Procurator Fiscal, Kirkcaldy v Kelly, Court of Appeal - Privy Council, March 05, 2003, [2003] UKPC D1
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Procurator Fiscal, Kirkcaldy v Kelly, Court of Appeal - Privy Council, March 05, 2003, [2003] UKPC D1
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[2003] UKPC D1Procurator Fiscal, Kirkcaldy v Kelly (Scotland) [2003] UKPC D1 (5 March 2003) Privy Council DRA. No. 2 of 2002Hellen Clark (Procurator Fiscal, Kirkcaldy) Appellant v.Christopher John Kelly Respondent FROM THE HIGH COURT OF JUSTICIARYSCOTLAND --------------- JUDGMENT OF THE LORDS OF THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, Delivered the 11th February 2003 ------------------ Present at the hearing:- Lord Bingham of Cornhill Lord Hoffmann Lord Hope of Craighead Lord Hutton Lord Rodger of Earlsferry ------------------Lord Bingham of CornhillThis devolution issue raises a question concerning the structure and procedure of district courts in Scotland. Put very shortly, the question is whether, if the complaint of theft made by the Procurator Fiscal, Kirkcaldy, against the minuter proceeds to trial in the District Court sitting at Kirkcaldy before a lay justice of the peace, the minuter's rights guaranteed by article 6 of the European Convention on Human Rights will be violated, that is, whether he will be denied a fair and public hearing by an independent and impartial tribunal. The question is an important one, since district courts so constituted handle a substantial proportion of criminal business in Scotland. Magistrates' courts in England and Wales differ from Scottish district courts in their jurisdiction, in the number of justices who ordinarily sit and in some aspects of their procedure, but the two systems are, in all essentials, similar. Thus the question raised is also one of importance in England and Wales, where a very high percentage of criminal cases begin and end in the magistrates' court.In England and Wales the role of justices has evolved over the centuries since the Justices of the Peace Act 1361. In Scotland the system is of more recent growth. But in both countries the systems as they now exist have very few equivalents outside the mainland of Britain. There are two features in particular which distinguish them from almost every trial regime to be found elsewhere. In addressing these features I shall ignore professional stipendiary magistrates who, despite their important role in Glasgow and a number of major English and Welsh cities, are irrelevant to the present issue. I shall adopt, without repeating, the account given by my noble and learned friends Lord Hope of Craighead and Lord Rodger of Earlsferry of the relevant Scottish legislation, of the present litigation between the parties and of the litigation between them which preceded it. And I shall, for convenience, assume that the District Court at Kirkcaldy will comprise a single lay justice (although sometimes in Scotland, as almost invariably in England, a lay bench may comprise more than a single justice).The first key feature of both systems is that justice is administered by (on the assumption made) a person usually lacking any formal legal education or qualification (although the beneficiary of some training). Such person, working voluntarily and without reward, is for all legal purposes a judge: carefully chosen as possessing qualities of judgment, fairness, open-mindedness and common sense; bound to observe a formal judicial oath; and irremovable (below the age of retirement) save for good cause. To such person, and to such person alone, it falls to decide what evidence should be believed and what doubted or rejected, and whether the charge is proved or not. The lay justice is the sole legal decision-maker in the district court.In very many of the cases which routinely come before district courts, involving minor traffic offences, petty thefts and assaults and matters of that kind, the issue in the case (if it is defended) will turn on the facts and raise no question of law. But it is, of course, true that in any case, however minor, a question of law may arise, whether on the admissibility of evidence, or the existence of evidence capable of corroborating other evidence, or the ingredients of a common law offence, or the interpretation of an offence-creating statutory provision or, after conviction, on the sentencing powers and duties of the court. In such instances the lay justice, lacking the legal expertise of those representing the prosecutor and the accused before the court, is at a disadvantage.The solution to this problem, developed and refined over many years, is found in the second key feature of both systems, the legally-qualified clerk to the court, who must in Scotland be an advocate or a solicitor. The task of the clerk is to advise the lay justice on any question of law arising during the case. It is the clerk's duty, as a professional person bound by an exacting code of conduct, to give advice to the best of the clerk's ability, with the independence and impartiality (and also the care) required of any solicitor or advocate expressing a professional opinion. The clerk represents no party and his approach should be wholly...See the full content of this document
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