Scottish Court of Session Decisions

Brown & Ors, Re Judicial Review [2003] ScotCS 133 (9 May 2003)

 

OUTER HOUSE, COURT OF SESSION
P710/01 P720/01	OPINION OF LORD MACKAY OF DRUMADOON in the Petitions of LESLIE BROWN and ROBERT BRUCE WRIGHT Petitioners; for Judicial Review of decisions of the Scottish Ministers   ________________

First Petitioner: Targowski, Q.C., Hughes; Trainor Alston, Coatbridge

Second Petitioner: Bovey, Q.C., Anderson; Andersons

Respondents: Docherty, Q.C., Crawford; R. Henderson, Solicitor to the Scottish Executive

9 May 2003

Introduction

1. Leslie Brown ("the first petitioner") is currently detained in H.M. Prison, Edinburgh. Robert Bruce Wright ("the second petitioner") is currently detained in H.M. Prison, Barlinnie. The petitioners are both the subject of extradition proceedings under the Extradition Act 1989 ("the 1989 Act"). Those extradition proceedings have been instituted at the request of the Republic of Estonia.
2. On 7 March 2001, the Procurator Fiscal at Edinburgh presented a petition to the Sheriff of Lothian and Borders at Edinburgh, seeking the arrest of the first petitioner in terms of sections 8(1)(b) and 9 of the 1989 Act. Such a warrant was granted and the first petitioner was arrested the same day. On 8 March 2001, at Edinburgh Sheriff Court, the first petitioner was committed to prison, in terms of section 9 of the 1989 Act. On 26 March 2001, following upon the receipt of an extradition request from the Republic of Estonia for the return of the first petitioner to Estonia, the Scottish Ministers ("the respondents") issued an Authority to Proceed in respect of the first petitioner, in terms of section 28(1A) of the 1989 Act. On 29 March 2001, the first petitioner again appeared in Edinburgh Sheriff Court. On that occasion Sheriff Bell committed the first petitioner to custody, in terms of the Authority to Proceed and pursuant to the provisions of section 9 of the 1989 Act.
3. On 18 March 2001, the respondents gave the first petitioner notice that they were contemplating making an Order, under section 12 of the 1989 Act, for the surrender of the first petitioner to the Estonian Authorities. The first petitioner was advised of his right to make representations to the respondents. He submitted such representations in writing. Those representations touched briefly on the first petitioner's medical condition. Having considered the representations, the respondents made an Order dated 12 June 2001, for the return of the first petitioner to Estonia.
4. Since March 2001 the first petitioner has been detained in prison, in pursuance of Sheriff Bell's Order of 29 March 2001. The first petitioner has a history of heart disease. Since March 2001, the first petitioner has been examined by a number of heart specialists, including Dr David Northbridge and Dr Iain Findlay, both of whom were instructed by the solicitors who formerly acted for the first petitioner in the present proceedings. Dr Findlay prepared a report dated 12 October 2001 and Dr Northbridge a report dated 23 November 2001. Both these reports are lodged as productions for the first petitioner (Nos. 6/5 and 6/8 of process). The two reports are referred to in the first petitioner's pleadings. Further reports by Dr Findlay, dated 31 January 2002 and 6 September 2002 (Nos.7/15 and 7/16 of process), are lodged as productions for the respondents, although I understand that these particular reports were commissioned by the first petitioner's former solicitors. The report dated 6 September 2002 comments on the contents of two medical reports on the first petitioner's medical condition, which were commissioned by the respondents. The latter two reports were prepared by Professor Cobbe, Professor of Medical Cardiology at the University of Glasgow, and Dr S G Potts, consultant psychiatrist. Both reports are lodged as productions for the respondents. The productions for the respondents also contain an Extract Consultation Note, relating to a consultation held on 17 June 2002, which was attended, by amongst others, Professor Cobbe, the senior and junior counsel who act for the respondents in the present proceedings, and officials of the respondents.
5. On 12 November 2001 the solicitors then acting for the first petitioner wrote to the respondents. They requested that the respondents review their decision to make the Order dated 12 June 2001, ordering the first petitioner's return to Estonia. The respondents were invited to do so in light of the medical information about the first petitioner that was by then available. That medical information included the report by Dr Findlay dated 12 October 2001. The respondents agreed to review their earlier decision of 12 June 2001. The reports subsequently prepared by Dr Northbridge and Dr Findlay, to which I have referred, were also submitted to the respondents. By letter dated 21 October 2002 (No.7/19 of process) the Scottish Ministers advised the first petitioner's former solicitors that they had confirmed their decision to order the first petitioner's return to Estonia. In that letter, the respondents indicate that they accept that the first petitioner suffered an interior myocardial infarction on 29 December 1996 and that he continues to suffer from angina. It is clear from the letter, however, that by 21 October 2002 the respondents had accepted the advice of Professor Cobbe that the first petitioner is fit to travel to Estonia and that they were satisfied that adequate medical provision, including appropriate medication, could be made available for the first petitioner in Estonia.
6. The history of the extradition proceedings against the second named petitioner is similar. I need not rehearse it in great detail. It is sufficient to record that the respondents ordered the second petitioner's return to Estonia on 12 June 2001, that they were invited to reconsider that decision, in the light of medical information relating to the second petitioner, and that by letter dated 26 June 2002 the respondents wrote to the second petitioner's former solicitors informing them that the respondents had decided to uphold their decision of 12 June 2001, ordering the return of the second petitioner to Estonia.
7. Following intimation of the Orders dated 12 June 2001, the petitioners each raised judicial review proceedings against the respondents. In each instance an order for service of the petition was granted on 18 June 2001. In each petition a first hearing was fixed for Wednesday 26 September 2001. For various reasons, the first hearings did not take place on 26 September 2001 or indeed on a variety of subsequent diets that were fixed for the first hearings in both petitions.
8. One of those occasions was 18 March 2003, when the two petitions first called before me. On that date the first petitioner was unrepresented. He had in his possession virtually no papers relating to his petition. It was clear that he was not in a position to advance any substantive arguments in relation to the issues raised in his petition, notwithstanding the advice he appears to have received from the Court at previous hearings that he might be required to do so. On 18 March 2003, the second petitioner was represented by junior counsel. Junior counsel informed me that he had only recently been instructed by a firm of solicitors who themselves had only recently commenced acting for the second petitioner. A discharge of the diet of first hearing was sought on the basis that junior counsel had not had the opportunity to prepare submissions.
9. On 18 March 2003, I agreed to discharge the first hearings in both petitions, having taken the view that for different reasons it would not be possible for appropriately prepared submissions to be advanced on respect of either petitioner. I fixed a new diet for the first hearings as 15 April 2003 and the two following days. I also indicated that between 18 March 2003 and 15 April 2003 I would convene such procedural hearings as might be necessary to ensure that the first hearings were able to proceed on 15 April 2003. I subsequently held two procedural hearings, at one of which I heard submissions relating to the receipt of Minutes of Amendments seeking to amend the petitioners' pleadings in each of the petitions. Later in this Opinion, I deal further with the issue of amendment.
10. On 15 April 2003 both petitioners were represented by senior and junior counsel, as were the respondents. At the outset of the hearing Mr Targowski, senior counsel for the first petitioner, moved me to discharge the diet for the first hearing in respect of the first petitioner's hearing, on the basis that the first petitioner had now lodged a petition to the nobile officium, seeking the recall of two earlier interlocutors pronounced in the petition, namely an interlocutor of Lord Macfadyen dated 27 November 2001 and an interlocutor of Lord Carloway dated 29 January 2003. Mr Targowski informed me that it had not proved possible to convene a Division to hear the petition to the nobile officium before 15 April 2003 and that, in his opinion, it was necessary for such a hearing to take place, before the first hearing in respect of the first petitioner's petition could proceed. In these circumstances, Mr Targowski had not prepared any submissions in connection with the first hearing in first petitioner's petition. Senior counsel for the respondents opposed any discharge of the first hearing. In the event, I decided that the diet should proceed, at least to the extent of hearing submissions on behalf of the second petitioner. Those submissions were heard on 15 and 16 April 2003.

