfering with the independence of the judiciary should be strictly construed (Mackay and Esslemont v. Lord Advocate, 1937 S.C. 860, 868) and by the principle of interpretation stated by Lord President Hope in T, Petitioner; particularly where the construction given to section 11(2)(c) is liable to influence the extent of the power to recall appointments to which section 11(4) refers. It would not however be appropriate for me to discuss these matters in greater detail, far less to express a concluded view upon them, in the absence of submissions on these points by counsel. I mention them only because of the bearing which the interpretation of section 11(2) might have upon the interpretation of section 11(4), a provision which appears to me to be of critical importance in these appeals.

13. As I have mentioned, the Solicitor General's position was that section 11(4) implicitly conferred an unlimited power to recall, with the consequence that temporary sheriffs held office at pleasure, protected only by the integrity and good sense of the Lord Advocate. There was no duty to give reasons for the recall of an appointment. It was not suggested that there was scope for any close scrutiny of decisions to recall an appointment by way of judicial review. This was also the position of the appellants.

14. I again harbour some doubts as to whether the position is quite so straightforward. If section 11(2) were to be interpreted as conferring a power of appointment which was limited to situations in which a temporary exigency had been identified, then it seems to me that that context might conceivably influence the interpretation given to section 11(4). I do not however propose to pursue that possibility. The Solicitor General made it clear that that was not his position, recognising the dilemma in which he was placed. If the interpretation which had been placed upon section 11(2) was incorrect, with the consequence that the existing appointments were based upon an erroneous interpretation of section 11(2), or upon the use of the power conferred by section 11(2) for an improper purpose, then that would scarcely strengthen his position. Article 6 requires not only an "independent and impartial" tribunal, but also one which is "established by law" (cf. Application No. 7360/76, Zand v. Austria (1978) 15 D.R. 70). Any problem as to the vires of an appointment would also have implications under Scots law, quite apart from the Convention.

15. Even if one were to construe section 11(2) as widely as the Solicitor General invited us to do, however, I entertain some doubts as to whether section 11(4) is quite as resistant to judicial review as was implicit in the Solicitor General's position. I would not, without hearing argument on the point, wish to be taken as assenting to the proposition that there could be no duty to give reasons for the recall of an appointment. Nor would I rule out the possibility of judicial review of a decision to recall an appointment on familiar Wednesbury principles. Nevertheless, the Solicitor General was I think correct in his implicit assumption that no close scrutiny of the merits of a decision would be possible. In particular, in the absence from section 11(4) of any express or implied criteria for the recall of an appointment, it is impossible to envisage any close scrutiny of the grounds for maintaining that those criteria were met, such as took place in Stewart v. Secretary of State for Scotland, 1998 S.C. (H.L.) 81. Indeed, in the absence of any specified grounds for removal from office, it is difficult to envisage even any detailed scrutiny of what those grounds should be. I suspect that judicial review would in practice be likely to be concerned principally with the fairness of the procedure followed; and even such procedural requirements might be limited in consequence of th