Ruddy & Ors v. Procurator Fiscal, Perth  & Anor (High Court of Justiciary Scotland) [2006] UKPC D2 (6 February 2006)

ADVANCE COPY

Privy Council Appeals DRA Nos 2,3 and 4 of 2005

(1) Kevin Ruddy
(2) Martin Robertson
(3) Seamus O’Dalaigh	Appellants
v.
(1) Procurator Fiscal, Perth
(2) Procurator Fiscal, Aberdeen	Respondents

FROM

	THE HIGH COURT OF JUSTICIARY
SCOTLAND
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JUDGMENT OF THE LORDS OF THE JUDICIAL 
COMMITTEE OF THE PRIVY COUNCIL

Delivered the 6th February 2006
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Present at the hearing:-

	Lord Bingham of Cornhill
	Lord Hope of Craighead
	Lord Rodger of Earlsferry
	Lord Carswell
	Lord Brown of Eaton-under-Heywood
	
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Lord Bingham of Cornhill

1.	I have had the benefit of reading in draft the opinion of Lord Rodger of Earlsferry.  I am in full agreement with it, and for the reasons which he gives I would make the order which he proposes.

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Lord Hope of Craighead

2.	My noble and learned friend Lord Rodger of Earlsferry has described the background to this case.  I adopt that description with gratitude and, very largely for the reasons that he gives, I too would dismiss these appeals.  I add these observations of my own in view of the general interest of the case and its importance.

3.	I doubt whether it was envisaged when the Scotland Act 1998 Act was enacted that your Lordships’ Board would engage in a detailed review of the practice and procedures of the High Court of Justiciary of the kind which it has been necessary for us to conduct in this case in order to answer the question whether the appellants are barred from seeking a suspension of the convictions and sentences on the ground that the prosecutor’s act which led to the orders being pronounced against them was incompatible with their Convention rights.  But it became obvious as soon as the first of the devolution issue cases reached the Judicial Committee that it would be necessary for the Board to decide questions which were ancillary to the determination of the devolution issue.  

4.	In Montgomery v H M Advocate, 2001 SC (PC) 1, having determined the devolution issue against the appellants, the Board ordered that publication of the proceedings in the appeal should be postponed until the conclusion of the trial: see p 31F.  In Dyer v Watson, 2002 SC (PC) 89, the question whether the appropriate remedy was to uphold the pleas in bar of trial was intimately bound up with the devolution issue, and an argument that it was incompetent for the Board to deal with it was rejected on this ground: see p 122, para 109.  In Mills v H M Advocate, 2003 SC (PC) 1, as in this case, the only question was what the consequences were of an accepted breach of the appellant’s article 6(1) Convention right: see p 12, para 33.  It was not suggested that the Board should not hear the appeal.  In R v H M Advocate, 2003 SC (PC) 21 the question as to the appropriate remedy was directly raised by the question whether the appellants were entitled to have the charges against them dismissed on the ground of unreasonable delay.     

5.	It can now be taken to be well settled, for the reasons that I gave in Mills, at para 34, that it is open to the Judicial Committee to determine under paragraph 13 of Schedule 6 to the Scotland Act not only the devolution issue itself but also questions which are preliminary to and consequential upon the determination of that issue.  In some cases these questions will raise no special features of Scots law or practice.  In others, of which this case is a clear example, the reverse will be true.  In such cases a thorough understanding of the Scottish system of criminal law will be essential: see my discussion of this point in Montgomery v H M Advocate, 2001 SC (PC) 1, 12-13.  The Board has had the advantage in this case of being able to draw not only upon Lord Rodger’s long experience both as a Law Officer and as Lord Justice General but also upon the depth and quality of his legal scholarship.

6.	The benefits of our being able to conduct this exercise under his guidance are plain to see.  But the case also underlines the importance of maintaining a strong presence of judges skilled in Scots criminal law when the Judicial Committee’s jurisdiction is transferred to the Supreme Court under section 40(4) and Part 2 of Schedule 9 to the Constitutional Reform Act 2005.  Venturing into the areas of law that Lord Rodger has revealed to us is not an exercise for the uninitiated.  It will be important too for the members of that court to appreciate that the devolution jurisdiction that is being transferred to it by the 2005 Act is a jurisdiction which is confined to dealing with devolution issues and with questions that are preliminary or ancillary to their determination.  The jurisdiction of the High Court of Justiciary as the court of last resort in all criminal matters in Scotland is, and must be seen to be, otherwise unaffected.    

7.	Turning to the question whether the appellants are barred by acquiescence from challenging the convictions and sentences, I would suggest that the first point that needs to be made, as we examine how the concept of acquiescence operates in the field of the criminal law, is that the context in which the issue falls to be considered is different from that where the issue arises in the context of private law.  As McBryde, The Law of Contract in Scotland, para 23.13, explains, there is only one principle in operation where waiver (which implies action) or acquiescence (which implies inaction) is relied upon in private law.  It is whether it is reasonable for one party to a contract to rely on the inference to be drawn from the other party’s conduct.  Gloag on Contract, 2nd ed, 281 acknowledges that it is difficult to formulate any definite rules in view of the vague nature of these concepts.  But, on his analysis, the party who alleges waiver or acquiescence must in some way have altered his position in reliance of the words or conduct of the other party.  Lord Keith of Kinkel put the matter more generally when he said in Armia Ltd v Daejan Developments Ltd, 1979 SC (HL) 56, 72 that the question whether a right has been waived or a party is barred by acquiescence from asserting that an obligation has not been fulfilled is a question of fact to be determined objectively upon a consideration of all the relevant evidence.  But on his approach too the answer to the question in the context of private law depends on the inferences that one party is entitled to draw from the other party’s words or conduct.

