O'Neill No 2 (Appellant) v Her Majesty's Advocate (Respondent) (Scotland)
Lauchlan (AP) (Appellant) v Her Majesty's Advocate (Respondent) (Scotland)
Lord Hope, Deputy President
JUDGMENT GIVEN ON
13 June 2013
Heard on 29 and 30 April 2013
(Instructed by Drummond Miller LLP)
Dorothy Bain QC
Douglas Fairley QC
(Instructed by The Appeals Unit, Crown Office)
(Instructed by Fitzpatrick and Co)
Dorothy Bain QC
Douglas Fairley QC
(Instructed by The Appeals Unit Crown Office)
LORD HOPE (with whom Lord Kerr, Lord Wilson, Lord Hughes and Lord Toulson agree)
"3. This Part of this Schedule applies in relation to devolution issues in proceedings in Scotland."
The expression "devolution issue" is defined in paragraph 1 of Schedule 6, which provides:
"1. In this Schedule 'devolution issue' means-
(a) a question whether an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament is within the legislative competence of the Parliament,
(b) a question whether any function (being a function which any person has purported, or is proposing, to exercise) is a function of the Scottish Ministers, the First Minister or the Lord Advocate,
(c) a question whether the purported or proposed exercise of a function by a member of the Scottish Government is, or would be, within devolved competence,
(d) a question whether a purported or proposed exercise of a function by a member of the Scottish Government is, or would be, incompatible with any of the Convention rights or with EU law,
(e) a question whether a failure to act by a member of the Scottish Government is incompatible with any of the Convention rights or with EU law,
(f) any other question about whether a function is exercisable within devolved competence or in or as regards Scotland and any other question arising by virtue of this Act about reserved matters."
"In paragraph 1 of Schedule 6 (devolution issues), after sub-paragraph (f) insert –
'But a question arising in criminal proceedings in Scotland that would, apart from this paragraph, be a devolution issue is not a devolution issue if (however formulated) it relates to the compatibility with any of the Convention rights or with EU law of
(a) an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament,
(b) a function,
(c) the purported or proposed exercise of a function,
(d) a failure to act.'"
"a question, arising in criminal proceedings, as to –
(a) whether a public authority has acted (or proposes to act) –
(i) in a way which is made unlawful by section 6(1) of the Human Rights Act 1998, or
(ii) in a way which is incompatible with EU law, or
(b) whether an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament is incompatible with any of the Convention rights or with EU law."
"(1) A convertible devolution issue is a question arising in criminal proceedings before the relevant date which –
(a) is a devolution issue;
(b) would have been a compatibility issue had it arisen on or after that date; and
(c) has not been finally determined before the relevant date.
(2) But a devolution issue arising in criminal proceedings before the relevant date is not a convertible devolution issue if –
(a) the issue has been referred, or a determination of the issue has been appealed, to the Supreme Court under Schedule 6 to the 1998 Act; and
(b) the hearing of the reference or appeal commences before the relevant date."
Article 3(1) provides that, subject to qualifications which do not apply in this case, a convertible devolution issue becomes a compatibility issue for all purposes on the relevant date.
"6. In additional ground 15 of his grounds of appeal Mr O'Neill complained about the comments of the trial judge, Lord Pentland, at the end of the first phase of the trial. We expressed our views on this ground in paragraphs 81 to 88 of this court's opinions. Mr Carroll submitted that the challenge raised a devolution issue as the Lord Advocate had persevered with the prosecution in the face of what was evidence of an unfair trial.
7. For the reasons which we stated in those paragraphs we did not think that the points which Mr Carroll raised were arguable. We adhere to that view. But we recognise that the splitting of the trial into two phases before two juries and the resulting presentation of previous convictions and the judge's remarks at the end of the first phase were very unusual circumstances. We are satisfied that it is appropriate to give leave to appeal on this ground."
(a) the issue
"2. Mr McVicar on behalf of Mr Lauchlan sought leave to argue before the Supreme Court that the decision of that court in Ambrose v Harris (2011 SLT 1005) had the result that the starting point in the assessment of reasonable time under article 6 of the European Convention on Human Rights ("ECHR") was not, as the Appeal Court had held in O'Neill v HM Advocate (2010 SCCR 357), the stage when an accused person appeared on petition but the earlier stage when the accused was interviewed by the police under caution in the exercise of their powers under section 14 of the 1995 Act. Mr Carroll on behalf of Mr O'Neill adopted Mr McVicar's submissions.
