Practice and Procedure


PUBLISHED February 12, 2003

A devolution issue concerning the compatibility of a minuter's right to a fair trial with the structure and procedure of the Scottish district courts was resolved by a finding that there was no incompatibility.Reference to the Privy Council of a devolution issue raised by the minuter, ('K'), as to whether the trial of a criminal charge against him in Kilcaldy District Court would infringe his rights under Art.6 of the European Convention on Human Rights. K appeared before Kilcaldy District Court, charged with contravention of s.150(8) Criminal Procedure (Scotland) Act 1995. Following a decision in Starrs v Ruxton (2000) JC 208 which had held that courts presided over by a temporary sheriff were not independent and impartial tribunals for the purposes of Art.6(1), K sought leave to raise a devolution issue to the effect that, because of its constitution, the district court at Kirkcaldy was not an independent and impartial tribunal. On 13 December 1999 the issue was referred to the High Court of Justiciary. The High Court answered the referred questions unfavourably to K (see Procurator Fiscal (Kirkcaldy) v Christopher John Kelly 2000). In due course, three questions were referred to the Privy Council for determination: (i) whether the clerk of court to the district court at Kirkcaldy was in law part of the tribunal which constituted that court for the purposes of Art.6(1); (ii) whether private communications between the clerk of court and the justice of the peace were part of the trial then proceeding before the court; and (iii) if the clerk of court was not part of the tribunal, was the district court surrendering its independence in accepting advice from someone who was not part of the court? It was common ground that the central issue was whether a Scottish district court was an independent and impartial tribunal. If it was not then the Lord Advocate, acting by the Procurator Fiscal, had no power to prosecute anyone before it. The question was important because the district courts handled a substantial proportion of criminal business in Scotland. It was also important to magistrates' courts in England and Wales because the two systems were essentially similar.HELD: (1) Alleged violations of Art.6 had to be judged as questions of substance and not form. (2) The challenge to the independence and impartiality of the district court concerned the status and functions of the clerk of court. (3) Although a lay justice was likely to accept advice tendered by the clerk, he was not formally bound to do so and in practice an experienced justice would acquire a good working knowledge of the areas of law with which he commonly dealt. (4) His decision could be challenged by a case stated which represented the legal and factual conclusions of the justice. The legal conclusions might be reviewed on appeal and the high court had a wide power to correct miscarriages of justice. (5) The employed status of the clerk of court did not prevent the district court from complying with Art.6(1) and the Procurator Fiscal was entitled to proceed with the prosecution against the minuter. (6) The devolution issue which had been raised under Sch.6 para.1(d) Scotland Act 1998 had been resolved by a finding that it would not be incompatible with K's rights under the Convention for the complaint against him to proceed to trial in the district court at Kirkcaldy. (7) The liberal guidance given in Clarke v Kelly (2001) JC drawing attention to the general advisability of disclosing the effect of advice given privately by the clerk to the bench, should be refined at some future opportunity.Judgment for the Procurator Fiscal.

[2003] UKPC D1