8.	The context in which the principles of waiver and acquiescence are relied upon in criminal proceedings is different.  Although the same words are used, the issue is not the same.  Criminal prosecutions are conducted in the public interest.  The factors that have guided judges as to how the principles should be applied in criminal cases are appropriate to that context.  As the Lord Advocate pointed out in his submissions to the Board in this case, these factors are heavily influenced by considerations of public policy.  The considerations operate at large, embracing the need to protect the accused against injustice on the one hand and the need to uphold public confidence in the rule of law on the other.  Public policy demands that the accused must be afforded a remedy against injustice.  But it also requires the court to balance the rights of the accused against the public interest.  That is why, in Watson v Scott (1897) 25 R (J) 53, 54, Lord Justice-Clerk Macdonald said that the question whether a suspension can be brought after delay is always a question of circumstances and discretion.  It is question of where the balance is to be struck, bearing in mind that the public interest lies in the finality of criminal proceedings.  The longer the accused delays in raising his objection when he has become aware of it, the stronger is the public interest in the argument that the objection has been acquiesced in.

9.	The way the law has developed since the early days favours a broad approach both to the question as to the circumstances in which the remedy of suspension is available and the circumstances in which the proceedings complained of have been acquiesced in.  Hume, Commentaries of the Law of Scotland respecting Crimes, vol 2, p 515 acknowledged that it did not prevent the suspension of a sentence that it had already in part been carried into execution.  As he explained, “It may still be set aside as to its remainder.”  But his discussion of the topic does not suggest that the part that had been carried out could be suspended as well as the part that had not been.  Today no one doubts that the remedy of suspension is available generally, without regard to whether or not the sentence has been carried out.  The fact that the remedy now extends to the sentence as a whole, and to the conviction as well if there are grounds for objecting to it also, has opened up questions which Hume did not have to deal with both as to the scope of the remedy and the effect of delay in seeking it.  

10.	Mr Davidson QC for the appellants submitted that the question whether the sentence or conviction had been acquiesced in was to be determined in the first instance by considering the nature of the defect in the proceedings that was complained of.  He referred to observations in Millar v Dickson, 2002 SC (PC) 30, 54, para 67, and in R v H M Advocate, 2003 SC (HL) 21, 72-73, para 155 that the prosecutor had no power to conduct proceedings which were incompatible with the appellants’ article 6(1) Convention rights.  He maintained that what the temporary sheriffs did in these cases had to be seen in that light.  He said that where the defect amounted to a fundamental nullity it was incurable, and that it was incapable for that reason of being acquiesced in.  In his submission, as the prosecutors had no power to conduct proceedings before them, the temporary sheriffs had no jurisdiction to conduct the proceedings either.  So what they did in each of these cases was a fundamental nullity.  

11.	The clearest example that Mr Davidson gave of the kind of defect that makes the quashing of a conviction inevitable was that which the court raised ex proprio motu in Hull v H M Advocate, 1945 JC 83.  In that case there had been a breach of the rule of criminal procedure that a criminal diet is, and must be made, peremptory and that the instance falls if the diet is not called or duly adjourned or continued on the date in the citation.  The first diet in that case had been adjourned to a date later than that which had been fixed for the second diet.  Although it was argued for the Crown that this was done with the consent of all parties (see p 35), Lord Justice-Clerk Cooper described non-observance of this rule at p 86 as involving a fundamental nullity requiring that any conviction which had followed to be quashed.  At p 88 he said that he was unable to formulate any grounds on which the defect in procedure might be allowed to pass with a mere expression of disapproval and a warning as to the future.

12.	Hull v H M Advocate, 1945 JC 83, was followed and applied in Law and Nicol v H M Advocate, 1973 SLT (Notes) 14, where the sheriff interrupted a trial on indictment instead of adjourning it to sentence one of the accused on a summary complaint.  Lord Justice General Emslie described what had occurred at p 14 as amounting to a fundamental nullity requiring the conviction to be quashed.  At p 15 he said that it was a deviation from the requirements of solemn criminal procedure which could only be fatal to the conviction.  Other examples of defects of that kind which might be cited include Aitkenhead v Cuthbert, 1962 JC 12, where the appellant pleaded guilty to a charge on a summary complaint which libelled an offence which did not exist.  Lord Justice General Clyde said at p 14 that the charge was fundamentally null, and that there was no alternative to quashing the conviction notwithstanding the fact that the point had not been raised in the court below or in the stated case.  Lord Guthrie said at pp 15-16 that the court had an inherent power by the common law to prevent injustice, and that one of the circumstances where it would exercise that power was where there had been a conviction on an incompetent charge.

13.	These cases must be contrasted with others referred to by Lord Rodger where, although the proceedings had been affected by what was described as a fundamental nullity, the court refused to suspend the proceedings.  The clearest examples are Storie v Friel, 1995 SLT 390, and Cassidy v Friel, 1995 SLT 391.  What these cases tell us, as Lord Macfadyen was right to point out in the High Court of Justiciary, is that the question whether acquiescence is available or is excluded is not to be determined by asking whether the decision in question was invalid or was a fundamental nullity: 2005 HCJAC 2; 2005 JC 210, 228, para 65.  The determining factor is the nature of the defect itself.  Is it of such a kind that the court has no alternative, irrespective of how the accused has reacted to it, but to set aside the sentence or to quash the conviction?

14.	I do not think that we need consider what kinds of defects there might be, outside the class of cases which have already been recognised, that might fall into the category of defects that are incurable.  I agree with Lord Macfadyen that there are no unequivocal criteria by which to recognise that kind of nullity: p 228, para 66.  As the Lord Advocate said, the expression “fundamental nullity” has no absolute meaning.  It all depends on whether the court is willing to grant the remedy sought.  

15.	It is sufficient for present purposes to say that the defect which is complained of in this case falls plainly outside the category of defects that have so far been recognised as incurable.  The fact that it was held in Millar v Dickson, 2002 SC (PC) 30 that it was a defect of a kind that could be waived is a powerful demonstration of this fact.  Waiver and acquiescence have this point in common in the criminal context, that they both support the inference that the accused has chosen not to object to the procedural defect.  It does not matter, for this purpose, whether the conduct that leads to this inference preceded or followed the proceedings to which the objection is being taken.  As can be seen from the decision in Hull v H M Advocate, 1945 JC 83, a defect which is incurable leads inevitably to the proceedings being quashed, irrespective of whether the accused agreed to the irregularity.  A defect which is not of that character can be waived, and it can also be acquiesced in.

