Latest "temporary sheriffs" challenge fails

Full bench upholds Crown plea that accused barred by acquiescence

News, 18 January 2005

Accused who were convicted before temporary sheriffs and did not bring proceedings to challenge their convictions for two years had acquiesced in the decisions and could not claim the convictions were invalid, five judges in the High Court ruled today.

Three accused, Martin Robertson, Seamus O'Dalaigh and Kevin Ruddy, had asked the court to overrule its 2002 decision in Lochridge v Miller that acquiescence could apply, despite the ruling in Starrs v Ruxton (1999) that a temporary sheriff was not an independent and impartial tribunal in terms of the Human Rights Convention. Each had waited until after a 2001 ruling by the Privy Council, in Miller v Dickson, that the appellants in that case had not waived their right to trial before an independent and impartial tribunal, before bringing their own appeals.

They argued that the later Privy Council decision R v HM Advocate had held that it was ultra vires for the procurator fiscal to bring proceedings before a temporary sheriff. They therefore claimed that the proceedings were a nullity and it was not possible to acquiesce in what was void.

The court however pointed out that because the case depended on the human rights provisions in the Scotland Act and not the Human Rights Act itself, the nullity founded on was the act of the prosecutor and not that of the court, which had acted within its powers. Lord Justice General Cullen said that it was clear that Miller v Dickson left open the possibility of waiver and a conviction by a temporary sheriff could therefore not be regarded as a fundamental nullity.

Even if an accused could not be said to have waived his right at the time of trial, it was open to the court to conclude in appropriate circumstances that the challenging of a conviction or sentence was not barred by subsequent acquiescence.

"I consider that the court correctly held in Lochridge v Miller that acquiescence was not incompatible with the right of an accused to an independent and impartial tribunal."

The pleas should be upheld in the present case as each accused knew from the time of the decision in Starrs that they had a well founded basis for challenging their convictions. Although the High Court and Privy Council had differed over whether waiver should apply, and that had been in doubt for a time, there were still significant periods in which each accused could have acted. The fact that penalties imposed had been at least partly performed was also relevant; and even if the decision in any proceedings brought might have been postponed until other cases were settled, "this does not affect the question of the inference which may be drawn from their inaction".

Lord Hamilton, Lord Macfadyen, Lady Cosgrove and Lord Philip delivered separate opinions agreeing with the Lord Justice General.

The full text of the judgments can be read at www.scotcourts.gov.uk/opinions/XJ724-1285.html .