The Case Files: Article 6 in action - ensuring impartial and independent legal decisions

Transcript

00:00:05 David Lee, Host

Hello and welcome to Podcast by Brodies. My name is David Lee and this episode is part of a new series of The Case Files which looks back at significant cases from legal history that have helped shape how the law is applied today.

Our discussion today looks at two relatively modern cases under the title, human rights and impartial decisions, Clerk v Kelly 2004, and Cairney v HMA 2006.

During the early 2000s, Brodies lawyers were involved in a series of cases that went to the Judicial Committee of the Privy Council, then the highest court in the UK for human rights disputes in Scottish criminal cases, and both cases focus on the importance for people accused of crimes to have their cases decided by independent and impartial decision makers and are right protected by Article 6 of the European Convention on Human Rights and to discuss these cases today, I'm joined by two Brodies experts. Christine O'Neill KC is Brodies chair and an expert in public law and Clare Bone is a partner and solicitor advocate with the right to appear in the higher criminal courts.

Welcome to you both. First of all, we'll hear a little about each case and why it was important. So first of all, Christine, tell us a little bit about Clerk v Kelly, what was it about?

00:01:35 Christine O'Neill KC, Chair

Thanks, David. So, at one level, it's a case about not very much at all, a gentleman who had been accused of stealing two boxes of chocolates in Fife, which would be treated normally as a fairly low level offence and it was a crime that he would be tried for in what was then the District Court, which would be the lowest Criminal Court in the Scottish system. But the case raised a question that was of wider importance for district courts across Scotland, but also for magistrates courts in England and Wales, and that was a question about the way those courts operated, they combined, a non-legally qualified decision maker, so the judge would be a person who didn't have legal qualifications, but they would always be supported by a clerk or an advisor who did have legal qualifications. The question that arose was about the lawfulness of the system that was then in place and the role of that legally qualified advisor or clerk in supporting the non-legally qualified judge.

00:02:44 David Lee, Host

Thanks very much, Christine. I suppose proving there that life and law is just a box of chocolate sometimes. Clare, the second case, Cairney v HMA, can you tell us about that case and Brodies part in that.

00:02:59 Clare Bone, Partner and Solicitor Advocate

Well, this was a more serious case than Clerk v Kelly, rather than stealing boxes of chocolates, Mr Cairney had been accused and was convicted of a number of charges of assault in the High Court of Justiciary. He appealed his conviction on a number of grounds, but the ground that concerns us today is one that related to him challenging the conduct of the trial before the judge in question. The judge in that case was a temporary judge rather than a full-time judge and the basis of the appeal, they are centred around the circumstances in which temporary judges were appointed at that time by ministers of the Scottish Executive, now, the Lord Advocate, who's also the head of the prosecution service, is one such minister. The Lord Advocate, as well as being a member of the Scottish Executive, as I say, heads the prosecution service and it's in his or her name that all indictments run. So, it was suggested in this case that the courts presided over by temporary judges, were not independents and impartial tribunals because of the appointment of those Judges by the Lord Advocate. So, the court was asked to hold that the calling of the case by the Lord Advocate and leading evidence in seeking conviction by the jury before such a tribunal was incompatible with the right of an accused to a fair trial. In that case, the appeal was refused by the Appeal Court in Edinburgh and taken to the Judicial Committee of the Privy Council. As with the case of Clerk v Kelly, Brodies had the fortune to act as Edinburgh agents in that matter, so were able to deal with the case, first of all, in the Criminal Appeal Court in Edinburgh, but then also at the Judicial Committee of the Privy Council, and I think it's fair to say that acting as Edinburgh agents at that time gave the firm a real opportunity to have firsthand involvement in the shaping of her jurisprudence on human rights issues in criminal cases like this.

00:05:09 David Lee, Host

Thanks very much, Clare. Obviously, they're quite disparate cases, and very different and turn on quite different issues. What common principle links these two cases together in terms of the issue at hand today, independence and impartiality?