16.	The fact that the Convention itself sets a time limit of six months within which proceedings must be taken is a further indication that the right to object the proceedings on the ground that they were in breach of the accused’s Convention rights may be lost if it is not exercised timeously.  Lord Anderson’s comment in Low v Rankine, 1917 JC 39, 41-42, that it is the duty of a person who is of opinion that he was unjustly convicted to seek a remedy as expeditiously as possible and that if he delays unduly he will be held barred by delay fits in well with this approach.  

17.	In my opinion Lochridge v Miller, 2002 SLT 906, was correctly decided.  I agree with the High Court of Justiciary that, although the act of the prosecutor in conducting the proceedings before a temporary sheriff was incompatible with their article 6(1) Convention rights, the appellants must be held by their delay in objecting to them to have acquiesced in the convictions and sentences that were the product of those proceedings.  I would dismiss these appeals.    

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Lord Rodger of Earlsferry

18.	The Board has before it three bills of suspension in which the appellants are the complainers.  The bills arise out of the decision of the High Court in Starrs v Ruxton 2000 JC 208 that a court presided over by a temporary sheriff did not constitute an independent and impartial tribunal in terms of article 6(1) of the European Convention on Human Rights and Fundamental Freedoms.  That decision was handed down on 11 November 1999.

19.	The complainer Martin Robertson was convicted of assault in a trial before a temporary sheriff on 10 August 1999.  The sheriff deferred sentence and on 30 September 1999 he admonished Mr Robertson.  On 26 October 2001 Mr Robertson lodged a bill of suspension challenging his conviction and sentence on the ground that his trial had been presided over by a temporary sheriff and that, by virtue of section 57(2) of the Scotland Act 1998, it had therefore been incompetent for the procurator fiscal to proceed with the prosecution.

20.	On 12 October 1999 the complainer Seamus O’Dalaigh pled guilty before a temporary sheriff to a contravention of section 5(1)(a) of the Road Traffic Act 1988.  The sheriff fined him £200 and disqualified him from holding or obtaining a driving licence for 15 months.  Mr O’Dalaigh appealed against his sentence and on 20 January 2000 the appeal court reduced the period of disqualification to 12 months.  On 11 October 2000 he paid the fine in full.  On 5 December 2001 he lodged a bill of suspension raising the same point as the complainer Robertson.

21.	On 8 September 1999 the complainer Kevin Ruddy pled guilty before a permanent sheriff to contraventions of sections 103(1)(b) and 143(1) and (2) of the Road Traffic Act 1988.  The sheriff adjourned the case and eventually, on 20 October 1999, a temporary sheriff imposed a probation order in respect of the first charge.  It was a condition of the probation order that he should do 80 hours’ unpaid work in the community.  The sheriff also disqualified Mr Ruddy from driving for three years.  He admonished him on the second charge and ordered the endorsement of his licence in respect of both charges.  The complainer performed some of the community service, but proceedings were eventually taken against him for breach of the condition of his probation order.  In the course of those proceedings in November 2001 Mr Ruddy’s agent took the point that the probation order had been imposed by a temporary sheriff and was therefore invalid.  On 3 December 2001 the sheriff continued a diet of debate to await the outcome of a bill of suspension which the complainer was to lodge.  On or about 11 February 2002 a bill of suspension was lodged but, since it did not seek interim suspension, the present bill was lodged on 4 March 2002.  It raises the same issue relating to the temporary sheriff who imposed the sentence.

22.	The Crown have not sought to challenge the decision in Starrs v Ruxton.  The Lord Advocate therefore accepted that in each of these cases the procurator fiscal had not had any power to proceed with the prosecution in front of the temporary sheriff.  Moreover, he accepted that this applied as much to placing information before the sheriff for purposes of sentence as it did to leading evidence or accepting a guilty plea.  It follows that, if the bills of suspension had been lodged soon after the decision in Starrs v Ruxton was announced in November 1999, the Crown would have had no answer to them and the High Court would have passed the bills.

23.	The decision in Starrs v Ruxton was given extensive coverage in the media.  The use of temporary sheriffs stopped immediately, but practitioners were quick to seize on the decision in order to challenge convictions and sentences in trials or hearings in which temporary sheriffs had presided between 20 May and 11 November 1999.  The appellants and their advisers could therefore have followed that course in November 1999 or soon after, but in fact it was not until almost two years later that the first of the three bills was lodged.  It is significant that in each case the appellants and their advisers appear to have waited until the decision of this Board in Millar v Dickson 2002 SC (PC) 30 was announced on 24 July 2001 before lodging their bills.  In these circumstances the Crown argued that the High Court should refuse to pass the bills on the ground of the complainers’ acquiescence.  The complainers’ counsel contended in reply that acquiescence could not be pleaded where the convictions and sentences were null and void because they had been imposed in a situation where the procurator fiscal, as master of the instance, had had no power to proceed.

24.	The position of the appellants is strikingly similar to the position of the complainer in Lochridge v Miller 2002 SLT 906.  Mr Lochridge was tried before a temporary sheriff, the trial extending over three days between 12 April and 24 May 1999.  On the final day, four days after the Scotland Act came into force, he was convicted of a contravention of section 5(2) of the Misuse of Drugs Act 1971.  On two occasions sentence was deferred for good behaviour and eventually, on 24 October 2000, he was admonished.  On or about 19 October 2001 he lodged a bill of suspension on the ground that the temporary sheriff had presided at his trial.  The Crown advanced a plea that the bill should be refused because the complainer had acquiesced.  The High Court sustained the plea and dismissed the bill.  Lord Coulsfield formulated their general approach to the plea of acquiescence in this way, at p 907, para 5:  

