Chamber
Plenary, 11 Nov 1999
11 Nov 1999 · S1 · Plenary
Item of business
Temporary Sheriffs
I wish to make a statement about the decision issued this morning by the justiciary appeal court in Edinburgh.
During a criminal trial in Linlithgow sheriff court this year, counsel for the defence challenged the right of the procurator fiscal to take a prosecution before temporary sheriff David Crowe on the ground that the temporary sheriff was not an "independent and impartial tribunal" within the meaning of article 6.1 of the European convention of human rights. The matter was referred to the justiciary appeal court for consideration.
The opinions of Lords Cullen, Prosser and Reed were issued this morning. Each was agreed that the conditions under which temporary sheriffs are reappointed and can be removed are not compatible with the terms of article 6.1. In the cases which they had before them, their lordships ruled that the temporary sheriff should discharge the trial and remit the case to be heard afresh by a permanent sheriff.
Two of the opinions are lengthy and we will need time to give them the full consideration they require. On a first reading, however, the main area of concern relates to the lack of security of tenure enjoyed by temporary sheriffs whose commissions are subject to annual review. The court was also concerned about the legislative provision under which the commission of a temporary sheriff can be recalled at any time by ministers.
The court was at pains to point out that it saw no objection in principle to the Executive recommending appointments. Lord Reed observed that
"The manner of appointment of temporary sheriffs does not point towards any lack of judicial independence."
Nor did the court suggest that ministers had been anything other than scrupulous in the operation of the temporary sheriff system. Equally, the court offered no criticism of the conduct of temporary sheriffs in carrying out their duties on the bench. The concern of the court was essentially with the lack of any institutional safeguards as to the security of tenure of a temporary sheriff and the perception that a temporary sheriff could be influenced by the fact that his commission required to be renewed annually.
It was in 1966 that the United Kingdom granted the right of individual petition to the European Court of Human Rights in Strasbourg. Since that date, individuals have had the possibility of redress where they believe that their convention rights have been infringed. The system of temporary sheriffs has operated since 1971. No case has been taken to Strasbourg since then and successive Administrations have used temporary sheriffs to a greater or lesser degree to assist in the efficient operation of the sheriff courts.
The decision that was announced this morning will require careful consideration. Pending detailed consideration of the judgment, I have asked the justice department to suspend the availability of temporary sheriffs for new civil or criminal business. The Lord Advocate will wish to consider the implications for the Procurator Fiscal Service, which prosecutes cases in the sheriff courts. He will issue guidance on this matter later today. One option the Lord Advocate will look at urgently is whether there should be an appeal to the Judicial Committee of the Privy Council. A decision on that matter will be taken as soon as possible. Leave to take such an appeal was granted by the High Court this morning.
I turn now to the immediate impact on the sheriff court programme. Responsibility for allocating individual sheriffs to cases rests with the sheriff principal of the sheriffdom. The sheriffs principal have already put in place a certain amount of contingency planning against the possibility that the appeal court decision might result in a change in the way temporary sheriffs can be used.
I understand that sheriffs principal, assisted by the staff of the Scottish Court Service, have established a process for prioritising cases before the courts to ensure that the most urgent business can proceed. For example, cases involving criminal trials which might otherwise have run into difficulty over statutory time limits, and cases involving children and other vulnerable people, can expect to be given priority. I have every confidence that the sheriffs principal and the court staff will make strenuous efforts to minimise disruption. The precise arrangements will need to take account of local circumstances.
The Scottish Executive has already taken steps to increase the number of permanent sheriffs available to the sheriff courts. Advertisements for 10 new permanent posts were placed a short time ago and applications have been received. In the next few weeks, names will be put forward to Her Majesty for appointment and we expect the new sheriffs to be operating from around the turn of the year. These new "floating" sheriffs will be used according to need throughout Scotland's sheriff courts.
The Scottish Executive will consider whether the
implications of the High Court judgment point to any need for further strengthening of the complement of permanent sheriffs, which currently stands at 108. I shall make a further statement on that matter when we have had an opportunity to consider the judgments in full.
