(70) Temporary sheriffs, the Lord Advocate and human rights
Under s 57 of the Scotland Act 1998, members of the Scottish Executive may not do any act incompatible with rights under the European Convention on Human Rights. The Lord Advocate became a member of the Scottish Executive on 20 May 1999 and so subject to Convention rights, although he is exempted as the head of public prosecution in Scotland insofar as he could not have acted differently as the result of one or more provisions of primary legislation. On 11 November 1999 the High Court of Justiciary upheld a challenge under Article 6 of the European Convention of Human Rights which brought to an end the system of temporary sheriffs in Scotland. A prosecution before Temporary Sheriff David Crowe in Linlithgow Sheriff Court was challenged on the basis that, the Lord Advocate having a key role in the appointment, dismissal and non-reappointment of temporary sheriffs as well as being head of the public prosecution system in Scotland, such sheriffs could not be regarded as sufficiently independent of the Executive to meet the requirements of Article 6 that an accused have a fair hearing before an “independent and impartial tribunal” (Starr and Chalmers v Ruxton, 1999 GWD 37-1793; Times, 17 November 1999).
The comments of the High Court in Starrs and Chalmers about the purpose of the statutory provisions under which temporary sheriffs had been appointed (Sheriff Courts (Scotland) Act 1971, s 11) led to a further challenge, this time to the validity of all appointments of temporary sheriffs since at least 1977, but this was rejected by the High Court on 25 November 1999.