## Facts

- Two accused were prosecuted on a summary complaint in a Scottish sheriff court.
- Trial began before a temporary sheriff, was adjourned, and later called before a different temporary sheriff due to prosecutorial scheduling issues.
- The later temporary sheriff permitted the accused to raise a devolution issue challenging the legality of being tried by a temporary sheriff.
- Under the governing statute, temporary sheriffs were appointed by the executive and served on short, renewable commissions that continued until recalled by the executive.
- The accused argued that this tenure structure permitted executive control and created an appearance that temporary sheriffs lacked independence, particularly where the prosecutor (the Lord Advocate) was also part of the executive.
- The initial trial sheriff rejected the devolution challenge and refused to allow further adjustment to the minutes; the accused sought review by bills of advocation.
- The prosecution also challenged whether the devolution issue had been competently allowed by a temporary sheriff who was not the original trial sheriff.

## Issues

1. Whether a temporary sheriff appointed on renewable terms and removable at executive pleasure is an “independent and impartial tribunal” under Article 6(1) of the European Convention on Human Rights.
2. Whether continuing a prosecution before such a tribunal is beyond the Lord Advocate’s powers under Scotland Act 1998 § 57(2) because it is incompatible with Convention rights.
3. Whether it was procedurally competent for a different temporary sheriff (not the original trial sheriff) to allow the accused to raise the devolution issue in the summary proceedings.

## Decision

- The court held that temporary sheriffs, as appointed and removable under the statutory scheme, did not provide the objective guarantees of independence and impartiality required by Article 6(1).
- The court held that prosecuting before a tribunal that is not Convention-compliant was incompatible with Convention rights; under Scotland Act § 57(2), the Lord Advocate therefore lacked power to continue the prosecution in that forum.
- The court rejected the prosecution’s procedural objection and held the devolution issue had been competently raised.
- The accused’s bills of advocation were allowed, preventing the summary proceedings from continuing before the temporary sheriff.

## Legal Principles

- Article 6(1) requires not only actual impartiality but also objective institutional guarantees sufficient to dispel legitimate doubt about judicial independence.
- Executive power to remove a judge “at pleasure,” combined with short-term renewable appointments, can create an impermissible appearance of dependence inconsistent with Article 6(1).
- Fixed-term judicial office may be compatible with independence only where tenure protections and removal safeguards provide adequate objective guarantees; renewable, recallable commissions lack those guarantees.
- Under Scotland Act 1998 § 57(2), the Lord Advocate has no power to take prosecutorial steps that are incompatible with Convention rights, including insisting on trial before a structurally non-independent tribunal.
- A devolution issue challenging the prosecutorial competence to proceed in a particular forum may be raised and allowed in summary proceedings without being limited to the sheriff who first heard evidence.

## Conclusion

The court ruled that the statutory arrangements for temporary sheriffs failed Article 6(1) because executive-controlled renewal and recall undermined objective judicial independence, and it further held that the public prosecutor could not lawfully continue proceedings before such a tribunal under Scotland Act § 57(2).


Starrs v. Ruxton, [2000] J.C. 208 (Scot. High Ct. Just. 1999)