Millar (David Cameron) v Dickson: The Case of the Impartial Sheriffs

Millar (David Cameron) v Dickson
[2001] H.R.L.R. 59
Privy Council (Scotland)

24 July 2001

Brief Summary:

The four appellants were sentenced for criminal offences by temporary sheriffs between May 20, 1999, and November 11, 1999.  A prior case, Starrs v. Ruxton 2000 J.C. 208, held that the temporary sheriffs were not impartial tribunals under Article 6 of the European Convention on Human Rights (ECHR) and the appellants in this case therefore appealed their convictions.  The High Court of Justiciary, which dismissed the appeals, held that the appellants had tacitly waived their right to a trial before an independent and impartial tribunal by failing to object to the qualification of the respective temporary sheriffs.  The Privy Council allowed the appeals, stating that there was no waiver because the outcome in Starrs was by no means obvious and the appellants in the instant case were entitled to an impartial tribunal under Article 6 just as the appellants in Starrs were.

 

The Facts:

The four appellants were the subjects of criminal proceedings before a temporary sheriff in Scotland between May 20, 1999, and November 11, 1999.  The appellants had been convicted of drug offences, assault, driving offences, or offensive weapons and assault offences and were sentenced to a term of imprisonment.

On May 20, 1999 the Human Rights Act came into force in Scotland (before it came into force in England) through section 44(1)(c) of the Scotland Act 1998, which meant that the Lord Advocate no longer had the power to do any act that was incompatible with any of the rights contained in the European Convention on Human Rights.  On November 11, 1999 judgment was given in  Starrs v. Ruxton 2000 J.C. 208, in which it was held that owing to their lack of security of tenure, temporary sheriffs were not an “independent and impartial tribunal” for the purposes of Article 6(1) of the ECHR. Relying on Starrs, the appellants appealed against their convictions and sentences to the High Court of Justiciary, which dismissed the appeals, holding that the appellants had tacitly waived their right to a trial before an independent and impartial tribunal by failing to object to the qualification of the respective temporary sheriffs. The appellants appealed. Opposing the appeals, the Solicitor-General argued that the decision in Starrs should be distinguished because the challenge to the position of the temporary sheriff in that case had been made at an early stage in the proceedings, thereby preventing the court from determining the crucial issue, namely the overall fairness of the proceedings. In the instant cases, it was submitted, the trials of the appellants had been fair in every respect. 

The Holding:

The Privy Council allowed the appeals because while there was nothing to suggest that the outcome of the appellants' cases would have been different had the relevant stages of the prosecutions been conducted before permanent instead of temporary sheriffs, the outcome of Starrs may not have been different if the challenge had come after the trial had concluded.   In short, the appellants had not explicitly and voluntarily waived their challenge to the partiality of the tribunal under Article 6 and no tacit waiver would be allowed. Moreover, even though the ECHR had been incorporated into Scottish law by the time of the appellants' trials, they could not be expected to assume that the temporary sheriffs were not impartial tribunals nor could they be expected to predict the holding of Starrs, which was announced after the appellants' convictions.  Accordingly, appellants had not waived their rights to an impartial tribunal and their Article 6 rights had been violated.

Villain?

 

The appellants are all convicted criminals and most were convicted of violent or drug-related crimes.  Despite the impartial tribunal, the court did not find that there was any reason to doubt the convictions in the instant case.  Villains, then.