Subj: UK: Chaos feared as Scottish judges are ruled illegal



Date: Nov 12th, 1999



Source: Times, The (UK)







Chaos feared as Scottish judges are ruled illegal

By Francis Gibb, Legal Editor, and Jason Allardyce



THE Scottish criminal justice system was in crisis yesterday 

after three High Court judges ruled that more than 100 

temporary judges are sitting illegally.



In a landmark ruling that also casts doubt on more than 

1,000 judicial appointments in England and Wales, the 

Scottish judges said that 129 temporary sheriffs were 

unlawfully hired under the European Convention on Human 

Rights.



The sheriffs are recruited for one-year posts by Scotland's 

chief prosecutor, a member of the executive, who can also 

remove them. They, therefore, cannot qualify as "impartial", 

Lords Cullen, Reid and Prosser ruled.



The ruling is expected to lead to widespread disruption in 

the Scottish criminal justice system, with delays and 

backlogs in the court and some problems in remand prisons.



It is also expected to prompt a spate of legal challenges by 

prisoners convicted before temporary sheriffs since May, 

when the European Convention took effect, and by the 

sheriffs themselves, who have been laid off. The judges' 

decision is the first striking example of the power of the 

human rights law, now in effect in Scotland and Wales. But 

it could also have a serious knock-on effect in England when 

the Human Rights Act. 1998 takes effect next year.



It raises a question mark over more than 1,000 part-time or 

temporary judges who are appointed for limited periods by 

the Lord Chancellor, who is also a member of the executive. 

The judges ruled that the sheriffs - who hear 25 per cent of 

the criminal cases in Scotland - were unlawfully appointed 

because they are hired by the Lord Advocate, who is 

Scotland's chief prosecutor and, as its senior law officer. 

is also a member of the executive and of the parliament.



The role of the executive in hiring the temporary sheriffs 

created a conflict of interest and meant defendants were not 

guaranteed a fair and impartial tribunal. The unprecedented 

ruling was made after a challenge brought by lawyers for 

Iain Smith and Neil Robertson, two 18-year-old men charged 

with assault.



The two men lodged their challenge after the European 

Convention came into force pending their trial. No decision 

on an appeal, which would go to the Privy Council has yet 

been made.



John Scott, the chairman of the Edinburgh Bar Association 

and a prominent defence lawyer, last night warned that 

convicted drug dealers and violent criminals would walk free 

because of the clampdown on temporary sheriffs.



Mr Scott, who also chairs the Scottish Human Rights Centre, 

said: "I can think of cases and some clients still in jail 

with very little to occupy their time other than looking at 

how they can change what has happened to them."



Professor Robert Black, a professor of law at Edinburgh 

University and a former temporary sheriff, has given a 

warning that thousands of cases could now be appealed. The 

Scottish Executive said that it was unable to quantify at 

this stage how many convictions may be in question.