Kearney v. Her Majesty's Advocate (High Court of Justiciary Scotland) [2006] UKPC D1 (6 February 2006)

ADVANCE COPY

Privy Council Appeal DRA No 1 of 2005

Arthur Kearney
	Appellant
v.

Her Majesty’s Advocate	Respondent

FROM

	THE HIGH COURT OF JUSTICIARY
SCOTLAND
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JUDGMENT OF THE LORDS OF THE JUDICIAL 
COMMITTEE OF THE PRIVY COUNCIL

Delivered the  6th February 2006 
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Present at the hearing:-

	Lord Bingham of Cornhill
	Lord Hope of Craighead
	Baroness Hale of Richmond
	Lord Carswell
	Lord Brown of Eaton-under-Heywood
		
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Lord Bingham of Cornhill
1.	On 10 July 2001 Mr R F Macdonald QC was appointed under section 35(3) of the Law Reform (Miscellaneous Provisions)(Scotland) Act 1990 to act as a temporary judge of the Court of Session on such occasions as the Lord President might from time to time direct.  His appointment was to subsist from 16 July 2001 until 15 July 2004.  In accordance with the subsection, as amended, the appointment was made by the Scottish Ministers after consulting the Lord President.

2.	During the three year period of his appointment Mr Macdonald presided at the trial of the appellant Mr Kearney, who was convicted by a jury of two charges as libelled and two more charges subject to deletions.  He was sentenced to ten years’ imprisonment.  He appealed against conviction on several grounds relating to the evidence at the trial and the judge’s directions on it.  Those grounds have yet to be considered and are not pertinent to the present appeal, which reaches the Board on one ground only, raising a devolution issue.  That issue is whether Mr Macdonald, as a temporary judge, was an independent and impartial tribunal within the meaning of article 6 of the European Convention on Human Rights.  The appellant contends that he was not, and that he (the appellant) was accordingly denied a fair trial, since a fair trial must be conducted by a tribunal which is independent and impartial and the Lord Advocate under section 57(2) of the Scotland Act 1998 had no power to conduct a prosecution before a tribunal lacking those qualities.  The Solicitor General for Scotland resists that contention, which was unanimously rejected by five judges sitting in the High Court of Justiciary.

3.	It is not suggested that Mr Macdonald was subject to any actual bias or prejudice of any kind against the appellant.  The complaint, based on the judgment of the European Court in Findlay v United Kingdom (1997) 24 EHRR 221, 244-245, para 73, is that he was not independent, having regard to the manner of his appointment, his term of office, the existence of guarantees against outside pressures and consideration whether he presented an appearance of independence.  As to impartiality, the charge is that he was not impartial from an objective viewpoint, since there were not sufficient guarantees to exclude any legitimate doubt in that respect.  The European Court acknowledged, as it has done in other cases, that the concepts of independence and impartiality are closely interlinked.  It is common ground in this appeal that the test of apparent bias is that formulated by my noble and learned friend Lord Hope of Craighead and adopted by the House of Lords in Porter v Magill [2002] 2 AC 357, paras 57, 59, 103, 131, 161: whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.

4.	Stripped to its bare essentials, the appellant’s charge rests solely on the hybrid role of the Lord Advocate as, under section 44(1)(c) of the Scotland Act 1998, a member of the Scottish Executive and also, as he has traditionally been, the public officer responsible for the conduct of criminal prosecutions in Scotland.  It is not, I think, in doubt that a person exercising judicial functions should not be placed in a position where his freedom to discharge those functions without fear or favour, affection or ill-will, might be or appear to be jeopardised by his relationship with the executive.  The question is whether that principle is infringed in the present case by Mr Macdonald’s relationship with the Lord Advocate as head of the Scottish prosecution service.

5.	I find nothing in the manner of Mr Macdonald’s appointment to suggest that the principle was infringed in any way.  As the head of the Scottish judiciary, with overall responsibility (no doubt in conjunction, in practice, with the Lord Justice-Clerk) for the handling and dispatch of business in the higher courts, it is the Lord President who first recognises and can best predict the need for temporary judges to supplement the permanent members of those courts.  Thus the evidence shows, as one would expect, that it is he who instigates the making of a temporary appointment and he who suggests the names of suitable appointees.  The process of appointment is not initiated by the Lord Advocate, as was the case with the temporary sheriffs whose position was ruled upon in Starrs v Ruxton 2000 JC 208: see p 215.  At the time of Mr Macdonald’s appointment in 2001, the Lord Advocate was consulted.  But nothing in the evidence suggests that he had a decisive voice, and the practice now is for the Lord Advocate to be informed but not consulted.  It could not be said in 2001 that the temporary judge obtained office by favour of the Lord Advocate, and it could not be said today.  The appointment itself is made, as already noted, by the Scottish Ministers, whose only duty under the subsection is to consult the Lord President.  As was accepted in Starrs v Ruxton, above, p 229, per the Lord Justice-Clerk (Cullen), there is nothing inherently objectionable in the appointment of judges by the executive, which is the practice in much of the world: it makes practical sense that judges should be appointed by the body which is thereafter responsible for paying them, accommodating them and servicing their professional requirements.

6.	Mr Macdonald’s warrant of appointment (which describes itself as an authorisation, but that is not the language of the statute), as already noted, provides that he shall act as a temporary judge on such occasions as the Lord President may from time to time direct.  Thus the employment and deployment of a temporary judge are subject to the control of the Lord President, not the Lord Advocate.  The Lord President no doubt directs sittings by temporary judges when the exigencies of the lists require it, and not when they do not.  There is nothing even arguably objectionable in this.

7.	The appellant contends that a temporary judge such as Mr Macdonald lacked the security of tenure which is a necessary feature of judicial office if it is to comply with article 6(1) of the Convention, since he was removable at any time.  I would accept that if Mr Macdonald was removable from office, at the behest of the Scottish Ministers, at any time and without good cause, that would weigh heavily and probably conclusively against recognition of his office as compliant with article 6.  But I cannot accept that he was so removable.  Paragraph 5 of Schedule 4 to the 1990 Act, governing the appointment of temporary judges, provides that they shall be appointed “for such period as the Scottish Minister may determine, but, [subject to the completion of unfinished business], no such appointment shall extend beyond the date on which the person reaches the age of 70 years”.  Thus a person may, depending no doubt on his personal circumstances and the predicted need for his services, be appointed until retirement age or for any shorter period.  But the appointee and the Scottish Ministers have each made a conditional commitment to the other for that period.  It would in my opinion be inconsistent with the statutory language to infer that the appointee may without good cause withdraw from his commitment within that period, or that the Scottish Ministers may do so.  The possibility of removal of a temporary judge for good cause, not fully considered in argument before the Board, does not throw doubt on the compliance of his office with article 6.  That article is not infringed by the possibility of removing a judge shown to be unfit to hold office.

