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Millar v. Procurator Fiscal (Scotland)
Factual and Procedural Background
Between 20 May 1999 and 11 November 1999 four individuals—identified here as Appellant A, Appellant B, Appellant C and Appellant D—were prosecuted in The Sheriff Court for various drug, assault, driving and weapons offences. Each prosecution was conducted before a temporary sheriff. Sentences ranged from non-custodial penalties to terms of imprisonment. On 11 November 1999 the High Court ruled in Starrs v Ruxton that temporary sheriffs were not an “independent and impartial tribunal” as required by Article 6(1) of the European Convention on Human Rights (ECHR). Relying on that judgment, the four appellants contended that the Lord Advocate—now a member of The Executive—had acted ultra vires in continuing their prosecutions after 20 May 1999 (the date the Scotland Act 1998 subjected the Lord Advocate to Convention compliance). The High Court rejected the challenge in Millar v Dickson (2000) on the basis that the appellants had tacitly waived their Article 6(1) rights. Leave to appeal was granted, bringing the matter before the present court.
Legal Issues Presented
- Whether the Lord Advocate lacked power, by virtue of section 57(2) of the Scotland Act 1998, to prosecute the appellants before temporary sheriffs after 20 May 1999.
- Whether any such lack of power was cured because the appellants had tacitly, validly and unequivocally waived their Article 6(1) right to an independent and impartial tribunal.
- Whether section 57(3) of the Scotland Act, read with section 6(2)(b) of the Human Rights Act 1998, nevertheless rendered the prosecutions lawful.
Arguments of the Parties
Appellants' Arguments
- Section 57(2) removed the Lord Advocate’s power to act incompatibly with Convention rights; continuing the prosecutions before temporary sheriffs therefore rendered all subsequent steps null.
- The High Court’s finding of tacit waiver was unsound: the appellants’ solicitors lacked the factual knowledge needed for a voluntary and informed waiver, and no express waiver was ever given.
- Section 57(3) did not apply because prosecuting before temporary sheriffs was not an act taken to “give effect to” primary legislation governing appointments.
Respondent’s (Lord Advocate’s) Arguments
- Although Starrs established a structural defect, the appellants received fair trials in fact; the court should adopt a “global fairness” test.
- Any Article 6(1) right was tacitly waived when no plea in bar of trial was taken at the outset.
- Section 57(3) exempted the Lord Advocate because he was enforcing primary legislation (the Sheriff Courts Act 1971) that could not be interpreted compatibly with the Convention.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Starrs v Ruxton (2000 JC 208) | Temporary sheriffs are not an independent and impartial tribunal under Art 6(1). | Accepted as binding; forms the foundation of appellants’ case. |
| Millar v Dickson (2000 JC 648) | High Court’s earlier view that appellants had waived Article 6(1). | Overturned; waiver analysis found unsustainable. |
| Locabail v Bayfield Properties [2000] QB 451 | Objective test for apparent bias and obligation to disclose doubts. | Used to underscore importance of perceived independence. |
| Brown v Stott (2001 PC 43) | Convention rights may be balanced in certain contexts. | Respondent relied on “global fairness,” but court distinguished criminal-trial independence. |
| De Cubber v Belgium (1984) 7 EHRR 236 | Impartiality assessed both subjectively and objectively; appearances matter. | Cited to reject respondent’s “no actual bias” argument. |
| Håkansson & Sturesson v Sweden (1990) 13 EHRR 1 | Waiver must be unequivocal and consistent with public interest. | Supported conclusion that no valid waiver occurred. |
| Oberschlick v Austria (1991) 19 EHRR 389 | Need for informed, unequivocal waiver. | Reinforced requirement of full knowledge for waiver. |
| Pfeifer & Plankl v Austria (1992) 14 EHRR 692 | Effect of procedural context on validity of waiver. | Illustrated deficiencies in alleged tacit waiver. |
| Bulut v Austria (1996) 24 EHRR 84 | Failure to challenge impartiality may bar later complaint, but only if party was aware of grounds. | Demonstrated that silence alone is insufficient where knowledge is absent. |
| Findlay v United Kingdom (1997) 24 EHRR 221 | Independence requirement cannot be cured by later review. | Used to reject “fair overall” defence. |
| McGonnell v United Kingdom (2000) 30 EHRR 289 | Even slight doubt about independence violates Article 6(1). | Confirmed that structural defect alone suffices. |
| Deweer v Belgium (1980) 2 EHRR 439 | Waiver invalid if tainted by constraint. | Supported narrow view of permissible waiver. |
| Werner v Austria (1997) 26 EHRR 310 | Need for genuine procedural opportunity to object. | Distinguished current facts where opportunity existed but knowledge did not. |
Court's Reasoning and Analysis
Judge Bingham (delivering the leading opinion) held that:
- Lack of Power under section 57(2): Once temporary sheriffs were declared non-independent tribunals, the Lord Advocate possessed no power to continue prosecutions before them; any steps taken were ultra vires.
- No Assistance from section 57(3): Prosecuting before temporary sheriffs was not “giving effect” to the primary legislation that created the office. Appointment and prosecution were distinct functions; the exemption therefore did not apply.
- Waiver Rejected: Waiver demands a voluntary, informed and unequivocal election. The appellants and their solicitors lacked critical knowledge about the Lord Advocate’s control over one-year appointments and recall powers. Silence could not amount to an informed waiver.
- Fair-Trial Argument Invalid: Independence and impartiality are fundamental; once absent, later assertions of “no actual prejudice” or “overall fairness” cannot cure the defect (supported by Findlay and McGonnell).
Judges Nicholls, Hope, Clyde and Scott delivered concurring opinions emphasising the constitutional centrality of judicial independence and the impossibility of curing a structural defect through hindsight or appeal.
Holding and Implications
APPEALS ALLOWED. All four cases are remitted to The High Court for determinations as to disposal; existing convictions and sentences are set aside pending that court’s orders.
Implications: The ruling confirms that prosecutions conducted before temporary sheriffs after 20 May 1999 were unlawful unless the accused gave an express, informed waiver. It underscores that structural judicial independence is an irreducible element of a fair criminal trial and cannot be offset by arguments of practical fairness. No new precedent was created, but the judgment applies Starrs uniformly and clarifies the narrow scope of waiver under Article 6(1).
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