00:05:30 Clare Bone, Partner and Solicitor Advocate

So both cases, although they arise in different courts dealing with very different matters, one raises an issue pretrial in Clerk v Kelly and the other was after conviction. At the end of the day, they both asked the same question of the court, could each accused in their own case receive a fair and public hearing by an independent and impartial tribunal, in accordance with the rights that they had, and indeed anybody has in the determination of a criminal charge against them and that's something provided for by Article 6 of the European Convention on Human Rights, which the UK is a signatory to. Both appeals preceded by the raising of what was then called the devolution minute, now called a compatibility minute, which alleges breaches of human rights under the Convention. The Scotland Act of 1998 provided that a member of the Scottish Executive, which includes the Lord Advocate, has no power to do any act which is incompatible with any convention right so both appeals were raised on that basis. In each case it was submitted that the court wasn't independent and impartial, and so the Lord Advocate, in insisting on raising proceedings, whether that be in the District Court or the High Court, was acting in a manner that was prohibited under the Scotland Act. I think it's also worth pointing out, in fairness that in each case, the appellants weren't saying that the temporary judge or the District Court lay justice and Clark were themselves lacking independence or impartiality on a subjective basis that they were biassed, but rather they were looking at the circumstances of each case very much on an objective basis, could a fair minded and informed observer looking at the facts conclude there was a real possibility the tribunal was biassed? After all, justice must not only be done, but it has to be seen to be done, and this involves subjective and objective assessment, and it's that latter objective assessment that the courts were looking at in both cases.

00:07:32 David Lee, Host

Thanks, Clare. Christine, have you got anything to add there in terms of the context of the European Convention on Human Rights, specifically Article 6, and why it does have such significance in these cases?

00:07:46 Christine O'Neill KC, Chair

So, as Clare has explained, the UK is a signatory in international law to the European Convention on Human Rights. But what was happening in the early 2000s UK was implementing that convention in a new way by making the rights under the Convention something that could be relied on in court by individuals within the UK itself, and so this was the beginning of what has become a rich seam of cases about how the Convention rights should be applied within our own domestic legal systems. It was quite a new thing for our system, as Clare has explained, it came through the Scotland Act in part and it also has come through the Human Rights Act of 1998 and these really were pioneering lawyers who were bringing these cases and pioneering cases before the courts to try to establish how systems that had been in place for many years were to be judged against these new domestic standards brought in under the Convention.

00:08:54 David Lee, Host

Thanks very much, Christine. So, we'll go down into the two cases in a bit more detail now. We will look at Clerk v Kelly first. As you've said earlier on, Christine, the issue here as to whether it was proper for the clerk to give advice in private to the presiding justice of the peace, can you clarify the roles of the people involved here in terms of the clerk and the JP and their interaction and why it matters in this case?

00:09:20 Christine O'Neill KC, Chair

So, the justice of the peace is the decision maker, was the decision maker in the District Court now what's called the justice of the peace court, and is effectively the judge, and there was a bit of a debate in Clerk v Kelly about whether you could also say that the Clerk of the court was part of the court, was part of that decision making process. Now the Privy Council kind of fudged the answer to that question, but what they said was what is clear is that the clerk of the court is essential to the proper operation of district courts, and that's because these non-legally qualified judges will sometimes need advice on questions of law, even though the crimes can be quite minor from time to time, questions will come up about evidence, might come up about sentencing, might come up about questions of law around the kinds of offences being tried, so the clerk is a legally qualified person who provides advice on questions of law only, the facts are entirely for the lay justice but that's how their rules are separated.

00:10:29 David Lee, Host

Why was it wrong for the clerk to give advice in private on this occasion?

00:10:35 Christine O'Neill KC, Chair

I suppose that was the question for the Privy Council, was it wrong at all? And indeed, the judges had different things to say about whether it was wrong. What they did conclude was that the structure was perfectly acceptable, it was compatible with Article 6 to have a system where you had non-legally qualified decision makers but legally qualified advisers. I think it was Lord Hope who said that what was objectionable about advice being given in private was that that deprived the accused person of their right to know what was going on at their own trial and to be able to comment on that. So, the guidance that the court gave was yes, advice can be given to a lay Justice in, in private, but that advice has to be treated as almost provisional and then when you come out of the private environment the advice has to be repeated to the accused person, they have to the opportunity, through their lawyer or themselves, to comment on it before any decision is taken based on that advice.

00:11:39 David Lee, Host

Finally, Christine, before we move on, why was this significant? What happened and why was it significant? Why are we talking about it in The Case Files?