8.	If the renewal of a temporary judge’s appointment on expiry of an existing term were to be made by, or were dependent on the approbation of, the Lord Advocate, there might be grounds for questioning his independence and apparent impartiality as the time for renewal approached.  If he had devoted considerable periods to judicial sittings during his period of appointment, a return to private practice could be difficult and unattractive.  He might be very anxious to obtain a permanent appointment, or at least a renewal of his existing temporary appointment.  The risk could arise, or appear to arise, that he would seek to commend himself to the prosecuting authority as the authority with power to meet his wishes.  I do not, however, think that the fair-minded, informed observer would suspect that to be the position.  Such an observer would be aware of the proud spirit of independence which traditionally animates members of the Scots bar; of the judicial oath taken by temporary judges; of the limited role of the trial judge in criminal proceedings; and of the power of appellate courts to correct irregularities at trial.  He would detect nothing in the conduct of hearings to suggest any lack of independence or impartiality.  If he were to probe further, any ground of suspicion would be dispelled, for he would find that the appraisal of a temporary judge’s performance as such is made by the Lord President and, perhaps, his judicial colleagues; that the proposal to renew is made by the Lord President; that the Lord Advocate is not consulted;  and that the re-appointment is made by the Scottish Ministers.  Thus a temporary judge seeking reappointment would wish to impress his judicial superiors, but would have no significant incentive to commend himself to the Lord Advocate.

9.	For the fuller reasons given by my noble and learned friend Lord Hope of Craighead, and these brief reasons of my own, I would dismiss this appeal and make the order which he proposes.

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Lord Hope of Craighead

10.	This is an appeal against the determination of a devolution issue by the High Court of Justiciary under paragraph 13(a) of Schedule 6 to the Scotland Act 1998.  It is the third of a trilogy of cases in which challenges have been made under article 6(1) of the European Convention on Human Rights to persons holding temporary appointments to the Scottish judiciary under enactments which were passed before the coming into the force of the Scotland Act 1998.  
  
11.	In Starrs v Ruxton; Ruxton v Starrs, 2000 JC 208, the High Court of Justiciary held that temporary sheriffs appointed under section 11 of the Sheriff Courts (Scotland) Act 1971 were not an independent and impartial tribunal within the meaning of article 6(1).  In Clancy v Caird, 2000 SC 441, an Extra Division of the Court of Session held that the employment of temporary judges in the Court of Session provided sufficient guarantees against any reasonable perception of lack of independence and impartiality.  It was satisfied that temporary judges sitting in that court meet the requirements of the article.  This case looks at the temporary judge from a different perspective.  The temporary judge whose independence and impartiality has been called into question on this occasion presided over a criminal trial which proceeded at the instance of the Lord Advocate in the High Court of Justiciary.

12.	The issue which the appeal raises is whether the act of the Lord Advocate in bringing criminal proceedings and seeking a conviction in that court before a person who was acting as a temporary Lord Commissioner of Justiciary under paragraph 8 of Schedule 4 to the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 was incompatible with the appellant’s right to a fair trial under article 6(1) of the Convention.  Section 57(2) of the Scotland Act 1998 provides:

“A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community Law.”

Section 44(1)(c) of the Act provides that the Lord Advocate is a member of the Scottish Executive.  Section 126(1) provides that the term “Convention rights” has the same meaning as in the Human Rights Act 1998.  The first sentence of article 6(1) states:

“In the determination of his civil rights and obligations and of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

13.	The appellant appeared for trial in the High Court of Justiciary sitting at Edinburgh on 22 April 2003.  He pleaded not guilty to all the charges against him.  The case proceeded to trial before Mr R F Macdonald QC, who was sitting as a temporary Lord Commissioner of Justiciary.  At the conclusion of the trial on 29 April 2003 he was convicted by the jury on four charges: one charge of assault to severe injury and to the danger of life, one charge of assault to injury and permanent disfigurement and two charges of assault to injury.  Following the jury’s verdict the advocate depute moved for sentence.  Mr Macdonald sentenced the appellant to a total of ten years imprisonment.

14.	Thereafter the appellant appealed against his conviction.  His note of appeal contained four grounds of appeal, the fourth of which was in these terms:

“4.  The trial took place before a temporary judge.  It is submitted that the temporary judge was not an independent and impartial tribunal.  It is understood that he was appointed by the Scottish Ministers.  The Lord Advocate is one of the Scottish Ministers.  Reference is made to section 44 of the Scotland Act 1998.  In the circumstances justice was neither done nor was it seen to be done.

Separatim.  Reference is made to the appellant’s right to a fair trial guaranteed by article 6(1) of the European Convention on Human Rights.  The appellant was entitled to  trial before an independent and impartial tribunal.  That right was denied to him.  The Lord Advocate’s act in calling the case, leading evidence and inviting the jury to convict were all acts within the meaning of section 57(2) of the Scotland Act 1998.  These acts were ultra vires since they were incompatible with the appellant’s right to a fair trial.  Reference is made to the preceding paragraph.

Accordingly there has been a miscarriage of justice.”

15.	The appellant also lodged a devolution minute which referred to the grounds of appeal and added:

“Separatim.  For the Lord Advocate to seek to support the convictions would be for him to act in a way which would be incompatible with the Minuter’s rights under article 6(1) of the Convention and accordingly ultra vires.”

16.	The appeal was a heard by a court of five judges in the High Court of Justiciary (Lords Kirkwood, Hamilton and Macfadyen, Lady Cosgrove and Lord Philip).  At that hearing submissions were restricted to the devolution issue which had been raised by the fourth ground of appeal.  On 17 December 2004 the court refused the fourth ground of appeal and continued the remaining grounds of appeal for determination by a court of three judges.  Although the decision had the authority of a court of five judges, the Board decided that the case raised issues of general public importance.  It gave leave to appeal to the Judicial Committee under para 13 of Schedule 6 to the Scotland Act 1998 against the court’s determination of the devolution issue.

The Convention right

17.	This is the first case to come before the Judicial Committee on the question whether the bringing of proceedings before a person who holds a temporary appointment to the judiciary is compatible with the right to an independent and impartial judge guaranteed by article 6(1).  It may be helpful therefore if I were to begin by identifying the approach which the Strasbourg court has adopted in cases of this kind before seeking to apply the principles to the facts of this case.

18.	In Findlay v United Kingdom (1997) 24 EHRR 221 the European Court held that there was an objective justification for doubts about the independence and impartiality of the members of a court-martial.  The court introduced its discussion of the issue with these comments in para 73:
“The court recalls that in order to establish whether a tribunal can be considered as ‘independent’, regard must be had inter alia to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence.

As to the question of ‘impartiality’, there are two aspects to this requirement.  First, the tribunal must be subjectively free of personal prejudice or bias.  Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect.

The concepts of independence and objective impartiality are closely linked and the Court will consider them together as they relate to the present case.”

In making these observations the court was following a consistent line of previous decisions to the same effect.  The factors to be examined in determining whether a body can be considered impartial were analysed in the same terms in Campbell and Fell v United Kingdom (1984) 7 EHRR 165, para 78.  In Piersack v Belgium (1982) 5 EHRR 169, para 30 it was emphasised that it was not possible to approach the issue from the subjective viewpoint only and that an objective approach was also needed in determining whether the tribunal offered guarantees sufficient to exclude any legitimate doubt about its impartiality. 