3. We have decided to grant leave to appeal on this ground. We set out our reasoning in paragraphs 25-29 of this court's opinions but recognise that the issue raised is one which arises from statements in a decision of the Supreme Court on which that court may wish to provide further guidance."
(b) the facts
"WL Look if you're going to charge me with something charge me I've had enough.
DC2 I didn't mention, I have not mentioned charging you with anything.
WL If not give this up.
DC2 No I'm interviewing you William okay. I intend to carry out the interview with or without your co-operation I intend to carry out the interview."
"DC2 …I will ask you for a final time with the weight of the evidence against you and your friend knowing something about the disappearance of Allison McGarrigle will you help us to find her remains?"
There was no response, so the question was put to him again:
"DC2 I'm not asking you at this stage if you killed her. I'm not asking you at this stage if you know who killed her. I'm asking you at this stage whether or not you would consider helping us to find her remains. It's a separate question. Are you? ….Are you prepared to help us to find Allison McGarrigle yes or no? Answer that one question I'll put to you …. I'll finish the interview and put the tape off. So you don't, you're not interested in helping us. Canny go any further than that Wullie"
"DC1 …. If you did not have anything to do with Allison McGarrigle's death you have no reason not to speak to us, would you agree wi' that? You're not, your refusal to speak to us. The only reason I can think of is that you have something to do with her death. or that someone very close to you had something to do with her death and that out of loyalty you will not tell us. Which is it? Which is it William? Unless you can come up with another reason why you should refuse to speak to us about it. It's got to be one of those two. So which is it? Convince me otherwise."
As the interview was about to end these final questions were put (Appendix p 528, MS p 856):
"DC2 Did you murder Allison McGarrigle? Did you?
DC1 Did you kill Allison McGarrigle? Were you present when someone else did?"
Lauchlan did not answer them. He remained silent.
"O/N You're going to charge me in't you? You'd be as well just charging me and taking me to court.
DC1 Charlie, Charlie, we're here, we've explained to you what we're doing and we're speaking to you right. It's as simple as that. … I am hoping that you might find it within yourself to give us some assistance, right. We're no up here to crucify Charlie O'Neill."
"I'm asking you quite bluntly Allison McGarrigle's dead, you're involved in her death, you're the only person that can say how much or how little involvement you have but from the information that we have here there is no doubt whatsoever that you are involved in her death….I'm giving you the opportunity sitting here in this room the noo tae say tae me, this is what happened, this is how it happened, it may even be why it happened ah don't know and here is what you need to know. Because its no going away Charlie, it'll never go away. It'll never go away."
Sometime later he was asked (Appendix p 597, MS p 925): "Did you kill her Charlie? Was she just too much bother for you?" He made no comment in reply. In the course of the next question he was told directly that the reason why he would not answer questions was quite simple: "Because you killed her." At the end of the interview one of the interviewing officers said (Appendix p 602, MS p 930):
"Right what we'll do at the minute Charlie is we'll stop the interview. We'll need to go and seek some advice."
(c) articles 6(1) and (3)(c)
"First, the right of a criminal defendant is to a hearing. The article requires that hearing to have certain characteristics. If the hearing is shown not to have been fair, a conviction can be quashed and a retrial ordered if a fair trial can still be held. If the hearing is shown to have been by a tribunal lacking independence or impartiality or legal authority, a conviction can be quashed and a retrial ordered if a fair trial can still be held. If judgment was not given publicly, judgment can be given publicly. But time, once spent, cannot be recovered. If a breach of the reasonable time requirement is shown to have occurred, it cannot be cured."
In Dyer v Watson  UKPC D1,  1 AC 379, 2002 SC (PC) 89, para 73, I said that these four rights can and should be considered separately, and that a complaint that one of them has been breached cannot be answered by showing that the other rights were not breached: see also Darmalingum v The State  1 WLR 2303, 2307-2308, per Lord Steyn. Delay is therefore to be seen as affording an independent ground of relief, whether or not there was prejudice or any threat to the fairness of the trial. The fact that an accused person has been convicted after a fair hearing by a proper court cannot justify or excuse a breach of his guarantee of a disposal of the charge against him within a reasonable time: Dyer v Watson, para 94.
