Temp sheriffs immune after all

Contrary to what was previously thought, convictions by temporary sheriffs are protected from challenge by the saving provisions of the Human Rights Act.

This has now been decided by a powerful five-judge bench of the High Court of Justiciary in the cases of Dickson and McNaughton v HM Advocate [2007] HCJAC 65, 15 November 2007. The decision departs from, without expressly overruling, Starrs v Ruxton 2000 JC 208, which brought chaos to Scotland’s justice system in 1999 and resulted in scores of convictions being quashed.

Kenneth Dickson and and Iain McNaughton were both convicted by temporary sheriffs in March 1999, before the Scotland Act brought the Human Rights Act into force in Scotland. They argued that the Human Rights Act has retrospective effect; that the decision in Starrs, that temporary sheriffs do not constitute “independent and impartial tribunals” in terms of ECHR article 6 (1), applies equally before the in-force date of 20 May 1999; and that their convictions should be quashed.

One of the Crown submissions upheld by the Lord Justice General and Lord Macfadyen – with whom the other judges agreed – was that prosecutors bringing proceedings in front of temporary sheriffs were “acting so as to give effect to” the provisions of the Sheriff Courts (Scotland) Act 1971, s 11(6), which conferred on temporary sheriffs the whole jurisdiction and powers, civil and criminal, of permanent sheriffs. Accordingly the proceedings, even if in violation of Convention rights, were protected by the Human Rights Act 1998, s 6(2), and the Scotland Act 1998, s 57(3).

The submission based on s 11(6) of the 1971 Act was a new one which had not been considered by the High Court in Starrs, or by the Judicial Committee of the Privy Council in Millar v Dickson 2002 SC(PC) 30.

The five-judge bench also ruled that the Human Rights Act 1998 cannot be invoked in appeals against convictions dating from before the in-force date, applying the reasoning of the House of Lords in similar English cases; and that even if there was a common law right not to be tried by temporary sheriffs, that was overridden by the 1971 Act.

[Contributed]