19.	In para 30 of its decision in Piersack v Belgium (1982) 5 EHRR 169 the court said that even appearances may be of importance to maintain the confidence which the courts must inspire in the public in a democratic society, and that account must be taken of questions of internal organisation.  The court returned to this point in Findlay v United Kingdom (1997) 24 EHRR 221, para 76.  The features of the court-martial system which it saw as undermining these concepts from the objective viewpoint in that case were that all members of the court were subordinate in rank to the convening officer and fell within his chain of command, that the convening officer also acted as confirming officer and that he had the power to vary the sentences as he saw fit.  The involvement of the judge advocate and the oath taken by the members of the court-martial board were not sufficient to remedy these defects: para 78.  Nor could they be corrected by any subsequent review proceedings, because a person who was accused of criminal charges was entitled to a first instance tribunal which fully met the requirements of article 6(1): para 79.  

20.	In Piersack v Belgium (1982) 5 EHRR 169, para 31 the court held that the requirements of article 6(1) were not met because it was capable of appearing to be open to doubt whether a sitting of the Brabant Assize Court was impartial.  It had been presided over by judge who, when senior deputy procureur, had been in charge of the department which decided to prosecute the applicant.   In Bryan v United Kingdom (1996) 21 EHRR 342 the court had to consider the position of an inspector who had the right to determine a planning appeal in which the policies of the appointing minister might be in issue.  It held that the fact that his appointment could be revoked by the minister at any time gave rise to a question as to his independence and impartiality.  In Zand v Austria, application no 7360/76, 12 October 1978, on the other hand, the Commission noted that, while the minister had a discretion to abolish the labour courts according to need, the way that concept was understood seemed to exclude arbitrary decisions by the minister and there was no evidence to show that the labour courts’ independence was generally affected or that any improper motives had been at the basis of the appointment of the presiding judge.  In Campbell and Fell v United Kingdom (1984) 7 EHRR 165 the court noted that members of the Board of Visitors were appointed for relatively short periods by the Home Secretary and that they were subject to removal by him.  But it held that this was outweighed by the facts that they were in practice irremoveable and acted independently in their adjudicatory functions, and that there was no appearance of a lack of impartiality in the organisation of the adjudication process.
 
21.	The court returned to these issues in Mežnarić v Croatia, application no 71615/01, 15 July 2005.  In para 29 it said:

“According to the court’s consistent case-law, the existence of impartiality for the purposes of article 6(1) must be determined according to a subjective test where regard must be had to the personal conviction and behaviour of a particular judge, that is, whether the judge held any personal prejudice or bias in a given case; and also according to an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (see, inter alia, Fey v Austria, judgment of 24 February 1993, Series A no 255, p 12, paras 27, 28 and 30;  Wettstein v Switzerland, no 33958/96, para 42, ECHR 2000-XII).  It must be decided in each individual case whether the relationship in question is of such a nature and degree as to indicate a lack of impartiality on the part of the tribunal (see Pullar v United Kingdom, judgment of 10 June 1996, Reports of Judgments and Decisions 1996-III, p 794, para 38).”

In paras 31-32 the court reminded itself, as to the objective test, that it must be determined whether there are ascertainable facts which may raise doubts as to the judge’s impartiality, that appearances may be important and that what is at stake is the confidence which the courts must inspire in the public in a democratic society.  The problem in that case was that one of the judges had represented the applicant’s opponents at an earlier stage in the proceedings and that his daughter continued to do so: para 34.  Although the judge’s previous involvement was minor and remote and his daughter had ceased to represent the applicant’s opponents before the Supreme Court gave its decision, these facts created a situation which was capable of raising legitimate doubts as the judge’s impartiality: para 35.

22.	It can be seen from this brief review that the principles by reference to which the issues of independence and impartiality must be judged are well settled.  I do not think that any advantage is to be gained by examining the facts in the other cases decided by the Strasbourg Court to which the Board was referred by the parties in their written cases.  That the principles are well settled is true also where the issue of apparent bias is raised in domestic law.  Furthermore, as Lord Bingham of Cornhill said in Davidson v Scottish Ministers (No 2), 2005 SC (HL) 7, 16, para 17, it is difficult, if not impossible, to lay down any hard edged rules to distinguish a case where apparent bias may be found from one where it may not.  Much will turn on the facts of the particular case.  The court must first ascertain all the circumstances which may have a bearing on the suggestion that the judge was biased.  It must then ask itself whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased: Porter v Magill [2001] UKHL 67, [2002] 2 AC 357, paras 102-103; Lawal v Northern Spirit Ltd [2003] UKHL 35, [2004] 1 All ER 187, para 14.      

The appointment and use of temporary judges

23.	It is time now to identify the facts.  There is no suggestion in this case that there was anything about Mr Macdonald’s personal convictions or behaviour that raised doubts about his independence and impartiality.  It is not suggested that he said or did anything in his conduct of this or any other case when acting as a temporary judge that might give rise in the slightest way to the possibility that he was biased.  His experience of Scots criminal law and procedure and his competence to conduct the trials over which he has presided are not in doubt.  Miss Scott accepted too that there were no grounds for doubting the independence and impartiality of the sheriffs and sheriffs principal or other judicial officers, serving and retired, who have been appointed as temporary judges.  It is the system – the internal organisation, as it was put in Piersack v Belgium (1982) 5 EHRR 169, para 30 – not the conduct of the individual judge that is under scrutiny.  Does the system which enables members of the Bar, who do not have the security of tenure which permanent sheriffs and sheriffs principal enjoy, to sit as temporary judges in the High Court of Justiciary offer sufficient guarantees as to their independence and their impartiality?                 

24.	The use of temporary judges in the Supreme Courts in Scotland was not contemplated until the latter part of the 20th Century.  Until then all the judges who sat in the Court of Session and the High Court of Justiciary held permanent appointments.  They held office ad vitam aut culpam by virtue of article 13 of the Claim of Right 1698, cap 28, subject only to a compulsory retirement age that comparatively recently was laid down by statute: see the Judicial Pensions Act 1959, section 2, which introduced a retirement age of 75, and the Judicial Pensions and Retirement Act 1993, section 26, which reduced the retirement age to 70.  The collegiate nature of these institutions as a bench of full-time, permanent judges was strong and obvious.  It was enhanced by the robes which these judges wear, which distinguish them at a glance from all other members of the Scottish judiciary except the Chairman of the Scottish Land Court, who has the same status and tenure as if he had been appointed a judge of the Court of Session (see section 1(3) of the Scottish Land Court Act 1993), from practising members of the Faculty of Advocates and from solicitor advocates.

