Acquiescence no bar to temporary sheriff appeals

Pre-Scotland Act cases allowed to go to hearing on merits

News, 12 October 2006

Three criminal appeals relating to cases presided over by temporary sheriffs, dating from before the commencement of the Scotland Act 1998, have been allowed to go to a hearing on the grounds of appeal after Crown pleas of acquiescence were rejected.

The appeals, by Kenneth Dickson, Archibald McHale and Ian McNaughton, all related to proceedings in 1998 or early 1999. The Act came into force on 20 May 1999 and in November of that year the appeal court held in Starrs v Ruxton that a temporary sheriff was not an independent and impartial tribunal as required by article 6 of the Human Rights Convention, given effect in the Act.

The present appeals raise what the appeal court described as "the as yet undecided question whether the same result follows in a case where the conviction and sentence took place before the commencement of the Scotland Act, either on the basis that the provisions of the Convention can be applied retrospectively to proceedings that took place before the Lord Advocate's powers were circumscribed by reference to the Convention, or on the basis that at common law a temporary sheriff was not an independent and impartial tribunal, and that trial before and sentence by a temporary sheriff was therefore contrary to the principles of natural justice".

In each case the Crown argued as a preliminary point that the appellant had acquiesced in the result of the case, as the appellants had not raised the human rights point until 2000 or 2001 although other appeal proceedings had taken place and (in one case) the penalty imposed had been served in full.

The appeal judges, Lords Macfadyen, Abernethy and Philip, however accepted the appellants' argument that they "did not have the knowledge necessary to render them vulnerable to the plea of acquiescence". Referring to earlier Privy Council decisions on the nature of the knowledge required for acquiescence, the court said that the decision in Starrs did not provide that knowledge because it was based on the position after the Scotland Act came intro force.

"We accept that such discussion as there has been of the question of the retrospective applicability of the Convention is not clear and decisive enough to be founded on as providing a basis for such knowledge as would support a plea of acquiescence against the appellants." Nor was there any basis for knowledge that a common law ground of challenge was available.

It followed, said the court, that the pleas of acquiescence should be repelled and the appeals continued for a hearing on the outstanding issues.

The court's decision can be read at http://www.scotcourts.gov.uk/opinions/2006HCJAC74.html .