The demise of the temporary sheriff

The temporary sheriff is a creature of statute.  The power to appoint temporary sheriffs was conferred on the Secretary of State for Scotland by s.11 (2) of the Sheriff Courts (Scotland) Act 1971 which states that: “Where as regards any sheriff – (a) a sheriff is by reason of illness or otherwise unable to perform his duty as sheriff, or (b) a vacancy occurs in the office of sheriff, or (c) for any other reason it appears to the Secretary of State expedient so to do in order to avoid delay in the administration of justice in that sheriffdom, the Secretary of State may appoint a person (to be known as a temporary sheriff) to act as a sheriff for the sheriffdom”.   

It was the intention of Parliament that such appointments be made to cope with the death or illness of a permanent sheriff, his annual vacations or a declinature of jurisdiction.  It was also to take account of a sudden but transient increase in the volume of business in a particular sheriff court.  What has happened since 1971 is a far cry from what was originally intended.  In 1980 there were some 26 temporary sheriffs.  In 1998 the number had increased to approximately 50.  By 1995 the number had increased to 120.  The zenith was subsequently reached with 134 temporary shrieval commissions being granted.  The dramatic increase was Treasury led.  Successive governments saw the use of a temporary sheriff as a more cost effective way to run the sheriff court system.  Temporary sheriffs could do the work of a permanent sheriff without enjoying the same rate of remuneration and without payment of any pension contribution.  A temporary sheriff was engaged on a day to day basis and, if necessary, an assignment could be cancelled at short notice without payment of any cancellation fee unless the temporary sheriff could certify that he had suffered a loss of other remunerative work.  It was seen as a flexible and economic way to put bodies on the judicial bench.  The appointment of a temporary sheriff was itself transient since, although s.11 (4) of the 1971 Act empowered the Secretary of State to grant a commission to a temporary sheriff until recalled (which did give the impression of some permanence) the convention developed of commissions being awarded annually and subject to review by the Lord Advocate.  The use of temporary sheriffs for the administration of justice in the sheriff courts did not end there.  The temporary sheriff has been used to sponsor the administration of justice in the Supreme Courts.  Following the retrial of Lord Emslie as Lord President of the Court of Session in 1989 the then Conservative Government introduced s.35 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 giving power to the Secretary of State, but in effect the Lord Advocate, to appoint temporary judges to avoid delays in the administration of justice in the High Court and in the Court of Session.  There have been as many as nine temporary judges, seven drawn from the ranks of sheriffs in Scotland.  It will not be difficult to follow that if seven sheriffs are away on High Court or Court of Session duty without, incidentally, an increase in salary, their duties in the sheriff court require to be undertaken by other sheriffs, namely temporary sheriffs.  This arrangement has provided very satisfactory and attractive for the Treasury since the services of a judge are obtained for the price of a temporary sheriff.  Lord Emslie would never have permitted the engagement of sheriffs as temporary judges, regarding it as something of a fraud on the public. 

The large scale use of temporary sheriffs is illustrated by the fact that in the year to 31st October 1999 temporary sheriffs sat for an aggregate of almost 6,300 days.  This is an alarming number and represents the workload of 30 permanent sheriffs.  Indeed some temporary sheriffs had the distinct air of permanence about them since several were sitting on a fill time basis.

The inevitable conclusion is that the use of the temporary sheriffs has gone for beyond what was envisaged in s.11 of the 1971 Act.  Temporary sheriffs have been “shoring up” the system doing approximately 25 per cent of the workload in the sheriff courts.  Successive administrations have been blinded by the economies of the temporary shrieval system.  We were well on the way to a privatised shrieval system flying full in the face of the doctrine of the independence of the judiciary in view of the nature of the appointment of the temporary sheriff and the lack of security of tenure. 

The principle of security of tenure is one which has troubled the Temporary Sheriffs’ Association for some considerable time.  Since 1993 the Council of the Association has regularly sought longer commissions for temporary sheriffs all to no avail.  One known reason for the administration not recommending the grant of longer commissions was the fear that it might open the door to the requirement to pay pensions to temporary sheriffs.  With hindsight it might well be seen as a case of penny wise, pound foolish. 

The lack of security of tenure was aggravated by the recent decision of the Lord Advocate, Lord Hardie, not to renew commissions of temporary sheriffs who had reached the age of 65 years although by statute, permanent sheriffs now appointed do not retire until the age of 70 years.  The aggravation was compounded by the fact that it was indicated to three temporary sheriffs that despite reaching the age of 65 years their commissions would be renewed.  The Lord Advocate’s policy and this discriminatory cull were described by one illustrious member of the legal profession as “an uncomfortable manifestation of power”.