25.	The first departure from the practice of employing only permanent judges in these courts was introduced by section 22 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 when Lord Emslie was Lord President of the Court of Session and Lord Justice General.  The wording of this section is worth noting, as it was to serve as a point of reference five years later when the facility was widened to enable temporary judges to be used.  As amended by the Scotland Act 1998 (Consequential Modifications) (No 2) Order 1999 (SI 1999/1820), article 4 and Schedule 2, Part 1, para 36(2), which substituted for the words “the Secretary of State” the words “the Scottish Ministers”, subsections (1) to (3) of that section provide:
“(1) If it appears to the Lord President of the Court of Session that it is expedient as a temporary measure to make an appointment under this section in order to facilitate the disposal of business in the Court of Session or the High Court of Justiciary he may, with the consent of the Scottish Ministers, appoint a person who –
(a)	has held office as a judge of the Court of Session; or
(b)	has held office as a Lord of Appeal in Ordinary and who, at the time of his appointment as a Lord of Appeal in Ordinary, was eligible for appointment as a judge in the Court of Session,
and, in either case, has not reached the age of 75 years, to act as a judge of the Court of Session and High Court of Justiciary during such period or on such occasions as the Lord President thinks fit but, subject to subsection (4) below [which allows the judge to continue beyond 75 for the purpose of dealing with matters relating to a case which came before him while acting as a judge], a period during which or occasion on which a person may so act shall not extend beyond or be after he reaches the age of 75 years.

(2)  A person while acting under this section shall, subject to subsection (3) below, be treated for all purposes as, and accordingly may perform any of the functions of, a judge of the Court in which he is acting.

(3)  A person shall not, by virtue of subsection (2) above, be treated as a judge of the Court of Session or the High Court of Justiciary for the purposes of any statutory provision or rule of law relating to -
(a)	the appointment, retirement, removal or disqualification of judges of that Court (including, without prejudice to the foregoing generality, any statutory provision or rule of law relating to the number of judges who may be appointed);
(b)	the tenure of office and oaths to be taken by such judges;
(c)	the remuneration, allowances and pensions of such judges.” 

26.	In his annotations to this section in Current Law Statutes Professor J M Thomson said that it was envisaged that, should the power be exercised, the judges recalled to sit as retired judges would be used to provide temporary assistance in appellate cases.  He emphasised that the power was perceived as a temporary measure only, for use when the pressure of business in the Court of Session or the High Court of Justiciary was such that the Lord President considered an appointment desirable. 

27.	There is no doubt that section 22 of the 1985 Act would not have been enacted without the encouragement and support of Lord Emslie.  The pressure of business in these courts was becoming acute, but it was not easy to persuade the government that there should be an increase in the number of full time judges.  The use of retired judges introduced a measure of flexibility in planning how the compliment of full-time judges might best be used.  The section was carefully worded so as to leave their use entirely in the hands of the Lord President.  The innovation which it made on the nature of the court was scarcely perceptible.  Retired judges retain their judicial titles, and it was accepted from the outset that they were entitled to wear the same judicial robes when sitting as retired judges as they wore when they were sitting as permanent judges.  They had, of course, established their independence and impartiality by sitting as permanent judges for many years.  They had no prospect of any further advancement, as they had retired.  It has never been, nor could it ever be, suggested that their use either at the appellate level or at first instance was incompatible with article 6(1) of the Convention.

28.	But concern at the demands which increasing pressure on business was making on the courts was not removed by this innovation.  It led to the appointment by the Secretary of State in 1985 of a review body chaired by the Hon Lord Maxwell, a Senator of the College of Justice and then serving as Chairman of the Scottish Law Commission, to investigate the means by which judicial time in the Court of Session and the High Court of Justiciary might be organised more effectively.  In paras 8.20-8.21 of its report the review body noted that the flexibility which section 22 of the 1985 Act had introduced was very limited.  It fell well short of that which existed in England and Wales, where the Supreme Courts Act 1981 provided not only for the re-engagement of retired judges but also for the use of judges from an inferior court and members of the Bar on a temporary basis, and in the sheriff courts, where temporary sheriffs could be appointed under section 11 of the 1971 Act.  In paras 8.22-8.23 the possibility of appointing members of the Bar, sheriffs principal and sheriffs was discussed. In para 8.24 the review body set out its conclusions on this topic:

“As in England and Wales, we believe that there would be much to be gained in there being comprehensive powers to appoint temporary judges, providing that the Lord President of the day has a voice in the making of such appointments and the use to be made of them.  Legislation would be needed.  We recommend that this aspect should be reconsidered.”

29.	The use of the word “reconsidered” in this paragraph was quite deliberate.  It reflected the fact that Lord Emslie had already made it clear that he was firmly opposed to the appointment of temporary judges to sit in the Court of Session and the High Court of Justiciary.  It was of course obvious that, as temporary judges would not be installed as Senators of the College of Justice, they would not be robed as such when sitting in either court.  His opposition was not, I think, based on any doubts that he may have had about the independence and impartiality of the persons appointed to act as temporary judges.  His concern was for the quality of justice.  As he put it later in an interview which he gave to Bruce McKain, the Law Correspondent of The Herald newspaper, which was published on 26 October 1993, it seemed to him to be totally wrong that people whose cases were important enough to be dealt with in the Court of Session and the High Court of Justiciary should have to have their cases disposed of by people who were not proper judges selected to do the work.  In his view this was rather a fraud on the public.  It was, as he put it, a nasty, cheap solution to the problem caused by the increased workload.  He remained firmly opposed to this idea despite the review body’s recommendation.  It was not until he left office on 30 September 1989 and I succeeded him as Lord President that the necessary legislation was introduced.  I have to confess that I bear much of the responsibility for the way the system was introduced and for the way in which, before the coming into force of the Scotland Act 1998, it was operated.

30.	It was made very plain to me when I took office by the Lord Advocate that the Treasury would not agree to the making of further full time appointments unless I agreed to the use of temporary judges to ease the pressure of business.  It was pointed out that the pressure of business might turn out to be of a temporary nature only, and that if it were to disappear an increase in the number of permanent judges would be unnecessary.  The fact that temporary appointments were being resorted to in order to deal with the problem that this created in the supreme courts in England and Wales without any obvious objection had been noted by the government.  This made it hard to find a convincing answer to the argument that a similar system should be introduced in Scotland.  Also there was plainly a need for another full time appointment.  So, after consultation with me as to its terms, a provision for the appointment of temporary judges was included in the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.

31.	Section 35(3) of the 1990 Act, as amended by SI 1999/1820 which substituted for the words “the Secretary of State” the words “the Scottish Ministers”, provides:

“Notwithstanding any provision in any enactment, if it appears expedient to the Scottish Ministers they may, in accordance with the provisions of paragraphs 5 to 11 of [Schedule 4], and after consulting the Lord President, appoint persons to act as temporary judges of the Court of Session.” 

The relevant provisions of Schedule 4 are these:
“5.  Any person who is eligible under –
(a)	paragraph 1 above [appointment of sheriffs principal, sheriffs and solicitors as judges of the Court of Session]; or
(b)	any other enactment [see article XIX of the Act of Union 1707],
to appointment as a judge of the Court of Session may be appointed as a temporary judge under section 35(3) of this Act for such period as the Secretary of State may determine, but, subject to paragraph 9 below [which allows the judge to continue beyond the period for which he was appointed for the purpose of dealing with matters relating to a case which came before him while acting as a judge], no such appointment shall extend beyond the date on which the person reaches the age of 75 years.