00:11:51 Christine O'Neill KC, Chair

We're talking about it because it changed for all lay magistrates across the UK how they were expected to go about running their courts. The Judicial Committee of the Privy Council recognised that some courts did do things this way and but what they were saying was for the whole system, there needs to be consistency and there needs to be a fair approach to this and we're going to give guidance to magistrates in England and Wales, we're giving guidance to lay justices in Scotland that this system needs to be applied more consistently across the board.

00:12:29 David Lee, Host

Thank you, Christine. We'll come back to case two now, Cairney against HMA and the right of the Lord advocate to appoint temporary judges. So, just to rewind a bit on this one, Clare, what do we mean by a temporary judge? Why would the court system require temporary judges at times?

00:12:48 Clare Bone, Partner and Solicitor Advocate

When we're speaking about judges, in this case, we're talking about those judges who preside over the higher courts in Scotland so that's the Court of Session for civil matters and the High Court of Justiciary for criminal. There are a maximum number of judges who can be appointed to act as full-time judges in either the Court of Session or the High Court of Justiciary and that number sits at 36 just now. From time to time, however, pressure of business might require additional resource to supplement that number, and that's where the use of temporary judges comes into play. At the time of Cairney, the use of temporary judges was not a new concept, it's something that had been around for a couple of decades and temporary judges were appointed under statute by Scottish ministers; after consulting the Lord President, the Lord President is the head of the judiciary in Scotland. The appointment was for such period as the Lord President felt fit to facilitate the disposal of court business. Now the difference today is that the appointment of temporary judges is governed again by the Lord President's selection but it's now for a period of five years rather than any term, that the Lord President sees fit. Temporary judges have the same powers when it comes to conducting court business as a full time judge and are generally appointed from the ranks of sheriff's principles or those with rights of audience in the higher court. So that would be advocates and solicitor advocates provided all have been in that role for five years. They are required, as I say, where there is pressure on the existing permanent judges to deal with court business, this could be down to a number of factors, that could be down to the ill health on the part of a judge or if there's a particularly long running trial or proof that's taking a judge out of circulation for a long period of time. We're seeing that particularly just now with the long running in public inquiries that we're seeing in Scotland, the COVID inquiry, the child abuse inquiry and the Sheku Bayoh inquiry are all long running public hearings chaired by a permanent judge which take that judge out of circulation and impact on the ability of the court to deal with its day-to-day court business effectively, so temporary judges do play a significant role in the administration of justice.

00:15:13 David Lee, Host

Thanks, Clare. So what was the decision in this case on temporary judges and the right of the Lord Advocate to appoint them? Why was it so significant?

00:15:23 Clare Bone, Partner and Solicitor Advocate

The Privy Council dismissed the appeal. It held that there was no breach of convention rights in terms of the way temporary judges were appointed. They held that it was the Lord president, as head of the judiciary, who instigated the appointment of temporary judges, and it was the Lord president that suggested suitable appointees to the Scottish Ministers, it was not the Lord Advocate who initiated the process. It's worth contrasting that with the position with temporary sheriffs, who were in existence at the same time as the case against Cairney. In that case, a devolution minute was raised in the case of Starrs v Ruxton, again to the Judicial Committee on the basis that temporary sheriffs were incompatible with Article 6 rights now. In that case, the Lord Advocate did have more of a role in the appointing of temporary sheriffs, and that wasn't found to be an independent and impartial tribunal but, in this case, the Lord Advocate did not have the same rule. It was also down to the Lord President, who directs the work that is to be done by a temporary judge during the period of appointment and it's in the Lord President's hands to decide on reappointment not crucially with the Lord Advocate. So that coupled with the security of tenure that was said to be enjoyed by a temporary judge during his or her appointment, provided the guarantees that were needed to be met in order for the requirements of independence and impartiality demanded by Article 6 to be satisfied.

00:17:05 David Lee, Host

Thank you Clare for that. Christine, we've heard that both of these cases were referred to the Judicial Committee of the Privy Council, what does that mean and how did a referral happen?

