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Clancy v Caird

16 May 2000
The issues

Court of Session Inner House Human Rights- Temporary Judges – Civil Disputes

The facts

The Claimant claimed under Article 6 of the European Convention in that everyone is “entitled to a fair hearing by an independent and partial tribunal”. His claim was heard by a temporary Judge. His appointment was terminable at will. The Claimant relied on Starrs v Procurator Fiscal in which the Inner House had held that a temporary Judge was not independent or impartial for the purpose of Article 6/1.

The decision

However, unlike Starrs which concerns a temporary Sheriff, there was no express power to remove a temporary Judge. His appointment was terminable in the same way as any other Crown Servant. A temporary Judge is unlike temporary Sheriffs who are appointed for longer periods and are not subject to removal during those periods. They undertook a relatively small part of the work of the Court of Session and of a limited range. Their use could not reasonably be regarded as giving rise to a perception of undue Crown influence over the Court.

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