Archibald McHale & Ian McNaughton & Kenneth Dickson v. Procurator Fiscal, Dumbarton & Procurator Fiscal, Paisley & Her Majesty's Advocate [2006] HCJAC 74

The convictions by temporary sheriffs here took place, and the sentences were imposed, prior to the commencement of the Scotland Act 1998. It was not disputed that, had the convictions taken place and the sentences been imposed after the commencement of the Scotland Act, they would have been invalid on the ground that a temporary sheriff was not an independent and impartial tribunal as guaranteed by article 6 of the European Convention on Human Rights and the prosecutions to conviction and sentence would therefore have been ultra vires of the Lord Advocate in terms of section 57(2) of the Scotland Act. The appeals here raised the undecided question whether the same result would follow in a case where the conviction and sentence took place before the commencement of the Scotland Act, either on the basis that the provisions of the Convention could be applied retrospectively to proceedings that took place before the Lord Advocate's powers were circumscribed by reference to the Convention, or on the basis that at common law a temporary sheriff was not an independent and impartial tribunal, and that trial before and sentence by a temporary sheriff was therefore contrary to the principles of natural justice.