00:17:17 Christine O'Neill KC, Chair

So again, as I've explained, these were early cases in the history of devolution and they were raised under the Scotland Act 1998 and when devolution came into being, we didn't have what is now the UK Supreme Court, it didn't exist. We had cases that would go to the House of Lords in London, from Scottish courts, but only in civil matters. The devolution legislation created a new route for questions arising under the devolution acts for Scotland, for Wales, for Northern Ireland and those cases were to be held heard by the Judicial Committee of the Privy Council. It was the same judges as who sat in cases in the House of Lords but the Judicial Committee of the Privy Council was historically and remains a court that hears cases that come from the commonwealth, from courts outside of the United Kingdom relating to their constitutional arrangements, and it was thought that the JCPC would be the best place for devolution cases to go. That was changed by the Constitutional Reform Act of 2005 and those changes came into being in 2009 and so if Clerk v Kelly or Cairney v HMA occurred today, those cases would go to the UK Supreme Court instead.

00:18:46 David Lee, Host

Just to summarise, come towards an end here, Clare, if you can just tell us broadly again the significance of these two cases collectively and why they are still significant 20 years on?

00:19:02 Clare Bone, Partner and Solicitor Advocate

Both were significant, as in each there was a suggestion that the way in which the courts have proceeded to run for decades was in fact tantamount to a breach of Article 6. As Christine said earlier, these were part of a number of cases that were coming through the courts testing the way that court business was conducted, and it's fair to say that at the time, this was quite a disruptive and unsettling time for the judicial system. Not knowing which way these cases were all going to lie. In the case of Clerk v Kelly, I do recall before this judgement I was a very junior solicitor at the time and I did think it curious that an assessor and justice could have such a private discussion, retiring to chambers and nobody knew what was going to be said. Nobody knew or was able to scrutinise that. So, I think the change brought about in that case is a welcome one. As Christine has said, it wasn't just confined to the way that the District Court, now the justice of the Peace Court, runs but was in fact rolled out across England and Wales as well in terms of magistrates courts, we also saw changes brought in in the way that other tribunals were conducted, for instance, cases brought before the General Medical Council, where there is a lay chair presiding over matters with a legal assessor to their to their right hand. They too require to adopt this process too, and I think it's all for the better. Whilst it's maybe not common to have to comment on the advice that's provided, certainly in my experience in in justice of the peace cases, there is the ability to test the advice now and some District Court cases, or justice of the peace court cases, can be incredibly complex, even though they're dealing with lower level matters and it's good to have that transparent hearing in place and I think younger listeners might be surprised to hear how it once was. In terms of Cairney in the position of temporary judges, the key factor here was that the Lord Advocate had very little to do with appointments, unlike as I mentioned earlier, the appointment of temporary sheriffs where that was found to be an unfair process. I think if that case had gone the other way, if there had been found to be a breach of convention rights, that would have opened the floodgates to so many appeals and also one wonders how the courts would actually have coped with the pressure of business. Bringing in legislation to change the maximum number of full-time judges is one thing, but taking on judges full time would be costly, probably unaffordable, and with the possible ebb and flow of business, there might be times when some might have very little to do at great expense to the tax payer. The role of temporary judges allows for a much more nimble judiciary as well as it being more cost effective and today still we're seeing heavy use of temporary judges, particularly in the High Court. Indeed, at the start of this year, we saw another four temporary judges appointed as the court continues to wrestle with the backlog of cases caused by COVID. I think it's fair to say the Judicial committee couldn't have envisaged the pandemic and the strain that it would have on the justice system, but I do think its decision has allowed for the continued use of temporary judges as the justice system continues to wrestle with the very large volume of cases.

00:22:33 David Lee, Host

Christine, just any final word from you on why these two cases are resonating and the way that the courts generally are dealing with these broad issues of independence and impartiality?

00:22:46 Christine O'Neill KC, Chair

So, the resonance for me is a very personal one because I act from time to time as a legal adviser to lay decision makers and my perspective on the effect particularly of Clerk v Kelly is that I am certain it has led to better quality advice being given to the decision makers in question. If you know that you're going to have to repeat your advice in front of the parties to a case and their lawyers, I can assure you it makes you think even more carefully about the careful advice you would have given anyway.

00:23:22 David Lee, Host

I suppose it's a very similar principle to if you're going to write an e-mail or a WhatsApp message, always bear in mind that it might end up in the public domain so.

00:23:31 Christine O'Neill KC, Chair

And that's a whole other podcast, David.

00:23:34 David Lee, Host

It certainly is.

Thank you very much to Christine and Claire for your excellent insights today.

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