6.  Subject to paragraph 7 below, a person appointed as a temporary judge under the said section 35(3) shall, while so acting, be treated for all purposes as, and accordingly may perform any of the functions of, a judge of the Court in which he is acting.

7.  Subject to paragraph 8 below, a person shall not, by virtue of paragraph 6 above, be treated as a judge of the Court of Session for the purposes of any other enactment or rule of law relating to -
(a)	the appointment, tenure of office, retirement, removal or disqualification of judges of that Court, including, without prejudice to the generality of the foregoing, any enactment or rule of law relating to the number of judges who may be appointed;
(b)	the remuneration, allowances or pensions of such judges.

8. A person appointed to be a temporary judge of the Court of Session shall, by virtue of such appointment, be a temporary Lord Commissioner of Justiciary in Scotland.”

32.	Despite the introduction of this legislation, strong objections were still being expressed to the use of temporary judges in any capacity, but especially in the High Court of Justiciary.  I sought to meet these objections as best I could by addressing the procedures that were to be followed for their appointment and for their use when holding these appointments.  A statement of procedures for their appointment was agreed between me and the Lord Advocate.  On 18 January 1991 I provided the Keeper of the Rolls with a memorandum instructing him how they were to be used.  The Keeper of the Rolls is one of the officers of the Court of Session appointed under section 23 of the Administration of Justice (Scotland) Act 1933.  He is required by the statute to perform his duties under the direction of the Lord President.  On 7 July 1992 I provided him with a revised memorandum in the light of the court’s experience of using temporary judges during the preceding 18 months.  The details of these procedures are now of historical interest only, as they are no longer being followed.  So it is not necessary to do more than summarise the main points, bearing in mind too that my concern was to do what I could to maintain the quality of justice.  The procedures for which I was responsible were not informed by an appreciation of what was needed to ensure compatibility with article 6(1) of the Convention.

33.	The system for the appointment of temporary judges which was laid down by the statute did not mention the Lord Advocate.  But in practice the Lord Advocate had always played a leading role in the making of judicial appointments in Scotland.  So it was understood from the outset that the Secretary of State would act on his advice when appointing persons to act as temporary judges.  It was for this reason that civil servants in the Scottish Courts Administration thought it advisable to agree the administrative procedures that were to be used for making these appointments.  The system that was devised was one which placed the responsibility for interviewing candidates and securing their agreement to serve on the Lord President after the names of possible candidates had been agreed with the Lord Advocate.  It was agreed that the making of arrangements for the use of their services when appointed was to be exclusively a matter for the Supreme Courts, although it was recognised that steps would have to be taken through the Scottish Courts Administration for the provision of temporary shrieval cover where a permanent sheriff was to be used as a temporary judge.  It was also agreed at the suggestion of the Lord Advocate that, to meet the requirements of para 5 of Schedule 4 to the 1990 Act about the determination of the period of the appointment, the duration of a commission to act as a temporary judge was to be for a period of three years.  A decision as to the renewal of an appointment was to be prompted by the Scottish Courts Administration and taken by the Lord Advocate after consultation with the Lord President.

34.	The use of temporary judges, as indicated by the memoranda that I issued to the Keeper of the Rolls, proceeded on the principle that temporary judges were not to be employed for business in either the Court of Session or the High Court of Justiciary except in the circumstances expressly permitted by these memoranda without the prior agreement of the Lord President.  So long as the number of temporary judges was small and they were employed relatively infrequently it was possible in this way to exercise a tight administrative control over their use.  The appointments that were made in the first round in April 1991 were confined to two sheriffs and two members of the Bar who did not hold any permanent judicial appointment.  

35.	The sheriffs who were appointed in this round were chosen because of their experience in the conduct of trials under the solemn procedure in the sheriff court, except those involving cases of murder, rape, terrorism or other very serious crimes which are prosecuted in the High Court of Justiciary.  Four more sheriffs with similar experience were appointed in the second round in October 1992.   The sheriffs were employed mainly for use in criminal trials in the High Court of Justiciary.  As the Maxwell review group had anticipated, sitting as a temporary judge was unattractive to members of the Bar in active practice.  Of the two members of the Bar who were appointed in this round, it was never possible in the case of one of them to find an occasion when he was available to sit.  The other was employed exclusively as a temporary judge in the Court of Session, but he was not permitted to sit on petitions for judicial review or to undertake various other items of work of a specialised nature mentioned in the memoranda.  At this stage no temporary judge was permitted to sit in an appellate capacity, as there were a sufficient number of retired judges to provide the flexibility that was needed at this level.  A careful note was taken of the number of days when it was found necessary to employ a temporary judge, with a view to using this information as evidence of the need for a further full time appointment.

36.	The detailed arrangements that were laid down at the outset had been departed from completely by July 2003 when Mr Macdonald was conducting the criminal trial which is in question in this case.  The numbers of those appointed to act as temporary judges had grown and the frequency with which those persons are engaged to sit had increased far beyond anything that had been contemplated in 1990 when the system was first introduced.  The close control over the use which had been devised at the outset was no longer practicable.  There had also been a fundamental change in the system of government following the coming into effect of the Scotland Act 1998.  Two features of the situation that now existed stand out above all the others.  In one respect the system was the same as it had always been.  The selection of persons to act as temporary judges remained for all practical purposes a matter for decision by the Lord President.  And it remained exclusively a matter for him to decide how the persons who were appointed were to be used in that capacity.  But in another respect the system was quite different.  The Lord Advocate had become by virtue of section 44(1)(c) of the Scotland Act 1998 a member of the Scottish Executive.  His responsibility for the conduct of prosecutions in his capacity as head of the system of criminal prosecution in Scotland remained unaffected: see section 48(5) of that Act.  But he no longer played any active part in the system for the making of appointments to the judiciary.

37.	The making of appointments to the judiciary is now in the hands of the Judicial Appointments Board.  This is a wholly independent non-statutory body on whose recommendation appointments to the office of Senator of the College of Justice are now made on the advice of the Scottish Ministers.  Proposals for a new system for making judicial appointments, based on the creation of an independent Judicial Appointments Board, were announced by the Justice Minister in March 2001: 2001 SLT (News) 101.  The Board commenced its work in June 2002: see www.judicialappointmentsscotland.gov.uk and 2003 SLT (News) 223.
  
38.	Mr Macdonald was appointed as a temporary judge in July 2001 before the Judicial Appointments Board had been set up and the Lord Advocate had withdrawn from the system for making appointments to the judiciary.  His was the first appointment as a temporary judge that was made after the coming into force of the Scotland Act 1998.  The initiative that led to his appointment was taken by Lord President Rodger.  He wrote to the Lord Advocate to inform him that he wished to have Mr Macdonald appointed as a temporary judge.  The Lord Advocate agreed to his appointment, and the Lord President then wrote to the relevant official in the Scottish Executive Justice Department (which had replaced the Scottish Courts Administration under the pre-devolution system) requesting that the commission should be issued as soon as possible.  The approval of the Deputy First Minister, who at that time was also the Minister for Justice in the Scottish Executive, was then obtained on behalf on the Scottish Ministers.  