“In our opinion, the decisions in Storie v Friel 1993 SCCR 955 and Cassidy v Friel 1995 SLT 391 clearly establish that in Scots law a complainer may be barred by the lapse of time from challenging a conviction or a sentence, even where the ground of challenge is one of competence.  In some of the other cases, including Low v Rankine 1917 JC 39 and Love v Wilson 1993 SCCR 325, which is referred to in Cassidy v Friel, there were circumstances which rendered it difficult or impossible to ascertain, after a lapse of time, what exactly had occurred at the time of the conviction.  In such cases, it may be that some principle additional to mere acquiescence is involved:  but in the two cases to which we have referred the court did not rely on any factors other than the unexplained failure to challenge the incompetent decision within a reasonable time.  The Scottish cases, including some earlier decisions referred to in Renton & Brown Criminal Procedure at para 33-09, stress that a person seeking to challenge the validity of a conviction or sentence is under a duty to act promptly.  We agree with the submission of the advocate depute that if, as has been held in Millar v Dickson, waiver is not, in appropriate circumstances, incompatible with the Convention equally the application of a principle of acquiescence, in appropriate circumstances, should not be incompatible.  Accordingly, the question is, in this case, whether the circumstances do show that the complainer must be taken to have acquiesced in the conviction.”

25.	The High Court went on to consider whether the complainer had been entitled to wait until the issue of waiver had been finally decided by this Board before making his challenge.  They held that he had not.  Lord Coulsfield explained the reasoning of the court in this way, at p 908, para 7:

“The information given to us by the Crown shows quite clearly that there were many persons affected by the invalidity of the appointments of temporary sheriffs who were immediately aware of the situation and alive to its implications and prepared to take action.  As we have noted, the Scottish cases emphasise on the need to challenge a conviction or sentence promptly (see, for example, the opinion of Lord Anderson in Low v Rankine).  In the circumstances of this case, it does not seem to us that the fact that the complainer or his solicitor did not know that a challenge would be unopposed, or that it would succeed, or even that they thought that it would not succeed, should excuse the failure to raise the challenge promptly, once the grounds were clearly established by the decision in Starrs v Ruxton.  It was obvious from that point that there was an opportunity to challenge the conviction.  The grounds on which a challenge could be made were fully known and the fact that there might be a counter-argument does not in our view, provide a sufficient reason for not taking action.  The failure to attempt to take advantage of the opportunity with reasonable promptness should, in our view, prevent the challenge being made now.  In these circumstances, we have come to the conclusion that this Bill should be dismissed.”

26.	In the present proceedings before the High Court the Crown relied heavily on the decision in Lochridge.  The appellants’ counsel contended, however, that the reasoning of the High Court in that case was incompatible with the reasoning of the Board in R v HM Advocate 2003 SC (PC) 21.  A Court of Five Judges was therefore convened to consider the bills.  The court refused the bills but granted leave to appeal.

27.	The issue which divides the parties is quite specific.  It is common ground that in each case the procurator fiscal’s conduct of the proceedings in front of the temporary sheriff was incompatible with article 6(1) of the Convention.  The Board is not therefore being asked to determine the question whether the procurator fiscal’s exercise of his function on behalf of the Lord Advocate was incompatible with the complainers’ Convention rights in terms of para 1(e) of schedule 6 to the Scotland Act.  But, as Lord Hope of Craighead held in Mills v HM Advocate 2003 SC (PC) 1, 13B-C, para 34, the Board has jurisdiction to decide questions which are consequential on the determination of a devolution issue.  That must include the question whether an appellant is barred from seeking a remedy even though he can show that the procurator fiscal’s exercise of his function was incompatible with the appellant’s Convention right.

28.	The appellants do not dispute that procedure by way of bill of suspension constitutes an effective remedy for the violation of an accused’s article 6(1) right to an independent and impartial tribunal.  Starrs v Ruxton shows that it is.  But even an effective remedy does not require to be kept open indefinitely.  A time limit for taking proceedings is not incompatible with the Convention.  Under article 35(1) an application to the European Court of Human Rights must be made within six months from the date when the final domestic decision was taken.  Similarly, under section 7(5) of the Human Rights Act 1998 proceedings against a public authority for an alleged violation of Convention rights must be brought within the period of one year beginning with the date when the act complained of took place, or such longer period as the court or tribunal considers equitable having regard to all the circumstances.  This is subject to any rule imposing a stricter time limit in relation to the procedure in question.  Since the Scotland Act does not specify any time within which proceedings are to be taken, the ordinary rules relating to the procedure adopted to vindicate the right in question must apply.  In this case the applicable rules are those relating to bills of suspension.  I shall therefore have to consider how lapse of time and acquiescence operate in relation to the remedy of suspension.

29.	Bills of suspension are short, straightforward documents which can be drafted quickly and lodged soon after the allegedly unlawful conviction or sentence.  They can therefore bring prompt relief from the effects of that conviction or sentence.  The bill will generally seek interim suspension of the conviction or sentence and interim liberation, if the complainer has been imprisoned.  The bill is put before a single judge of the High Court who may grant interim suspension or liberation and, if the single judge refuses the application, it can be renewed before three judges.  I rehearse these well-known features of the procedure simply to emphasise that it is designed to be, and usually is, set in motion soon after conviction or sentence.  In this way it ensures, so far as is possible and appropriate, that the complainer does not actually suffer the effects of the allegedly unlawful order of the lower court before the High Court can rule on its legality.

