Millar v Dickson: PC 24 Jul 2001

The Board was asked whether the appellants had waived their right to an independent and impartial tribunal under article 6 of the Convention by appearing before the temporary sheriffs without objecting to their hearing their cases on the ground that they did not meet this requirement.
Held: A trial before a temporary Sheriff was not a hearing before an independent tribunal, and was invalid unless there was some explicit waiver by the defendant of his rights in this respect. The Lord Advocate had become a member of the Scottish Executive, and was bound to act in accordance with the Human Rights legislation. It was not permissible to distinguish these case from earlier ones on the basis that they had only taken exception to the lack of independence of the tribunal at a late stage. There was no reason to think that the doubts about the standing of temporary sheriffs was widely understood. No accusation of actual bias had been made against temporary sheriffs, but their status was now accepted to be incompatible with the independence required of a tribunal. The concepts of impartiality and independence are closely linked.
Lord Steyn said: ‘it is a basic premise of the Convention system that only an entirely neutral, impartial, and independent judiciary can carry out the primary task of securing and enforcing Convention rights.’
Lord Bingham said: ‘The conduct of trials at all stages by an independent and impartial tribunal is in my view recognised by the Convention and the authorities, subject to waiver where that is permissible, as a necessary although not a sufficient safeguard of the citizen’s right to a fair trial. It is a safeguard which should not, least of all in the criminal field, be weakened or diluted, whatever the administrative consequences.’ and
‘In most litigious situations the expression ‘waiver’ is used to describe a voluntary, informed and unequivocal election by a party not to claim a right or raise an objection which it is open to that party to claim or raise. In the context of entitlement to a fair hearing by an independent and impartial tribunal, such is in my opinion the meaning to be given to the expression. That the waiver must be voluntary is shown by Deweer v Belgium (1980) 2 EHRR 439, where the applicant’s failure to insist on his right to a fair trial was held not to amount to a valid waiver because it was tainted by constraint (para 54, p 465). In Pfeifer and Plankl v Austria (1992) 14 EHRR 692 there was held to be no waiver where a layman had not been in a position to appreciate completely the implication of a question he had been asked . . In any event, it cannot meaningfully be said that a party has voluntarily elected not to claim a right or raise an objection if he is unaware that it is open to him to make the claim or raise the objection. It is apparent from passages already cited from cases decided by the European Court of Human Rights that a waiver, to be effective, must be unequivocal, which I take to mean clear and unqualified . .’

Bingham of Cornhill, Nicholls of Birkenhead, Clyde, Scott of Foscoe
Times 27-Jul-2001, [2002] 1 WLR 1615, DRA Nos 5, 6, 7, and 8 of 2000, [2001] UKHRR 999, 2001 SLT 988, 2002 SC (PC) 30, [2002] 3 All ER 1041, [2001] HRLR 59, [2001] UKPC D4, 2001 SCCR 741, 2001 GWD 26-1015
PC, PC, PC, Bailii
Scotland Act 1998 44(1)(c), Human Rights Act 1998 1
CitedStarrs and Chalmers and Bill of Advocattion for Procurator Fiscal, Linlithgow v Procurator Fiscal, Linlithgow and Hugh Latta Starrs and James Wilson Chalmers; Starrs v Ruxton, Ruxton v Starrs ScHC 11-Nov-1999
The system in Scotland whereby lesser judges were appointed by the executive, for a year at a time, and could be discharged without explanation or challenge, meant that they could be seen not to be independent, and the system was a breach of the . .

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Lists of cited by and citing cases may be incomplete.

Human Rights, Constitutional, Criminal Practice

Leading Case

Updated: 11 November 2021; Ref: scu.136166