The excessive use of the temporary sheriff came to an abrupt halt on 11 November 1999.  The judgment of the Appeal Court in Starrs and Chalmers v Ruxton which, at time of writing, has been briefly but swiftly reported in 1999 GWD 37-1793, concludes, that a temporary sheriff is not an “independent and impartial tribunal” within the meaning of Art.6(1) of the European Convention on Human Rights.  Lord Cullen at page 39 of his Opinion states “…appointment by the executive is consistent with independence only if it is supported by adequate guarantees that the appointed judge enjoys security of tenure.  It is clear that temporary sheriff are appointed in the expectation that they will hold office indefinitely, but the control which is exercised by means of the one year limit and the discretion exercised by the Lord Advocate detract from independence”.                

The judgment has sent a tidal wave through the system of administration of justice in Scotland affecting along the way accused persons, litigants, lawyers, witnesses, procurators fiscal, sheriff clerks, temporary sheriffs and sheriffs since temporary sheriffs will no longer undertake any new criminal or civil cases.  The judgment has also put the damper on the engagement of temporary judges.

There may be an appeal to the Judicial Committee of the Privy Council by the Lord Advocate but in the immediate term the judgment has major repercussions for the operation of both criminal and civil business in our sheriff courts.  Short term it will result in minor havoc in respect of the timetabling of all manner of business in the sheriff court.  Trials will require to be adjourned and adjourned again.  This will possibly give rise in the future to challenges that accused persons are not coming to trial within a reasonable time, in possible contravention of Art.6 of the Convention. Priority will require to be given to cases involving young or vulnerable individuals.  Priority will also require to be given to cases which might otherwise be time barred.  Many prosecutions will be abandoned by procurators fiscal, against the public interest.  In addition there will be major difficulties for witnesses who will find themselves trying to recall the facts of an incident of trial diet many, many months after the event.  There will no doubt be test cases following the Starrs/Chalmers judgment concerning procedural matters where a temporary sheriff was involved and where a temporary sheriff proceeded to conviction and sentence.  In the longer term, the structure of the shrieval system as we know it may require to be radically overhauled, resulting in more and more permanent sheriffs being appointed and being required to float from court to court rather than be entrenched in one court house or indeed within one sheriffdom. 

Those advising the Minister of Justice, Jim Wallace QC, on dealing with the crisis will require to sift through the opinions of Lords Cullen, Reed and Prosser to see if there is light at the end of the tunnel enabling the Scottish Executive to appoint temporary or part time sheriffs in some shape or form whilst fulfilling the criteria of independence of the judiciary and security of tenure.  An appeal to the Judicial Committee of the Privy Council is unlikely to alter the import of the Starrs/Chalmers judgment but it may give guidance to the Scottish Executive in finding a solution.  

Such a solution may be difficult and intricate to find given the portents of the judgment but, considering the observations of Lord Reed, certain criteria require to be addressed.  These include (a) manner of appointment; (b) term of office; (c) existence of guarantees against outside pressures and (d) the appearance of independence.

The Appeal Court did not appear to have a difficulty coming to the conclusion that the initial appointment of a temporary sheriff by the executive was “not inherently objectionable”.  The conclusion was that the present manner of appointment of temporary sheriffs did not point towards a lack of judicial independence.  There has, of course, been much talk about the establishment of a judicial appointments board to select judges and sheriffs thus removing the privilege from the Lord Advocate, introducing transparency into the process of selection, and also removing observations of patronage and cronyism which critics inevitably voice when appointments are made. 

However, taking a lead from s.95 of the Scotland Act 1998 which empowers the First Minister to appoint permanent sheriffs after consultation with the Lord President, there is nothing to prevent the Lord President having his own ad hoc committee drawn from sheriffs principal, sheriffs, senior members of the Faculty of Advocates and the inevitable lay-person who knows something about the operation of the sheriff court to advise on the appointment of temporary sheriffs.  Such individuals who appear regular in court and have their ears close to the ground are best placed to determine the best candidate.

