Overview of the Act Part 2: Duties on Public Authorities Section 10: Restriction on proceedings in respect of judicial acts
51.Courts and tribunals are public authorities for the purposes of section 6 and so require to comply with the duty imposed by section 6(1). Thus if a court or tribunal makes a decision that is unlawful under that section during, or at the conclusion of, a case before it, that judicial act may itself be challenged in further proceedings before a court or tribunal under section 7(1)(a).
52.There are established processes for challenging the judicial acts of courts and tribunals, and section 10(1) and (2) require that they be used. For example, it would not be appropriate for a sentencing decision taken at the conclusion of a criminal trial by the High Court of Justiciary, Scotland’s supreme criminal court, to be challenged by way of a civil action for damages in the sheriff court, which is lower in the judicial hierarchy. Any complaint that the High Court made an error while sitting as a trial court, including an error by acting unlawfully under section 6(1), should properly be dealt with by way of an appeal to the High Court.
53.Section 10(1) mentions the possibility of challenging a judicial act through any right of appeal or by application to the supervisory jurisdiction of the Court of Session. Subsection (2) makes clear that subsection (1) is not to be read as allowing an application to the Court’s supervisory jurisdiction that would otherwise be impermissible. For example, it is not to be taken to allow an application to be made to the Court of Session, Scotland’s supreme civil court, contesting a decision taken in an appeal in a criminal case by the High Court.
54.Paragraph (c) of section 10(1) allows for the possibility of court rules providing a new process to challenge a judicial act that is alleged to be unlawful under section 6(1) should a need be identified to have a process for that besides the ordinary processes referred to in paragraphs (a) and (b). Section 44 makes further provision about court rules.
55.Section 10(3) prevents damages from being awarded against a court or tribunal if the impugned judicial act was done in good faith (on the subject of damages generally, see section 8).