The court was asked ‘whether the Lord Advocate has acted in a way which was incompatible with the rights of the accused under art 6(1) of the Convention to fair trial by ‘an independent and impartial tribunal’ within the meaning of that article.’ Under consideration was the office of Temporary Sheriff. Such temporary trial judges were appointed by the Secretary of State on the advice of the Lord Advocate, himself also a member of the Executive. They were appointed for one year at a time. There was a power to terminate (‘recall’) the appointment during its currency, but this power was scarcely used. The occasion for it did not arise because the temporary sheriffs depended on annual renewal. Although the appointment was renewable, and generally was renewed, there was no certainty that it would be.
Held: The arrangements were held to be inconsistent with the security of tenure necessary to guarantee the independence of the judges in question. The objective observer would see a real risk that the judge might be affected, consciously or unconsciously, by the control maintained by the Executive. The judge would be dependent upon the good regard of the Executive not only for renewal but also for the permanent appointment to which he might well aspire. The brevity of the term of appointment was therefore a critical part of the flaw in the system. The court set aside a conviction because the trial court was not an independent and impartial tribunal, having been presided over by a temporary judge.
Lord Reed said: ‘Conceptions of constitutional principles such as the independence of the judiciary, and of how those principles should be given effect in practice, change over time. Although the principle of judicial independence has found expression in similar language in Scotland and England since at least the late seventeenth century, conceptions of what it requires in substance – of what is necessary, or desirable, or feasible – have changed greatly since that time.’
Lord Justice-Clerk Cullen said that any temporal limit upon a judicial appointment raises a question about independence.
Lord Reed, Lord Justice-Clerk Cullen
[1999] ScotHC HCJ – 259, [2000] UKHRR 78, 2000 SLT 42, [2000] HRLR 191, 8 BHRC 1, 1999 GWD 37-1793, 1999 SCCR 1052, 2000 JC 208, 1999 SCCR 1052
Bailii
Scotland
Cited by:
Cited – Heald and Others v London Borough of Brent CA 20-Aug-2009
The court considered whether it was lawful for a local authority to outsource the decision making on homelessness reviews. The appellants said that it could not be contracted out, and that the agent employed lacked the necessary independence and was . .
Cited – Misick and Others v The Queen PC 25-Jun-2015
Turks and Caicos – The appellants, a former Chief Minister and others, faced a trial on charges of corruption. They objected that the Justice set to hear the case had insufficient security of tenure to guarantee independence, and that the same judge . .
Lists of cited by and citing cases may be incomplete.
Legal Professions, Human Rights, Constitutional
Leading Case
Updated: 02 November 2021; Ref: scu.279233