On the issue of term of office, one factor is certain, bearing in mind the views expressed by the Appeal Court judges.  It will not be possible for the purpose of maintaining judicial independence, to grant a term of office to a temporary sheriff which is renewable.  Lord Reed at page 19 of his Opinion draws attention to the European Charter on the statute for judges: “Clearly, the existence of probationary periods or renewal requirements presents difficulties, if not dangers, from the angle of the independence and impartiality of the judge in question, who is hoping to be established in post or to have his or her contract renewed”.   

Observations have been made that in general the appointment of temporary judges and the appointment of judges for probationary periods is inconsistent with judicial independence.  Significantly, therefore, the Scottish Executive may require to exclude from the ranks of temporary sheriffs individuals who have aspirations to be permanent sheriffs.  Lord Reed at page 21 of his Opinion draws attention to the extra-judicial observations made by Kirby J. of the High Court of Australia: “But what of the lawyer who would welcome a permanent appointment? What of the problem of such a lawyer faced with the decision which might be very upsetting to government, unpopular with the media or disturbing to some powerful body with influence? Anecdotal stories soon spread about the ‘form’ of acting judges which may harm their changes of permanent appointment in a way that is unjust.  Such psychological pressures, however subtle, should not be imposed on decision-makers”.  The single conclusion must therefore be that temporary sheriffs will require to be appointed like permanent sheriffs ad vitam aut culpam. 

The third consideration relates to the existence of guarantees against outside pressures such as are available to permanent sheriffs in terms of s.12 of the 1971 Act which sets out an established procedure for the removal of a sheriff by reason of inability, neglect of duty or misbehaviour but which specifically excludes temporary sheriffs. It is made clear in no uncertain terms by Lord Reed at page 26 of his Opinion that “…a temporary sheriff does not, as a matter of law, enjoy anything which constitutes security of tenure in the normally accepted sense of that term”.  Accordingly, to have a pool of temporary sheriffs, provision will require to be made for an independent procedure for the removal of a temporary sheriff on the grounds stated above.  However, the position is not as simple as that since the security of tenure relates to a part-time resource which is expected to sit on the bench in the sheriff court for a suggested number of days each year.  Security of tenure, therefore will include allocation of work.  “Sidelining” or non-allocation of work effectively amounts to removal from office.  That would be incompatible with any provision for a temporary sheriff made in terms similar to s.12 of the 1971 Act.  A mechanism would therefore, require to be in place, independent of the executive, to call into question alleged non-allocation of work.  Careful consideration will also be required to be given to any request to be given to any request by the executive for a temporary sheriff to carry out a set number of days.  There could be no sanction for not carrying out a recognised number of days per annum for such sanction would be an unacceptable external pressure. 

The last criterion is the appearance of independence, the tribunal commanding public confidence.  This inspires notions and concepts of independence, integrity and impartiality.  Significantly, the Appeal Court held that the judicial oath is an insufficient guarantee to avoid a legitimate doubt about the avoidance of a conflict of interest illustrated by the fact that in terms of s.6 of the 1971 Act permanent sheriffs are not entitled to practise law.  The serious question, therefore, arises whether a part-time sheriff should not be in a similar position. 

The court did not accept that in the present appeal there was a legitimate doubt on the matter of impartiality or independence but the red flag was waving that if a temporary sheriff was to be involved in civil proceedings, some legislative safeguard required to be in place against a reasonable apprehension of bias.  The inevitable conclusion is that, unless or until there is some legislative safeguard, there might only be a future for the temporary sheriff in criminal matters. 

In summary, therefore, to appoint a pool of temporary sheriffs and to accord with the Starrs/Chalmers judgment, it is desirable but not necessary to alter the present system of appointment.  It will be obligatory to appoint temporary sheriffs ad vitam aut culpam.  A formal procedure for removal divorced from the executive will be required in respect of an allegation of inability, neglect of duty or misbehaviour.  A mechanism to challenge or investigate “sidelining” will need to be in place.  This, in turn, will require some indication of the minimum and maximum number of days it is expected that a temporary sheriff will occupy the judicial bench otherwise there will be the inevitable question of when is a part-time sheriff not a part-time sheriff? This will put a governor on an abuse of the part-time system.  Finally, there will be the requirement of a formal safeguard to secure the appearance of independence at least in relation to civil cases conducted by a temporary sheriff. 

But the dilemma for the Scottish Executive does not end there.  The permanent appointment of a temporary sheriff raises also the issues of payment of a commensurate salary in view of the permanency of the commission since the temporary sheriff is not being appointed to office on an ad hoc basis.  To pay other than commensurate salary would be inequitable and open to challenge.     