The position of temporary judges in the Court of Session will also need to be addressed in the light of the decision. Like all other parts of the system, the supreme courts are considering the legal and practical effects of today's ruling.
During a criminal trial in Linlithgow sheriff court this year, counsel for the defence challenged the right of the procurator fiscal to take a prosecution before temporary sheriff David Crowe on the ground that the temporary sheriff was not an "independent and impartial tribunal" within the meaning of article 6.1 of the European convention of human rights. The matter was referred to the justiciary appeal court for consideration.
The opinions of Lords Cullen, Prosser and Reed were issued this morning. Each was agreed that the conditions under which temporary sheriffs are reappointed and can be removed are not compatible with the terms of article 6.1. In the cases which they had before them, their lordships ruled that the temporary sheriff should discharge the trial and remit the case to be heard afresh by a permanent sheriff.
Two of the opinions are lengthy and we will need time to give them the full consideration they require. On a first reading, however, the main area of concern relates to the lack of security of tenure enjoyed by temporary sheriffs whose commissions are subject to annual review. The court was also concerned about the legislative provision under which the commission of a temporary sheriff can be recalled at any time by ministers.
The court was at pains to point out that it saw no objection in principle to the Executive recommending appointments. Lord Reed observed that
"The manner of appointment of temporary sheriffs does not point towards any lack of judicial independence."
Nor did the court suggest that ministers had been anything other than scrupulous in the operation of the temporary sheriff system. Equally, the court offered no criticism of the conduct of temporary sheriffs in carrying out their duties on the bench. The concern of the court was essentially with the lack of any institutional safeguards as to the security of tenure of a temporary sheriff and the perception that a temporary sheriff could be influenced by the fact that his commission required to be renewed annually.
It was in 1966 that the United Kingdom granted the right of individual petition to the European Court of Human Rights in Strasbourg. Since that date, individuals have had the possibility of redress where they believe that their convention rights have been infringed. The system of temporary sheriffs has operated since 1971. No case has been taken to Strasbourg since then and successive Administrations have used temporary sheriffs to a greater or lesser degree to assist in the efficient operation of the sheriff courts.
The decision that was announced this morning will require careful consideration. Pending detailed consideration of the judgment, I have asked the justice department to suspend the availability of temporary sheriffs for new civil or criminal business. The Lord Advocate will wish to consider the implications for the Procurator Fiscal Service, which prosecutes cases in the sheriff courts. He will issue guidance on this matter later today. One option the Lord Advocate will look at urgently is whether there should be an appeal to the Judicial Committee of the Privy Council. A decision on that matter will be taken as soon as possible. Leave to take such an appeal was granted by the High Court this morning.
I turn now to the immediate impact on the sheriff court programme. Responsibility for allocating individual sheriffs to cases rests with the sheriff principal of the sheriffdom. The sheriffs principal have already put in place a certain amount of contingency planning against the possibility that the appeal court decision might result in a change in the way temporary sheriffs can be used.
I understand that sheriffs principal, assisted by the staff of the Scottish Court Service, have established a process for prioritising cases before the courts to ensure that the most urgent business can proceed. For example, cases involving criminal trials which might otherwise have run into difficulty over statutory time limits, and cases involving children and other vulnerable people, can expect to be given priority. I have every confidence that the sheriffs principal and the court staff will make strenuous efforts to minimise disruption. The precise arrangements will need to take account of local circumstances.
The Scottish Executive has already taken steps to increase the number of permanent sheriffs available to the sheriff courts. Advertisements for 10 new permanent posts were placed a short time ago and applications have been received. In the next few weeks, names will be put forward to Her Majesty for appointment and we expect the new sheriffs to be operating from around the turn of the year. These new "floating" sheriffs will be used according to need throughout Scotland's sheriff courts.
The Scottish Executive will consider whether the
implications of the High Court judgment point to any need for further strengthening of the complement of permanent sheriffs, which currently stands at 108. I shall make a further statement on that matter when we have had an opportunity to consider the judgments in full.
