Appeal Court, High Court of Justiciary, Scotland, November 1999
A temporary sheriff is a judicial office created by section 11 of the Sheriff Courts (Scotland) Act 1971. Temporary sheriffs act in all material respects in identical manner to a permanent sheriffs in terms of cases listed before them. The appointments, each for a term of one year, are dependent on the Lord Advocate, a member of the Scottish executive, also responsible for criminal prosecutions. Application was made by the defendants in a criminal trial that the post of temporary sheriff was not compatible with Article 6 (1) of the European Convention on Human Rights. The court emphasised that this decision was limited to the determination of criminal charges, and that different tribunals might achieve independence and impartiality in very different ways. The appointment for one year at the discretion of the Lord Advocate did not square with the appearance of independence, nor did the removal from office through ministerial policy rather than statute. A well informed observer would think that a temporary sheriff might be influenced by his hopes and fears as to his prospective advancement. The combination of a one-year appointment with liability either to recall or suspension or limited use is inconsistent with the requirement of independence. Security of tenure is one of the cornerstones of judicial independence, as the adequacy of judicial independence cannot appropriately be tested on the assumption that the executive will always behave with appropriate restraint. It is fundamental that human rights are no longer dependent solely on conventions which are not legally enforceable. It would be inconsistent with the whole approach of the Convention if the independence of the courts rested upon convention rather than law. The matter was remitted for retrial by a permanent sheriff.
Note: A full report may be found at [2000] UKHRR 78, and may usefully be contrasted with Clancy v Caird (4th April 2000, unreported) a decision of the Inner House in which a similar application in respect of temporary judges in the Court of Session was refused, the manner of their appointment being different. These decisions may have a bearing not merely on deputy chancellors but upon all who exercise part-time judicial or quasi-judicial office within the Church of England. Note also the suggestion that an employment tribunal may not be 'independent and impartial, for the purposes of Article 6 since its lay members are appointed and paid by the Secretary of State and their appointment may be determined by him with the consent of the Lord Chancellor. See Smith v Secretary of State for Trade and Industry (1999) Times, 15th October.
(2000) 5 Ecc LJ 489-490