30.	In the early days, it was indeed thought that a bill of suspension could not be brought after the complainer had undergone any sentence, since there were no longer any proceedings to suspend.  Erskine, Institute of the Law of Scotland 4.3.8, considered that suspension was the means of staying “a sentence condemnatory, that hath not received execution.”  Hume, Commentaries vol 2, p 515, and Alison, Practice of the Criminal Law of Scotland, p 31, were presumably of the same view since they considered that the fact that a sentence “has already in part been carried into execution” does not prevent its suspension (emphasis added).  But in Gillies v Jeffrey (1839) 2 Swinton 454 the High Court rejected the respondent’s submission that suspension was incompetent because the complainer had undergone his sentence.  Three years later, in Skinner v Adamson (1842) 1 Broun 67, 76 Lord Justice Clerk Hope had “no doubt that, in criminal proceedings, a party is entitled to suspend a sentence, which has been put in execution against him, were it for no other purpose than to clear his character.”  In Russell v Colquhoun (1845) 2 Broun 572, 579, referring to Skinner, he said that all the judges had held the right of suspension to be clear in law, even where the sentence had been executed.  The Lord Justice Clerk went on to say that “The end and object of a process of suspension and liberation is not merely to procure to the suspender freedom from imprisonment, but to rescind and annul the unlawful sentence, of which he complains.”  In Jameson v Pilmer (1848) J Shaw 238, 239 he described the law on this point as “well settled.”

31.	It is therefore beyond question, more than a century-and-a-half later, that in the present cases suspension is not excluded merely because the complainer Robertson has been admonished, or because the complainer Ruddy has already performed some of the community service or because, in the case of the complainer O’Dalaigh, he has paid the fine and the period of disqualification from driving is over.

32.	Once it was recognised that suspension was competent even after the complainer had undergone the sentence, the inevitable question arose:  was there anything to prevent a party from lodging a bill of suspension years, perhaps decades, after the unlawful conviction or sentence?  The court confronted the issue in Smith v Forbes and Low (1848) Arkley 508.  On 11 October 1847 the complainer was convicted of trespass under the Game (Scotland) Act 1832 and ordered to pay a fine of ten shillings and a sum by way of expenses, failing which he was sentenced to be imprisoned for a month.  The special statutory procedure for such a prosecution had not been followed, however.  On conviction the complainer asked for the sentence not to be put into effect immediately.  This was allowed.  On 21 October his agent wrote to the clerk to the justice of the peace, questioning the legality of the proceedings and asking for information about the way they had been conducted.  This was refused.  The complainer was imprisoned for failing to pay the sums on 29 November 1847 and released on 29 December.  He presented his bill of suspension on 10 February 1848.  The respondent argued that, since the complainer had not protested at the time of his conviction and had now served his sentence, suspension was incompetent.  By a majority, the court rejected the respondent’s argument and passed the bill.

33.	Lord Justice Clerk Hope commented, at p 517:

“The moment it is held that a suspension is competent, after execution, it is difficult to say within what time it may be brought, if there had been no acquiescence.  No doubt there is a limit, but that is for the Court to fix, under a reasonable consideration of the circumstances of the case.  But, here holding, as we must, in a question of competency, that the suspender suffered under an illegal sentence, that he frequently intimated his dissatisfaction with the proceedings, I think we cannot hold there has been any acquiescence.  The fact that he had advice, and obtained a copy of the proceedings while in jail, might be very important in an action of damages, but cannot affect this case.”

34.	The Lord Justice Clerk appears to have envisaged that there were two possible preliminary objections to suspension:  either that the complainer had acquiesced or that he had not lodged his bill of suspension within what the court considered to be a reasonable time in the particular circumstances of the case.  Given the comparatively short time that had elapsed before the complainer lodged his bill in that case and given that he had been in gaol for part of the time, the Lord Justice Clerk seems to have been satisfied that the bill was brought within a reasonable time.  And he did not find in the other circumstances any proper basis for inferring that the complainer had acquiesced.  Lord Moncreiff, at p 516, also confined his comments to the plea of acquiescence.  He drew attention to the fact that the complainer’s agent had continuously objected to the legality of the proceedings and that the prosecutor’s agent had withheld the proceedings.  It could not be held that there was no complaint of the legality of the imprisonment because the complainer did not take a formal protest before he went to jail.  He came out and still said nothing, but this silence did not here amount to acquiescence after his demand for information.  “There may be cases where, by long silence, acquiescence may be implied, but I do not think this is one.”  Lord Medwyn, dissenting, asked himself, at p 516, whether the suspension had been brought “tempestive”, timeously, and concluded that the complainer was too late.

35.	In the earlier case of Skinner v Adamson 1 Broun 67, 76, having said that a bill could be brought after the sentence had been put into execution, Lord Justice Clerk Hope went on:

“But it does not follow that, after acquiescing, that is, giving up his legal right of complaint, he can apply for redress.  In judging of this, the whole facts must be looked into, both the nature of the execution, and the steps which followed.”

36.	The complainer had had legal advice in connexion with an appeal about four months after his conviction but his bill of suspension was not lodged until some eleven months after that.  The court refused to entertain the bill.

37.	It has come to be accepted that suspension must be brought within a reasonable time.  The law is so stated, for instance, in Trotter, Summary Criminal Jurisdiction according to the Law of Scotland, p 66.  Although in Smith v Forbes and Low Lord Justice Clerk Hope appeared to draw a distinction between the need to bring proceedings within a reasonable time and acquiescence, in practice the two matters are interrelated.  It is sometimes said that, by itself, delay is not enough to bar suspension.  Properly understood, that is correct.  But where a party delays and so allows more than a reasonable time to elapse without presenting a bill, that may be enough of itself for the court to infer that he had acquiesced and had decided not to challenge the conviction or sentence.  After all, the court may conclude, if the complainer had intended to mount a challenge, he would have done so within a reasonable time.  What constitutes a reasonable time for these purposes depends on the circumstances.  A party who has no other serious distractions might reasonably be expected to take proceedings within a period which would not be reasonable for someone who had, for example, been stricken by illness, whose child had been seriously ill or died, whose house had been burned down or who had been called away on active military service.  In such cases the court would take account of these circumstances in deciding whether the complainer should be taken to have acquiesced.