The position of temporary judges in the Court of Session will also need to be addressed in the light of the decision. Like all other parts of the system, the supreme courts are considering the legal and practical effects of today's ruling.
In the same item of business
The Presiding Officer (Sir David Steel):
NPA
Following this morning's court decision, I now call Jim Wallace to make a statement on temporary sheriffs.
The Deputy First Minister and Minister for Justice (Mr Jim Wallace):
LD
I wish to make a statement about the decision issued this morning by the justiciary appeal court in Edinburgh. During a criminal trial in Linlithgow sheriff ...
Roseanna Cunningham (Perth) (SNP):
SNP
The decision clearly has enormous practical implications for Scottish justice, some of which the minister has dealt with in his statement. He mentioned tempo...
Mr Wallace:
LD
I agree with Ms Cunningham that the judgment has important practical implications for the administration of justice in Scotland. I note what she says about t...
David McLetchie (Lothians) (Con):
Con
I thank the minister for making available a copy of his statement for our analysis in advance of his announcement to the Parliament. I have perhaps been some...
The Deputy Presiding Officer (Mr George Reid):
SNP
Although the chair has not previously restricted the number of questions, that was quite a run, Mr McLetchie.
Mr Wallace:
LD
I thank Mr McLetchie for his welcome for this statement. It is a good example of how devolution can work: a decision can be made in the courts in the morning...
Donald Gorrie (Central Scotland) (LD):
LD
Will the minister examine the whole issue of temporary sheriffs? Society is increasingly being built on the policy of not giving people proper jobs, whether ...
Mr Wallace:
LD
I agree with Mr Gorrie that temporary sheriffs are indeed very worthy ladies and gentlemen. It is important to point out that their lordships did not accuse ...
Nicola Sturgeon (Glasgow) (SNP):
SNP
The minister will be aware that temporary sheriffs have frequently been appointed simply because they cost less than permanent sheriffs. In light of that, ha...
Mr Wallace:
LD
I cannot give the Parliament any accurate indication of the costs of today's decision. As I said in my statement, until we have fully considered the terms of...
Euan Robson (Roxburgh and Berwickshire) (LD):
LD
Does the Minister for Justice accept that it would be wrong to allow an undue backlog of civil cases to develop? There have already been concerns about the r...
Mr Wallace:
LD
Although we clearly do not want a huge backlog of cases to develop, the Parliament will agree that sheriffs principal should give a high priority to criminal...
Christine Grahame (South of Scotland) (SNP):
SNP
The minister will recall that, during the emergency debate on the legislation amending the Mental Health (Scotland) Act 1984, the SNP raised questions about ...
Mr Wallace:
LD
As Mrs Grahame has practised law, she will know that very often the most interesting and difficult legal cases are the ones that are not foreseen. If one cou...
Christine Grahame:
SNP
I thank the minister, but that reply is not satisfactory. Each of the High Court judges agreed—there was not one dissenting voice. I cannot understand how th...
Mr Wallace:
LD
I apologise if I did not pick up the precise point that Mrs Grahame was making about the amended mental health legislation. I am content that on the basis of...
Bruce Crawford (Mid Scotland and Fife) (SNP):
SNP
I come at this matter from the perspective of someone who was formerly active as a justice of the peace. In view of the ruling on temporary sheriffs and, in ...
Mr Wallace:
LD
Where particular cases are heard is a matter for the Lord Advocate. I understand that it is his position that charges will not be downgraded. As I said to Ms...
Michael Russell (South of Scotland) (SNP):
SNP
In the light of Mr Wallace's remarks about the inability to foresee things, it is my feeling that it is frequently not so much justice that is blind in Scotl...
Mr Wallace:
LD
I remind Mr Russell that it was not the appointments that the judges criticised, but the security of tenure. He is right, however, to point out that the part...
The Deputy Presiding Officer:
SNP
That concludes the questions and answers on temporary sheriffs.