"The correct starting point, when one is considering whether the person's Convention rights have been breached, is to identify the moment as from which he was charged for the purposes of article 6.1. The guidance as to when this occurs is well known. The test is whether the situation of the individual was substantially affected: Deweer v Belgium  2 EHRR 439, para 46; Eckle v Germany  5 EHRR 1, para 73. His position will have been substantially affected as soon as the suspicion against him is being seriously investigated and the prosecution case compiled: Shabelnik v Ukraine (Application No 16404/03) (unreported) given 19 February 2009, para 57. In Corigliano v Italy  5 EHRR 334, para 34 the court said that, whilst 'charge' for the purposes of article 6.1 might in general be defined as the official notification given to the individual by the competent authority of an allegation that he has committed a criminal offence, as it was put in Eckle's case 5 EHRR 1, para 73, it may in some instances take the form of other measures which carry the implication of such an allegation."
As the Appeal Court indicated when it gave leave to appeal on this ground, it is with reference to this passage that further guidance is needed, as the appellants' argument is that the date of their police interviews should be taken as being the date when the reasonable time begins:  HCJAC 51, paras 2 and 3.
"The manner in which article 6(1) and (3)(c) is to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case. The moment from which article 6 applies in 'criminal' matters also depends on the circumstances of the case, as the prominent place held in a democratic society by the right to a fair trial prompts the Court to prefer a 'substantive', rather than a 'formal', conception of the 'charge' contemplated by article 6(1)."
This passage suggests, as does the first sentence of para 62 in Ambrose, that the date when a person becomes subject to a "criminal charge" and the reasonable time begins is the same as that when the person is "charged" for the purposes of article 6(3)(c): see also Yankov and Manchev v Bulgaria (Applications Nos 27207/04 and 15614/05) (unreported) given 22 October 2009, para 18, where the starting point was taken to be the date when the police took a statement from the applicant in which he confessed to taking part in the commission of the offence and not the date when a formal charge was directed against him. In some cases the same date may be equally appropriate for each of these two purposes. But they are separate guarantees, and it is not obvious that the relevant date for each of them must be the same.
(a) the facts
"Having regard to your very serious records, and to the nature of the offence of which you stand convicted on the present indictment, it is clear that you are both evil, determined, manipulative and predatory paedophiles of the worst sort. Beyond that I intend to reserve any observations which I may have to make until the outcome of the next stage of the proceedings is known; that is after you have been tried on the remaining charges to which the advocate depute has made reference. I shall therefore adjourn all questions of sentence until Friday of next week, and I shall continue consideration of the Crown's motion made under section 210B of the 1995 Act for an assessment order."
(b) the issue
"Whether (i) the conduct of the trial judge can be said to have given rise to a legitimate concern as to the appearance of an absence of impartiality in the context of the appellants' right to a fair trial by an impartial tribunal in terms of article 6(1) of the European Convention on Human Rights; and (ii) if the answer to issue 6(i) is affirmative, whether the act of the Lord Advocate in persevering with the trial was incompatible with the appellants' rights under article 6(1)."
(c) the authorities
"The question is whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased."
In Lawal v Northern Spirit Ltd  1 All ER 187,  ICR 856, para 14 Lord Steyn said that the purpose and effect of the modification which it made to the common law were to bring the common law rule into line with the Strasbourg jurisprudence. Lord Bingham of Cornhill made the same observation in R v Abdroikov  UKHL 37,  1 WLR 2679, para 14 when he said that there is now no difference between the common law test of bias and the requirement under article 6 of an independent and impartial tribunal. In Szypusz v United Kingdom (Application No 8400/07) (unreported) given 21 September 2010, para 39 the Strasbourg court acknowledged that its jurisprudence had been taken into account in Porter v Magill, and set out that test. It also acknowledged, in para 40, the further guidance in Helow v Secretary of State for the Home Department  UKHL 62, 2009 SC (HL) 1,  1 WLR 2416 with regard to the attributes of the fair-minded observer as background to the issue that it had to decide.
"The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial."
"if, in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person's evidence with an open mind on any later occasion."
"He is judging the matter before him, as he is required by his office to do. If he does so fairly and judicially, I do not see that the fair-minded and informed observer would consider that there was any possibility of bias."
That was a case of civil litigation, but I do not think that there is any difference in principle between the position of a judge in a case of that type and the situation where it is said that there is apparent bias on the part of a judge in a criminal trial.