38.	More often than not, however, the respondent relies on a combination of delay and other circumstances - the respondent points to a period of delay in raising proceedings and some action or inaction on the part of the complainer which is capable of showing that he had acquiesced in the conviction and sentence.  The court considers whether the appropriate inference from the delay and the other circumstances is that the complainer had so acquiesced.  Merely taking an appeal on another point - nowadays by stated case - is by no means necessarily fatal to a subsequent suspension.  This was established in the early cases of Philip v Earl of Rosslyn (1833) 5 Scottish Jurist 433 and Skinner v Adamson and that approach is routinely applied by the High Court today.  But the fact that an appeal had been taken on a particular point could be one aspect of a wider picture indicating that the complainer had been otherwise content not to challenge his conviction or sentence.  Similarly, the fact that the complainer raises proceedings only after hearing about a point being argued successfully in another case “would be no ground of itself for barring the present complaint, but is important as implying that the advocator had previously abandoned his right of review”:  Skinner v Adamson 1 Broun 67, 76.

39.	The plea of acquiescence should not be regarded as merely some kind of technical trap for the unwary complainer.  In Low v Rankine 1917 JC 39, 41 – 42, Lord Anderson stated the doctrine in a more positive way:

“A general rule, it seems to me, has been laid down by a number of authorities to the effect that, if a person convicted of crime is of opinion that he has been unjustly convicted, then his duty is to seek a remedy against the alleged unjust conviction as expeditiously as possible;  and that, if he delays unduly to seek the remedy, he will be held barred by the delay from proceeding to raise the suspension which he attempts to bring.”

40.	By ensuring that complainers consider what to do at an early stage and stick to their decision, the law encourages them to act expeditiously and decisively.  The brocard “vigilantibus non dormientibus iura subveniunt” does more than stress the need for finality in legal proceedings:  it makes the point that the rights which people enjoy under the law are more likely to be effective if they are exercised promptly rather than tardily.  In former times, a suspension brought after a man had been scourged might open the door to civil redress but it could never undo the pain and suffering which he had endured.  By contrast, prompt resort to a bill of suspension could stop the punishment before it was carried out.  The same applies to an unlawful sentence of imprisonment today.  When the sentence has been served, the damage has been done.  That damage can be avoided or minimised by prompt resort to suspension.  Similarly, while a fine can be repaid, there is no way to recover the period during which the complainer was disqualified from driving.  In all such cases prevention is very much better than cure.  So, even from the point of view of complainers in general, the plea of acquiescence serves a legitimate purpose.

41.	In a case like the present the plea also serves a wider public interest.  Here the summary proceedings taken by the procurators fiscal were unobjectionable in all respects except for the hearings before the temporary sheriffs.  If the cases had called before a permanent sheriff, there could have been no possible ground of complaint.  So, as counsel for the appellants accepted, if the convictions and sentences had been suspended promptly, in the special circumstances of these cases it would have been appropriate for the High Court to remit the case to the sheriff court to proceed as accorded.  In other words, unless prevented from doing so on the ground of oppression (McFadyen v Annan 1992 JC 53;  Normand v Rooney 1992 JC 93), if so advised, the Crown would have been entitled to resume the proceedings before a properly constituted court.  The court could then have dealt with the appellants appropriately in the event of conviction.  In that way both the complainers’ interest in having the proceedings before the temporary sheriff suspended and the public interest in having complaints duly prosecuted and an appropriate penalty imposed on conviction would have been satisfied.  By choosing not to lodge their bills of suspension until after they had served either the whole, or at least part, of their sentences, the complainers O’Dalaigh and Ruddy would in effect have tied the hands of the prosecutor and the sheriff.  For example, if called upon to consider sentence, the sheriff could scarcely have ignored the fact that Mr O’Dalaigh had already been subject to a period of disqualification from driving, even though it had been null and void.  Disqualification cannot be made retrospective.  So, it would seem, the court could not impose an appropriate penalty.  Where disqualification was compulsory, still greater potential complications are obvious.  These and similar problems, which can easily be envisaged, show that, if it is to work in the interests of both the complainer and the public, suspension should be sought promptly.  Therefore, where someone delays and acquiesces, the court is generally justified in refusing to pass his bill of suspension.

42.	The appellants contended, however, that, even if the court considered that these general considerations would have made it desirable to refuse the bills in the present cases, on a proper analysis it could be seen that the plea of acquiescence could not apply.  While the Crown sought to draw an analogy between an accused person’s waiver, in advance, of a right to an independent and impartial tribunal and his subsequent acquiescence in proceedings which violated that right, the appellants argued that it was not possible to reason from waiver to acquiescence in this way.  Where the accused knew both that the temporary sheriff would not be an objectively independent and impartial tribunal in terms of article 6(1) and that he could insist on the Crown not proceeding before that sheriff, but nevertheless decided that the trial should go ahead, he would have validly waived his article 6(1) right.  Therefore, if the procurator fiscal proceeded in that situation, he would not be acting incompatibly with the accused’s article 6(1) right and so the proceedings would be valid.  By contrast, where, as here, the accused had not waived his article 6(1) right, the proceedings had been a nullity and could not be validated by any subsequent acquiescence by the accused.  As counsel accepted, this would mean that at any time in the future anyone convicted or sentenced by a temporary sheriff between 24 May and 11 November 1999 could apply to have the conviction or sentence suspended.

43.	Although the appellants founded particularly on passages in the judgments of Lord Clyde and myself in R v HM Advocate 2003 SC (PC) 21, 55, para 101, and 72 – 73, para 155, these really add little or nothing to the description of the effects of section 57(2) of the Scotland Act in the case of temporary sheriffs which Lord Bingham of Cornhill gave in Millar v Dickson 2002 SC (PC) 30.  Adopting the argument of counsel for the appellants, he said, at p 42, para 27:

“I accept the argument for the accused on this point.  The Lord Advocate had no power to act in a way which infringed any Convention right of the accused.  By continuing to prosecute the accused before a tribunal which was not independent and impartial he infringed the right of the accused to have the criminal charges against them determined by a tribunal which was independent and impartial.  Unless the accused validly waived their entitlement to trial before an independent and impartial tribunal, he acted in a way which section 57(2) denied him power to do.”

From this passage it is clear that, since the appellants did not waive their entitlement to trial before an independent and impartial tribunal, the procurator fiscal acted in a way that section 57(2) denied him power to do.  It follows that any conviction returned and any sentence imposed by the temporary sheriff can properly be regarded in law as null and void.