39.	Subsequent changes in practice for the making of these appointments are, of course, not relevant in Mr Macdonald’s case.  But it should be noted that the practice now is for the Lord President to write in the first instance to the Minister of Justice recommending those whom he considers suitable for appointment as temporary judges.  His letter of recommendation has in some cases been copied to the Lord Advocate for his information.  A minute seeking the approval of the Justice Minister is prepared by an official in the Justice Department and copied as a matter of routine to the First Minister and the Lord Advocate.  The Lord Advocate does not usually respond to this minute.  The only occasions when he has done so are when Lord President Cullen wished to appoint a number of temporary judges to enable him to form a second Criminal Appeal Court to reduce waiting times in that court, and when after a moratorium had been placed on the appointment of new temporary judges pending a review of the system Lord President Cullen, after consultation with the Lord Advocate, sought the appointment as a temporary judge of Sir David Edward QC following his retirement as a judge of the European Court of Justice in Luxembourg.

40.	Following his initial appointment on 16 July 2001, which was for a period of three years to 15 July 2004, Mr Macdonald was reappointed on 13 July 2004 to act as a temporary judge for a further period of one year from 16 July 2004 to 15 July 2005.   Since that date he has been reappointed for a further period of three years from 16 July 2005 to 15 July 2008.  His reappointment for one year only in 2004 took place during a period when a number of other appointments were being made for one year only at the request of Lord President Cullen to release more full time judges from judicial work at first instance to deal with a backlog of work in the Criminal Appeal Court, and to allow the Justice Minister to review the need for further appointments in the light of a number of major reforms that were being made to the justice system.  Thereafter renewals were made for the usual three year term to enable the improvements which had been achieved to be maintained in the future.  The normal procedure for the renewal of these appointments is for the Lord President or his Private Secretary to write to the Justice Minister recommending the renewal of an expiring appointment.  The internal minute seeking the approval of the Justice Minister is copied to the Lord Advocate for his information only, and it is usually not responded to.

41.	Persons appointed to act as temporary judges are, of course, eligible for appointment as permanent judges of the Court of Session.  It has never been the practice in Scotland for a person to be required to act as a judge under a temporary appointment before being considered for a permanent appointment as a judge of that court.  No assurance is given by anybody to persons invited to accept an appointment as a temporary judge that service as a temporary judge will lead to a permanent appointment.  But in practice a number of persons appointed to act as temporary judges have subsequently been appointed as permanent judges of the Court of Session.  They include persons who were serving as sheriffs when they were acting as temporary judges as well as members of the Bar.   

42.	Temporary judges who hold permanent judicial appointments as sheriffs or as sheriffs principal receive no additional remuneration for their services.  Retired sheriffs and sheriffs principal and members of the Bar are remunerated for their services as temporary judges under para 10 of Schedule 4 to the 1990 Act at a daily rate which is related to the annual salary payable to an Outer House judge, increased annually in line with the recommendations of the Senior Salaries Review Body.  Mr Macdonald sat for a total of 143 days as a temporary judge in 2002.  In 2003 he sat for a total of 146 days.  In each of these two years he sat almost exclusively (97.8% in 2002, 86.4% in 2003) as a trial judge in the High Court of Justiciary.  During the period from 1 September 2002 to 31 August 2004 19.8% of the total number of first instance days in the High Court of Justiciary (961 days out of a total of 4857 days) were taken up by temporary judges.  During the same period temporary judges sat for 16.5% of the total number of civil days in the Outer House of the Court of Session (397 days out of a total of 2418 days).

Discussion

43.	 It has not been suggested that there was anything about Mr Macdonald’s words or conduct that gave rise to a suspicion that he lacked the qualities of independence and impartiality.  So the aspects of his service as a temporary judge on which it is necessary to concentrate are the systems which were in place for the making, renewal and termination of these appointments.  It is possible to narrow the issue still further.  The independence and impartiality of the sheriffs and sheriffs principal who act as temporary judges is not in question.  Their security of tenure as members of the permanent judiciary is unaffected by their appointment as temporary judges, as also is the remuneration which they receive.  The difference between their position and that of Mr Macdonald in these respects is quite striking.  Unlike the sheriffs and sheriffs principal who have been appointed as temporary judges, Mr Macdonald did not in July 2003 hold and still does not hold any permanent judicial appointment.  It is no exaggeration to say that he is largely, if not wholly, dependent on the remuneration which he receives as a temporary judge.  The period of his appointment is limited to the period referred to in his commission.  In July 2003 it was due to expire on 15 July 2004.  It would obviously be a serious matter for him if a decision were to be taken for whatever reason not to renew his appointment.  But these circumstances do not in themselves, looking at the matter objectively, indicate a lack of independence or of impartiality on his part.

44.	The key to a consideration of the qualities of independence and impartiality in the conduct of criminal trials by Mr Macdonald as a temporary judge lies in his relationship, if any, with the Lord Advocate.  All prosecutions in the High Court of Justiciary proceed in the name and at the instance of the Lord Advocate.  Evidence that a temporary judge was dependent for his appointment or its renewal to any extent on decisions taken by the Lord Advocate would be bound to lead to a suspicion that he might favour the prosecutor, albeit unconsciously.  The fact that the verdict in a criminal trial is in the hands of the jury in the High Court does not remove the opportunities for a judge to favour the prosecutor if so inclined.  Nor does the right of appeal against conviction and sentence: see Findlay v United Kingdom (1997) 24 EHRR 221, para 79.  So this point deserves anxious scrutiny.

45.	There is no doubt that when the appointment of temporary judges was first introduced the Lord Advocate played a central role in the entire system, despite the absence of any reference to him in the statute.  This was because under the system that existed before devolution he was expected to provide advice to the Secretary of State for Scotland on the making of judicial appointments in his capacity as Scotland’s senior law officer.  Under the devolved system of government that has been introduced following the coming into force of the Scotland Act 1998 and the setting up of the Judicial Appointments Board in 2002 the role that he had in the making of permanent judicial appointments has disappeared completely.  The fact that he was consulted by the Lord President when Mr Macdonald was appointed to be a temporary judge in July 2001 tells us more about past practice than it does about the system under which Mr Macdonald was operating in July 2003.  By then the Lord Advocate had ceased to be a consultee in the making or renewal of these appointments.  Any discussions about the need for them were being conducted between the Lord President and the Justice Minister.

