DAVID CAMERON MILLAR and PAUL STEWART and KERRY PAYNE and JOSEPH TRACEY and DAVID LEDGER MARSHALL v. PROCURATOR FISCAL, ELGIN and PROCURATOR FISCAL, DUNDEE and PROCURATOR FISCAL, STIRLING [2000] ScotHC 82 (3rd August, 2000)

Parties

Procedural Posture

Bill of Advocation and Bills of Suspension (criminal Appeal) / Appellate Judgment

Legal Issues

1. 1 Whether failure to object to trial before a temporary sheriff amounted to waiver of the right to an independent and impartial tribunal under Article 6(1) ECHR
2. 2 Whether convictions and sentences imposed by temporary sheriffs prior to the decision in Starrs v Ruxton should be treated as valid under the de facto judge doctrine
3. 3 Whether the lack of independence and impartiality of temporary sheriffs rendered proceedings fundamentally null at common law

Ratio Decidendi

The court held that, following the coming into force of the Scotland Act 1998, the complainers' legal representatives were deemed to know of the new rights under Article 6(1) ECHR and the unsettled legal position regarding temporary sheriffs. By failing to object at the appropriate time, the complainers tacitly and unequivocally waived their right to an independent and impartial tribunal. The de facto judge doctrine did not apply to cure the lack of independence and impartiality, as the issue was not a fundamental nullity in the court's constitution but a waivable Convention right. Accordingly, the Bills were refused.

Court Disposition

Bills of Advocation and Suspension refused; convictions and sentences stand.