44.	Nevertheless, it is equally clear that the convictions returned and the  sentences imposed on the appellants are to be regarded as valid unless and until they are suspended by the High Court at the appellants’ instance.  Had Mr O’Dalaigh gone along to the sheriff clerk’s office after the decision in Starrs v Ruxton and demanded that the officials repay him the amount of his fine, they would have been under no obligation to do so, unless his conviction and sentence had been suspended.  Similarly, he would not have been entitled to resume driving during the period of disqualification unless and until his sentence had been suspended.  In the proceedings for breach of the condition of his probation Mr Ruddy’s agent rightly saw that his client could not rely on the invalidity of the probation order unless he had first suspended his sentence.  Likewise, a person imprisoned on the basis of a sentence pronounced by a temporary sheriff would require to suspend the sentence before he could bring civil proceedings for wrongful imprisonment (whatever their prospects of success might be):  Maclellan v Miller (1832) 11 S 187;  Gilchrist v Anderson and Walker (1838) 1 D 37;  Russell v Colquhoun (1845) 2 Broun 572, 579.  For the same reason, so long as their convictions and sentences had not been suspended, the appellants would have tholed their assize and could not have been prosecuted again for the same offence.

45.	It is precisely because the convictions and sentences have legal effect unless and until they are suspended that a bill of suspension begins:  “HUMBLY MEANS AND SHEWS your Servitor, AB – Complainer - That the complainer is under necessity of applying to your Lordships for suspension of a pretended conviction and/or sentence dated on or about …” (emphasis added).  The complainer needs to have the conviction and sentence suspended since otherwise they remain in force.  What the complainer therefore has, but may give up or lose by acquiescence, is a right to complain about the pretended conviction or sentence and to have the court suspend it.  That was the analysis adopted long ago by Lord Justice Clerk Hope in Skinner v Adamson 1 Broun 67, 76 when he commented that a suspension could be brought after the sentence had been put into execution, “But it does not follow that, after acquiescing, that is, giving up his legal right of complaint, he can apply for redress.”  In the circumstances of that case Lord Mackenzie concluded, at p 77, that “all redress has been lost.”  The Lord Justice General (Cullen) applied the same analysis in the present case when he said, 2005 JC 210, 218, para 25:

“It is reasonably clear that acquiescence refers to conduct, typically but not exclusively delay, from which it should be inferred that a complainer has given up his right to challenge his conviction or sentence.”

I respectfully agree with that approach.

46.	In his opinion, 2005 JC 210, 226, para 60, Lord Macfadyen drew attention to the difficulties of extending the precise reasoning which underpins the plea of waiver to the plea of acquiescence.  The effect of waiver is to prevent there being any violation of the accused’s article 6(1) rights.  Acquiescence is not, and could not be, some form of retrospective healing of the breach which has taken place.  To that extent, I accept the appellants’ argument.  But it does not matter since, according to the accepted analysis, acquiescence operates somewhat more simply.  A person who acquiesces in his conviction and sentence, even though he knows that they are open to challenge, thereby loses his right to have the High Court redress the wrong by suspending the conviction and sentence.  Without that redress, the conviction and sentence stand, even though there has been an infringement of the convicted person’s article 6(1) rights.  The same would apply to anyone who was barred from raising proceedings because of the time limit in section 7(5) of the Human Rights Act 1998.  In such circumstances the policy of the law is to favour finality and stability.

47.	The appellants submitted, however, that the defect in their cases was properly regarded as “a fundamental nullity” and that a complainer could never be barred by acquiescence from suspending a conviction or sentence which was fundamentally null.  The expression “fundamental nullity” is to be found in the opinion of Lord Justice Clerk Cooper in Hull v HM Advocate 1945 JC 83, 86 and it has been commonly used in modern cases.  A variant is to describe the proceedings as “funditus null”.  Other expressions are to be found in the books:  for example, in Duncan v Ramsay (1853) 1 Irv 208, 212, Lord Wood spoke of “a radical error … in the proceedings, which no supposed acquiescence of the appellant can bar him from objecting to….”  But, whatever the exact expression, it is intended to describe a defect which is regarded as so fundamental that, whether or not the party has noticed it, the High Court must take account of it and grant the appropriate remedy.  The classic example is the rule that the instance falls if the diet is not adjourned to a fixed date or if the diet is not called on the due date.  Any subsequent proceedings involve a fundamental nullity and must be set aside:  HM Advocate v Fraser (1852) 1 Irv 1 and Hull v HM Advocate.  Although highly technical, the rule has often been enforced, even in recent years.

48.	Significantly, however, in Storie v Friel 1993 SCCR 955 the High Court sustained a plea of acquiescence and refused a bill of suspension where the sheriff had continued a case for more than the three weeks permitted by section 380 of the Criminal Procedure (Scotland) Act 1975 and had then fined the complainer and disqualified him from driving.  The argument for the complainer was that in these circumstances the adjourned proceedings were fundamentally null.  Despite this, the High Court held that, by paying the fine and delaying for more than two-and-a-half years before lodging his bill, the complainer had shown that he was willing to accept the sentences.  In Cassidy v Friel 1995 SLT 391 where the facts were similar but the period of delay was only some ten months, the High Court followed the decision in Storie v Friel and refused the bill.  In Shields v Donnelly 2000 JC 46, 50, the Lord Justice General indicated obiter that, where proceedings had to be regarded as being “tainted by a fundamental nullity”, the High Court might nevertheless refuse a bill of suspension if the complainer had acquiesced in any conviction or penalty.  In para 5 of the decision in Lochridge v Miller quoted at para 24 above, the High Court followed Storie v Friel and Cassidy v Friel.  In my view, it was right to do so.