Further, the temporary sheriff receiving a commission ad vitam aut culpam may well be entitled to a pension contribution paid on a pro rata basis.  The UN Basic Principles on the Independence of the Judiciary makes reference not only to the term of office of a judge being secured by law but also adequate remuneration and pension. 

There will also be the requirement to pay fees to temporary sheriffs for additional work.  Presently temporary sheriffs are paid at half-rate for dealing with additional work such as preparing stated cases or written judgments. This meant that if it took two days to write a judgment the tempoarary sheriff received a fee equivalent to one court day.  If a permanent sheriff has a writing day to prepare a judgment (during the present crisis these will be a scarce as hens’ teeth) normal salary of course, is paid.  The new found status of a temporary sheriff may require him to be adequately and properly remunerated for additional work. 

The big attraction of the temporary shrieval system is its flexibility and cost effectiveness.  A new system can again be flexible to deal with illness, holidays and sudden increase in business but the cost effectiveness will disappear on an obligation to pay commensurate salary, pro rata pension and additional fees.  The sheriff courts fulfil an important and significant social duty handling the bulk of civil and criminal business in our courts.  That duty is not being presently fulfilled.  For years successive governments and those advising them have been obsessed by cost, blinkered to other considerations which the Starrs/Chalmers judgment has now brought to prominence.  There have long been accusations of anonymous advisers knowing the price of everything but the value of nothing.  There is no alternative but to grasp the nettle of expense and, instead, engage a greater number of “floating” permanent sheriffs and a small pool of temporary sheriffs who, on the basis of what I have said above, may require, at first, to be drawn from the ranks of retired solicitors or retired sheriffs.  If that is the course that has to be taken then it is imperative for the efficient and economic operation of the system that the assignments of floating sheriffs and temporary sheriffs are centrally controlled by a booking unit within the Scottish Executive Justice Department adequately staffed and remunerated.  If floating sheriffs fall under the control of sheriff clerks within a particular sheriffdom then they are “gobbled up” and effectively become resident sheriffs.        

Urgent and positive action is required by the Scottish Executive to arrest and improve the present situation in our sheriff courts.  There may be residual work for temporary sheriffs into the year 2000 but appointment is a separate issue outwith the scope of this article.  The temporary sheriff as presently recognised dies on 31 December 1999.  The demise will have nothing to do with any millennium virus. 

Jamie Gilmour has been a temporary sheriff since 1988 and secretary of the Temporary Sheriffs’ Association from 1993 to date.  Any views expressed in the article are personal and are not necessarily the views of any other member of the Temporary Sheriffs’ Association.

TEMPORARY SHERIFFS – ARTICLE 6(1) OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS

Hugh Latta Starrs and James Wilson Chalmers v PF Linlithgow

PF Linlithgow v Gary John Johnstone and David Michael Gunn

THE Crown Office have confirmed that following the decision of the Appeal Court in the above cases, full consideration is being given to the question of an appeal to the Judicial Committee of the Privy Council.

In the meantime, interim instructions have been issued to Procurators Fiscal that if a part heard trial has been set down to be continued before a temporary Sheriff, Procurators Fiscal should invite the court ex proprio motu to discharge the trial diet and fix a fresh diet of trial to proceed before a permanent Sheriff.

In respect of trials set down to commence before a temporary Sheriff, Procurators Fiscal are instructed to invite the temporary Sheriff to adjourn the trial diet in order that the trial may take place before a permanent Sheriff.  It is considered that it remains competent for temporary Sheriffs to deal with matters other than those which involve determination of the criminal charge and in other instances to discharge the trial diet and fix a new diet of trial. 

District Courts

The Lord Advocate also considers that the cases may have implications for prosecutions in the District Courts.  Specifically, he considers there are grounds for a view that the position of Justices who are also councillors might be affected by technical aspects of the decision.  Consequently, on November 19 1999, the Lord Advocate instructed Procurators Fiscal, as an interim precautionary measure, that they should not proceed with prosecutions before Justices who are also councillors.  The same action to be taken in respect of temporary Sheriffs is to be followed for these Justices. 

The Lord Advocate has said that this action is not intended in any way to call into question the integrity of those Justices.  It is an interim measure until a concluded view has been reached by the Lord Advocate and the Minister for Justice in the compatibility of courts presided over by such Justices with the European Convention on Human Rights.

Elish Angiolini
Head of Policy Group
Crown Office