Ruling casts doubt on selection of judges

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THE LEGAL basis for the appointment of hundreds of judges was thrown into doubt yesterday when a Scottish court ruled that the selection of temporary sheriffs (judges) breached Scotland's new human rights legislation.

Scotland's highest appeal court decided defendants could be denied a fair trial because temporary sheriffs were appointed by the Lord Advocate, Lord Hardie, who is Scotland's chief prosecutor. The ruling has implications for all appointed judges where there is a potential conflict of interest.

The two solicitors behind the legal appeal, Iain Smith and Neil Robertson, said the appointments jeopardised the chances of a fair and impartial tribunal defined under Article Six of the European Convention of Human Rights, which became law in Scotland in May.

In a 130-page judgment Lord Cullen said: "In proceeding with a trial before a temporary sheriff the Lord Advocate as represented by the procurator fiscal acted incompatibly with the right of the accused under Article Six 1 of the European Convention on Human Rights to a fair trial by an independent and impartial tribunal."

The European Court of Human Rights is considering a similar claim over the legality of the appointment of judges in Jersey. Lawyers in England and Wales say it is only a matter of time before a case is brought in this country to challenge the position of the Lord Chancellor, Lord Irvine of Lairg, as a member of the cabinet, a sitting judge and the man responsible for all judicial appointments.

Murray Hunt, a human rights lawyer at a leading barristers chambers, 4-5 Gray's Inn Square, said the case demonstrated the increase in the level of scrutiny of the judicial appointments system. He said deputy High Court judges, who were practising barristers and relied on the State for some work, were the most at risk from challenge.

Yesterday's ruling could have a huge impact on the Scottish judicial system which relies on 129 part-time sheriffs to bolster the work of the existing 120 permanent sheriffs.

It could also lead to a flood of appeals against decisions taken by temporary sheriffs since May. The Scottish Executive said yesterday that it was considering whether to appeal to the Privy Council.