49.	Several of the judges below pointed out that it is impossible to extract from the authorities criteria by which to identify what counts as a fundamental nullity.  This is because the term “fundamental nullity” is conclusionary in nature:  it is used to describe those defects for which the court will always supply a remedy.  On a slightly modified version of Lord Macfadyen’s analysis, 2005 JC 210, 227, para 62, it is clear that in the case of some defects which prima facie justify suspension the conviction or sentence will be allowed to stand if the person entitled to challenge it acts in such a way as to give rise to an inference that he has accepted or acquiesced in it;  in the case of other defects the court will suspend the conviction or sentence even if the complainer has accepted or acquiesced in it.  As Lord Macfadyen commented, at p 228, para 66, the policy of the law determines into which category a defect falls.

50.	Into which category, then, does the defect in the present proceedings fall?  In principle, if suspension is to be permitted despite the complainer’s acquiescence, the defect must be sufficiently serious to overcome the policy of the law in favour of upholding convictions and sentences which the complainer has accepted and which have been treated as valid for a considerable period.  In assessing the significance of the defect in the present cases, and building on the approach of the High Court in Lochridge v Miller 2002 SLT 906, 907, para 5, Lord Macfadyen commented, at p 228, para 66:

“… it would be odd if it were acceptable [for an accused person] to give up his objection to having his case determined by a temporary sheriff, provided he did so in advance of the decision, but impossible for him to do so if the ground for regarding the decision as invalid came to his attention only after it had been made.  If waiver can be effective in this context, as is settled in Millar v Dickson, I do not understand on what basis it can be said that there is any compelling policy reason for precluding the equivalent plea of acquiescence, where knowledge of the defect is only acquired after the decision has been made.”

51.	I would respectfully endorse that observation. The plea of acquiescence is therefore open to the Crown in these cases if the facts justify it.

52.	Despite a rather tepid submission to the contrary by Mr Davidson QC, on behalf of Mr Robertson and Mr O’Dalaigh, the undisputed circumstances do indeed warrant a finding of acquiescence in all three cases.  All of the appellants and their agents must have been well aware of the implications of the decision in Starrs v Ruxton in November 1999.  If they had intended to challenge the convictions and sentences, they could have done so at that time or soon after.  Instead of proceeding with reasonable promptness, however, they waited for around two years before doing so.  During that time none of them took any public step which suggested that they were disputing the legality of their conviction or sentence.  Indeed Mr O’Dalaigh and Mr Ruddy took steps which indicated that they accepted that their convictions and sentences were lawful.  Having regard to all the circumstances, I am satisfied that the High Court was entitled to hold that the appellants had acquiesced in their convictions and sentences.  That being so, I would hold that they had lost their right to redress by suspension.  I would accordingly dismiss the appeals.

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Lord Carswell

53.	I have had the advantage of reading in draft the judgment prepared by my noble and learned friend Lord Rodger of Earlsferry, and I agree entirely with all that he has there set out.  I wish to add only a few brief observations by way of supplement on one aspect of the appeal.

54.	The essence of the appellants’ case was the defects in the proceedings were such that their convictions and sentences were fundamentally null.  In consequence, it was argued, the doctrine of acquiescence did not apply and, notwithstanding the lapse of time before they were challenged, it could not properly be held that the appellants had acquiesced in them.  

55.	The concept of nullity and the purported distinction between void and voidable acts have given rise to a great deal of judicial and academic discussion, with decisions and dicta which are not easy to reconcile: see, eg, Wade & Forsyth, Administrative Law, 9th ed, pp 300-307.  It is neither necessary nor profitable to examine these or to attempt a reconciliation, and it is something of a relief to be spared this task, for I find the concept of nullity more than a little elusive, not to say slippery.  I think that the approach which has been adopted by the High Court avoids the difficulties and provides a more workable basis for deciding the consequences to which such defects should be held to give rise.  

56.	This approach, which has been encapsulated in paragraph 44 of Lord Rodger’s judgment, is analogous to that which the law now takes to the distinction traditionally made between mandatory and directory provisions in statutory interpretation.  It focuses on the consequences which are taken to ensue when a conviction or sentence is affected by different types of defect.  One starts from the proposition that the order of a court cannot be disregarded, even if it can be established that it was defective, but it will operate as made unless and until it is set aside.  As Lord Radcliffe said in Smith v East Elloe Rural District Council [1956] AC 736 at 769-770:

“An order, even if not made in good faith, is still an act capable of legal consequences.  It bears no brand of invalidity upon its forehead.  Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.”

57.	In that passage Lord Radcliffe was referring to a compulsory purchase order, but I have no doubt that the same principle applies to the order of a court.  In some cases, as Lord Rodger has set out, the conviction or sentence will be allowed to stand, even though it could have been successfully challenged by timeous application, if the person entitled to challenge it has acted in such a way as to give rise to an inference that he has accepted or acquiesced in it.  In others the nature of the defect may be such that the order of the court will be set aside even if the complainer could be said in the circumstances of the case to have acquiesced in it.  For the reasons set out by Lord Rodger in paragraphs 45 to 48 of his judgment I agree that the defect in the present case falls into the former category.

58.	In paragraph 25 of his opinion Lord Rodger mentioned the possible equation between waiver, which operates in advance of a decision, and acquiescence, which operates after it has been given.  He referred to that part of Lord Macfadyen’s judgment in the present case (para 60) in which he drew attention to the difficulties of extending the precise reasoning which underpins the plea of waiver to the plea of acquiescence.  It would nevertheless be strange, as Lord Macfadyen pointed out at paragraph 66, if it were acceptable for an accused person to waive his objection in advance but not to acquiesce in the decision if its defective nature came to his attention after it had been made.  The common factor is that in either case he is representing, expressly or tacitly, that the court is acceptable to him.  It is not necessary for present purposes to go further into any differences which may be said to exist between waiver and acquiescence, but they have similar factual springs and there is much to be said for regarding them as having some equivalence.

59.	I would accordingly dismiss the appeals.

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Lord Brown of Eaton-under-Heywood

60.	I have had the benefit of reading in draft the opinion of my noble and learned friend Lord Rodger of Earlsferry.  I am in full agreement with it, and for the reasons which he gives I too would dismiss these appeals.