A barrister is to mount a legal challenge against the Lord Chancellor's control of judiciary members, such as magistrates and recorders, when the Human Rights Act is introduced in England and Wales.
Neil Addison announced his plan after a challenge by Livingston law firm, Keegan Smith, on the validity of Scotland's 130 temporary sheriffs, failed on a technicality. Apparently the notice lodged was not worded correctly and the court refused to allow a redraft to be submitted.
However, Keegan Smith partner, Iain Smith, says his firm will appeal. And Edinburgh firm, Adams, is said to be bringing a similar action.
Both claim that temporary sheriffs cannot offer a fair trial before an “independent tribunal”, as demanded by Article 6 of the act, because they are hired and fired by the Lord Advocate.
As reported in The Lawyer (26 July), Addison claims the Lord Chancellor's position as a government minister and head of the judiciary opens the door for a similar challenge here when the Human Rights Act is introduced next year.
The Lord Chancellor's Department is considering a Judicial Appointments Commission which, commentators say, would ward off challenges, but that it is not a high government priority. It maintains such problems would not arise in the rest of Britain.
Addison says: “Although Scottish law is different, the Human Rights Act is going to apply across the UK and the reasoning is the same.
“Every lay magistrate would be open to challenge. They will have to decide whether they are independent. If they decide that they are and the trial goes ahead and a conviction obtained, we would appeal.
“The question is whether they can be truly independent since they can be removed by a government minister.”