Scottish Human Rights Law Group

Structural impartiality of temporary judges in the High Court of Justiciary/Court of Session

Following the decision of the High Court in Starrs v. Ruxton (see above) a challenge was then raised as to the compatibility with the Article 6(1) ECHR of Temporary Judges appointed by the Scottish First Minster to the Court of Session deciding civil cases between wholly private parties.  The Inner House found that the act of the Scottish Ministers in continuing to provide funds for the employment of temporary judges constituted a reviewable act for the purposes of the Scotland Act sufficient to raise a devolution issues as to its compatibility with respect for litigants Article 6(1) ECHR fair trial rights.   

The Court held, however, that there was sufficient independence from the Executive (Temporary Judges being assigned duties by the Lord President solely in civil matter) and sufficient security of tenure in their three year appointment for these judges to be considered to comply with the requirements of Article 6(1) ECHR. Lord Coulsfield also that, in any event, the circumstances of the case were such as to indicate a waiver of any rights the parties might have had to object to the temporary judge assigned to their case.

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