Temporary sheriffs: what were we worried about?

Over eight years ago, on the 11^th November 1999, the appeal court ruled that proceedings before temporary sheriffs were incompatible with article 6 of the European Convention on Human Rights – and, in turn, with the Scotland Act 1998 (Starrs v Ruxton 2000 JC 208). The far-reaching consequences of that decision need not be rehearsed here.

The issue rumbles on, however, and last Thursday, yet another decision on temporary sheriffs was issued by the appeal court. The case is Dickson v HM Advocate; McNaughton v HM Advocate [2007] HCJAC 65, a decision of a Full Bench. Dickson and McNaughton were both convicted following proceedings before temporary sheriffs in 1999, but before the Scotland Act 1998 came into force.

Instead of relying on that statute, they advanced two arguments. These were, first, that the Human Rights Act 1998 should be given retrospective effect (a proposition already rejected in the English courts, but on which some doubt has been cast since) and secondly, that the proceedings against them were vitiated because of the common law requirement of independence and impartiality.

Both of these arguments are rejected in the leading opinion of the Lord Justice-General, and his treatment of the first raises some interesting questions about the proper approach of the Scottish courts to decisions of the House of Lords as precedent.

More significant, however, is the alternative reason the court offers for refusing the appeals, which is set out in Lord Macfadyen’s opinion. Under section 6(2) of the Human Rights Act 1998, the general rule that it is “unlawful for a public authority to act in a way which is incompatible with a Convention right” does not apply if the authority “could not have acted differently” because of primary legislation (section 6(2)(a)), or if the authority was “acting so as to give effect to or enforce” primary legislation which was incompatible with the Convention and could not be read so as to make it compatible (section 6(2)(b)).

Where one of these two “defences” is available, the rule that the Lord Advocate has no power to do an act incompatible with Convention rights is also disapplied (section 57(3) of the Scotland Act 1998).

An argument based on section 6(2)(a) failed in Starrs v Ruxton, on the basis that there was no piece of primary legislation which required the procurator fiscal to proceed with the trial in that case. Subsequently, an argument based on section 6(2)(b) failed in Millar v Dickson 2002 SC (PC) 30, where Lord Clyde (at para 84) said it was “too strained a construction… to say that proceeding with a case before a temporary sheriff is giving effect to the power to appoint temporary sheriffs”.

But, according to Lord Macfadyen, the problem was simply that the Crown advanced the wrong argument each time. Proceeding before a temporary sheriff was “giving effect” to the statutory provision conferring criminal jurisdiction on such sheriffs (not the provisions regarding their appointment, which had been founded on in Millar v Dickson). Accordingly, such proceedings were not unlawful in terms of section 6 of the Human Rights Act 1998.

And that, in turn, must mean that proceeding before temporary sheriffs was never actually outwith the Lord Advocate's powers in terms of section 57 of the Scotland Act 1998. The logic of this position is attractive – but it does seem to mean that much of Starrs v Ruxton onwards was a fuss about nothing. (This doesn't mean, of course, that temporary sheriffs were actually compatible with the ECHR, only that the changes necessitated by the Convention could have been brought about in a much more orderly fashion.)

Oops.