46.	Miss Scott submitted that weight should be given to the position of the Lord Advocate as a member of the Scottish Executive.  Section 35(3) of the 1990 Act, as amended, places the responsibility for the making of the appointments on the Scottish Ministers after consulting the Lord President.  The Lord Advocate, said Miss Scott, is one of the Scottish Ministers.  So he is, as section 44(2) of the Scotland Act 1998 provides that the members of the Scottish Executive, of which the Lord Advocate is a member, are referred to collectively as the Scottish Ministers.  But the ascertainable facts by reference to which the qualities of independence and impartiality are to be judged include the way the system is in fact operated.  The collective veil can be lifted to reveal what actually happens.  What actually happens is that the role which the Lord Advocate previously performed in the making and renewal of these appointments is now being performed by the Justice Minister on behalf of the Scottish Ministers.  The Justice Minister is not responsible for the system for the prosecution of crime in Scotland.  That is the responsibility of the Lord Advocate, who now plays no part in the appointment of the judges who sit in the criminal courts.   

47.	Then there is the question whether the persons who are appointed to this position have security of tenure while acting as temporary judges.  Lord Kirkwood, delivering the opinion of the court, said in para 37 that in the court’s opinion a temporary judge, appointed for a fixed period determined by the Scottish Ministers in accordance with para 5 of Schedule 4 to the 1990 Act, had security of tenure during his term of office and was entitled to enforce that security against the Scottish Executive.  In Clancy v Caird, 2000 SC 441, Lord Sutherland at p 448, para 7 and Lord Coulsfield at p 457, para 15, were of the same opinion.  Miss Scott submitted however that this was not so on a proper construction of the relevant paragraphs of Schedule 4 to the 1990 Act.

48.	In Mackay and Esslemont v Lord Advocate, 1937 SC 860, two members of the Scottish Land Court had been appointed by the Secretary of State under commissions which stated that their appointments were granted during pleasure only and that the holder should vacate office on attaining the age of sixty five. The Lord Ordinary, Lord Robertson, held that the Secretary of State had no power to make an appointment in these terms, for which there was no statutory authority.  At p 865 he said that it was inconsistent with the common law nature of the judicial office that its tenure should be precarious, or should be of any less security than a tenure ad vitam aut culpam.  Referring at p 866 to the Claim of Right of 1689, cap 13, which he identified by its other name as the Declaration of the Convention Parliament, he said that it might be properly regarded as setting forth generally that any tenure of a salaried judicial office which is other than ad vitam aut culpam is inconsistent with the common law nature of the office.  The office of a temporary judge is not, of course, a salaried one.  But the common law provides the background for an examination of what is contained in the statute.  If the office was to be terminable at pleasure one would expect this to be provided for expressly, as it was in the case of temporary sheriffs in section 11(4) of the Sheriff Courts (Scotland) Act 1971 which provided that the appointment of a temporary sheriff was to subsist until recalled by the Secretary of State.

49.	A provision in the same terms as section 11(4) of the 1971 Act is notable by its absence from Schedule 4 to the 1990 Act.  Paragraph 5 of the Schedule states that a person who is eligible may be appointed as a temporary judge for such period as the Scottish Ministers shall determine.  As I have already noted, the practice was established from the outset that these appointments should be made for a fixed period.  The period for which the appointment is made is stated expressly in the commission which the temporary judge receives on appointment.  The conclusion which I would draw from the terms of the commission, with the support of the common law, is that the temporary judge enjoys security of tenure throughout the period of the appointment.  It would be extraordinary if it were to be open to the Scottish Ministers to withdraw the commission at any time during that period, perhaps on the eve of or during the hearing of a case in which they had an interest.  That is the effect of Miss Scott’s submission, but I do not think that this can be right in the absence of a statutory power to do so.  

50.	Paragraph 6 of Schedule 4 reinforces the conclusion that I would draw from the terms of the commission.  It states that a person appointed as a temporary judge shall, while so acting, be treated for all purposes as, and accordingly may perform any of the functions of, a judge of the court in which he is acting.  This provision is subject to paragraph 7 of the Schedule, which provides that a person shall not by virtue of paragraph 6 be treated as a judge of the Court of Session for the purposes of any other enactment or rule of law relating, among other things, to the appointment or tenure of office of judges of that Court.  Miss Scott said that the effect of paragraph 7 was to exclude temporary judges from the protection of the common law rule.  I do not agree.  It seems to me that the effect of paragraphs 5 and 6 is to preserve the common law and to bring temporary judges within its protection during the period of their appointment and while they are acting as temporary judges.  

51.	It is instructive to compare the position of temporary judges appointed under section 35(3) of the 1990 Act with that of temporary sheriffs appointed under section 11 of the Sheriff Courts (Scotland) Act 1971.  When their position was examined in Starrs v Ruxton; Ruxton v Starrs, 2000 SC 208, it was held that temporary sheriffs were not an independent and impartial tribunal within the meaning of article 6(1) of the Convention.  In the course of his opinion Lord Justice-Clerk Cullen identified the following points as leading to that conclusion at pp 226-230: (1) the fact that the Secretary of State’s power to recall their appointment in section 11(4) was without any qualification as to the circumstances in which it might be exercised; (2) the terms of the temporary sheriff’s appointment, which contained a temporal limit to the appointment of one year for which no authority was to be found in the statute, reinforcing the impression that the tenure of office by the individual temporary sheriff was at the discretion of the Lord Advocate; and (3) the restrictions which the Lord Advocate had applied in determining those who qualified for re-appointment, setting out the minimum periods of work which they were expected to perform and an age limit of sixty five for which too there was no sanction in the statute and could therefore change as one Lord Advocate succeeded another.  

52.	These factors were all absent in the case of temporary judges appointed under section 35(3) of the 1990 Act by July 2003 when Mr Macdonald was presiding over the trial in which the appellant was convicted.  The Scottish Ministers had no power to recall his appointment during the period determined in accordance with paragraph 5 of Schedule 4 which was expressly stated in his commission of appointment.  And the Lord Advocate had for all practical purposes withdrawn completely from any involvement in the reappointment of temporary judges after the period of their current appointment had come to an end.  For all practical purposes, subject to consultation with the Justice Minister, these matters were now exclusively under the control of the Lord President as head of the judiciary.  

53.	In these circumstances I see no reason to doubt the independence or impartiality of temporary judges appointed from the Bar, such as Mr Macdonald, to act as judges in the High Court of Justiciary.  I do not think that the well-informed and reasonable observer, having considered the facts, would conclude that there was a real risk that Mr Macdonald was biased.  The security of tenure which he enjoyed during the period of his appointment, together with the fact that issues as to the work that he was to be employed to do and as to his re-appointment at the expiry of that period were in the hands not of the Lord Advocate but of the Lord President, provided the guarantees that were needed to meet the requirements of independence and impartiality guaranteed by article 6(1) of the Convention.                       

Conclusion

54.	I would dismiss the appeal and affirm the interlocutor of the High Court of Justiciary.
____________________
 
Baroness Hale of Richmond

For the reasons given by my noble and learned friends, Lord Bingham of Cornhill and Lord Hope of Craighead, I too would dismiss this appeal.
____________________

Lord Carswell

55.	I have had the advantage of reading in draft the judgment prepared by my noble and learned friend Lord Hope of Craighead.  I fully agree with his reasons and conclusion and wish to make only a brief addition on one aspect of the appeal.

