News In Focus
16 November 2007
Court limits "temporary sheriff" challenges
The Human Rights Act does not give a right of challenge to convictions in cases heard before a temporary sheriff prior to the Human Rights Act coming into force.
Five judges of the High Court, led by the Lord Justice General, Lord Hamilton, have rejected challenges to convictions by Kenneth Dickson and Iain McNaughton which predated the devolution of powers under the Scotland Act 1998. In doing so the court also made clear its view that there is legislative protection for temporary sheriffs' decisions even after devolution.
After the Act came into force, the court in Starrs v Ruxton held that a temporary sheriff was not an independent and impartial tribunal for the purposes of the Human Rights Act, due to their lack of security of tenure, and that prosecutors under the Lord Advocate therefore had no power to bring cases before them. The effect of the Act on cases heard before it came into force has now been decided.
Lord Hamilton, delivering the leading judgment, said that a majority of the judges in the English House of Lords case of Lambert had ruled that an appellant could not rely on Convention rights in a national court in respect of a conviction before the Human Rights Act came into force. Although House of Lords decisions in criminal cases were not binding in Scotland, they were entitled to great respect and it was undesirable that there should be conflicting decisions in Scotland and England. He was not persuaded that the majority view was clearly wrong.
Further, while the importance of security of tenure was part of Scots common law, Parliament in enacting the provisions regarding the appointment of temporary sheriffs "must be taken to have been content" that sheriffs so appointed might be subject to perceptions as to their lack of "institutional impartiality", and their decisions were not open to successful challenge.
The court also expressed the view that if there had been a breach of the Convention, the Lord Advocate's actions were protected by section 57(3) of the Scotland Act, through the combination of section 6(2)(b) of the Human Rights Act and section 11(6) of the Sheriff Courts (Scotland) Act 1971.
The effect of that is that contrary to what was previously thought, the Human Rights Act and the Scotland Act do not give a right of challenge to convictions in cases heard before temporary sheriffs. On the basis of an argument not previously presented, the decision departs from without expressly overruling the decision in Starrs v Ruxton and makes it clear that in any event the Scotland Act 1998 and the Human Rights Act 1998 do not have retrospective effect as regards convictions by temporary sheriffs.
The decision can be read at http://www.scotcourts.gov.uk/opinions/2007HCJAC65.html .