56.	Article 6(1) of the European Convention on Human Rights prescribes that everyone is entitled to a hearing by “an independent and impartial tribunal”. The importance of impartiality requires no elaboration, but the relationship between impartiality and independence has given rise to some questions and discussion.  It might once have been possible to argue that the requirement of independence is no more than one of the essential prerequisites for ensuring the necessary impartiality of a tribunal.  Article 6(1) provides that both must be established, however, and in the case-law independence is generally treated as a separate and freestanding requirement.  It is therefore not now possible, if it ever was, to propound the suggestion that the requirement is only that of impartiality and that independence need be considered only in so far as it conduces to impartiality.

57.	The European Court of Human Rights stated in Findlay v United Kingdom (1997) 24 EHRR 221 at para 73 that “the concepts of independence and objective impartiality are closely linked” and that it would consider them together, but it did not enter into further discussion of the nature of the link.  Some indication of its thinking may, however, be obtained from the earlier case of Piersack v Belgium (1982) 5 EHRR 169, when at para 31(d) the Court referred, in discussing the requirement of impartiality, to the need for the courts to inspire in the public “the confidence which is indispensable”.  This is echoed in Scottish law by the statement of Lord Fraser of Tullybelton, writing on the independence of the judiciary in the title on Constitutional Law in the Stair Memorial Encyclopaedia, vol 5, paras 663-667, where he identified security of tenure and immunity from suit as the two most important ways of ensuring that judges perform their duties impartially and without fear of the consequences.

58.	Authority in the Scottish courts may be found in the decision of the High Court of Justiciary in Starrs v Ruxton 2000 JC 208.  Lord Prosser said at p 232, in the context of the standing of a temporary sheriff:

“4. As regards the actual words "independent" and "impartial", the latter appears to me to be of the essence of the judicial process. I would regard the concept of a partial judge as a contradiction in terms. But I am inclined to see independence - the need for a judge not to be dependent on others - as an additional substantive requirement, rather than simply a means of achieving impartiality or a perception of impartiality. Independence will guarantee not only that the judge is disinterested in relation to the parties and the cause, but also that in fulfilling his judicial function, generally as well as in individual cases, he is and can be seen to be free of links with others (whether in the Executive, or indeed the judiciary, or in outside life) which might, or might be thought to, affect his assessment of the matters entrusted to him. The requirement of independence seems to me to have an importance which runs even wider than that of impartiality. The two concepts appear to me to be inextricably interlinked, and I do not myself find it useful to try to separate the one from the other.”

Lord Reed considered the link between the concepts at p 252: 

“48. This matter was raised on behalf of the complainers as one of the factors relevant to an assessment of the temporary sheriff's independence. In that regard, it has to be borne in mind that ‘independence’ within the meaning of Article 6 has been said to include independence from the parties to the proceedings: Campbell and Fell, paragraph 78 (a formulation which has been criticised as confusing independence - regarded as an aspect of the separation of powers - with impartiality: see e.g. Van Dijk and Van Hoof, Theory and Practice of the European Convention on Human Rights, 3rd edition, 1998, p.451; Soyer and De Salvia, in La Convention Européene des Droits de l'Homme, ed. Pettiti, Decaux and Imbert, 2nd edition, 1999 p.260). Nevertheless, I consider this matter to be one which raises primarily an issue of impartiality. I do not regard it as necessary to attempt an exhaustive definition of the concepts of independence and impartiality or to define the distinction between them (questions which have troubled the Supreme Court of Canada, notably in the case of R. v Lippé (1990) 60 CCC (3d) 34). So far as Article 6 is concerned, it is clear that the concepts of independence and ‘objective impartiality’ (which I shall describe in a moment) are closely linked, and the European Court of Human Rights often considers them together (e.g. Findlay, paragraph 73). In the present case, some of the concerns raised by the complainers in respect of the legal practices of temporary sheriffs might be viewed as relating to a possible lack of independence from the parties - that is to say, they relate to the relationship between the temporary sheriff and the parties - while others pertain directly to the thinking processes of the temporary sheriff. All of them can be considered as affecting the appearance of impartiality as well as being the consequence of the combined status of lawyer and part-time judge. They can all be regarded as pertaining to ‘objective impartiality’ and can be considered under that head, which can also cover all the issues which might arise under the head of independence, notably whether the court presents an appearance of independence from the parties.”

59.	A similar approach may be seen in the treatment by the Supreme Court of Canada when considering the identical phrase “independent and impartial tribunal” in section 11(d) of the Canadian Charter of Rights and Freedoms (though I must agree with Lord Reed’s salutary reminder in at p 248 in Starrs v Ruxton of the caution required in dealing with decisions in which constitutional instruments from other jurisdictions are interpreted).  In Valente v The Queen (1985) 34 DLR (4th) 161 at 169-70 Le Dain J, giving the judgment of the court, said:

“Although there is obviously a close relationship between independence and impartiality, they are nevertheless separate and distinct values or requirements.  Impartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case.  The word 'impartial', as Howland C.J.O. noted [in the lower court], connotes absence of bias, actual or perceived.  The word 'independent' in s. 11(d) reflects or embodies the traditional constitutional value of judicial independence.  As such, it connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly in the Executive Branch of government, that rests on objective conditions or guarantees.”

60.	Lord Steyn brought these threads together in Lawal v Northern Spirit Ltd [2003] UKHL 35, [2004] 1 All ER 187 at para 14 of his opinion.  He expressed the view, in the context of the need for impartiality, that there is now no difference between the common law test of bias and the requirements under article 6 of the Convention of an independent and impartial tribunal.  He went on to refer to “the confidence which must be inspired by the courts in a democratic society”, a theme which has found regular expression in decisions of the European Court of Human Rights, and said that “public perception of the possibility of unconscious bias is the key”.

61.	This, I think, is also the key to understanding the relationship between the requirements of impartiality and independence.  Independence of a tribunal is required in order that the public, seeing this, may feel confidence in its ability to decide cases without any influence from the Executive being brought to bear or any feeling that it needs to have regard to the views or wishes of the Executive in reaching its decisions.  That confidence is in addition and complementary to the need for the public perception of lack of bias or partiality.  For this reason the concepts are separate and distinct, though closely linked both in their nature and in the underlying reason for the imposition of the requirements.

62.	I agree with Lord Hope that the principles by reference to which the issues by which independence and impartiality should be judged are well settled.  I also agree with the reasons which he has articulated for concluding that there is no reason to doubt the independence or impartiality of temporary judges appointed from the Faculty of Advocates to act as judges in the High Court of Justiciary.

63.	I would therefore dismiss the appeal.

____________________

Lord Brown of Eaton-under-Heywood

64.	 I have had the advantage of reading in draft the opinions of my noble and learned friends Lord Bingham or Cornhill and Lord Hope of Craighead and for the reasons they give I too would dismiss this appeal.