The issue of recusal

11. At the conclusion of the hearing on 16 April 2003 it was agreed to adjourn the first hearings until Tuesday, 13 May 2003, when it was intended that submissions would be made on behalf of the first petitioner and the respondents. After the Court rose on 16 April 2003, I was informed by the Deputy Principal Clerk of Justiciary that the solicitor and counsel now acting for the first petitioner had been making enquiry during the course of the day about a bail appeal at the instance of the first petitioner, which I had dealt with in December 2001. Enquiries made by officials within the Justiciary Office had confirmed that such a bail appeal had taken place and had been heard by me.
12. Accordingly I put the petitions out for a further procedural hearing on 24 April 2003. At the outset of that hearing I explained the factual position as I understood it. I explained that when I had first started reading through the papers in both petitions I had had some recollection of having seen one or other of the cases at a bail appeal. I explained that I had mentioned that to my clerk, but indicated that I had not considered it necessary for me to take any further action. My involvement as the judge, who had conducted any bail appeal, was obviously known to the parties involved.
13. I explained I had no detailed recollection of the submissions made at the bail appeal, other than that they had involved submissions to the effect that the first petitioner should be released from custody to enable him to undergo some medical treatment that he required. I informed parties that when the issue of the bail appeal had been brought to my attention on 16 April 2003, I had made a point of refraining from reading the notes that I had taken during the bail appeal. These had been retained within the Justiciary Office.
14. Mr Targowski explained that during the course of the submissions on 16 April 2003 he had had occasion to look through certain papers which the first petitioner's former solicitors had handed on to the solicitors now acting for the first petitioner. These papers had included a draft of a petition for bail, seeking to review my decision to refuse bail. I was informed by Mr Targowski that following the hearing on 16 April 2003 there had been some discussion between counsel for the first petitioner and the respondents as to what had happened during the bail appeal. It was a matter of agreement that during the hearing of the bail appeal the reports by Dr Findlay and Dr Northbridge (Nos. 6/5 and 6/8 of process) had been before me. Those medical reports had also been before the respondents, when they dealt with the request to reconsider their decision of 12 June 2001 to order the return of the first petitioner to Estonia. The question now arose as to whether I should decline to hear the first hearing in the petition brought by the first petitioner. Reference was made to Mellors, Petitioner 2002 S.C.C.R. 107 at para.45. It was submitted that it had been necessary for me to form a view about certain of the contents of the medical reports, Nos.6/5 and 6/8 of process, during the course of the bail appeal. The same reports were to be referred to and relied upon during the submissions that Mr Targowski would seek to advance in the course of the first hearing. Reference would be also made to other reports prepared by Dr Findlay. Moreover, in taking their decision to re-affirm their original decision to order the first petitioner's return to Estonia, the respondents had clearly relied on the views of other doctors and rejected those of Dr Northbridge and Dr Findlay. In these circumstances, I was invited to recluse myself from dealing with the first hearing in the first petitioner's petition.
15. Junior counsel for the second petitioner acknowledged that the position was obviously different as far as the second petitioner was concerned. There was no suggestion that I had had any prior contact with the second petitioner's petition or with his being remanded in custody. It was submitted, however, that if I was minded to accede to the motion on behalf of the first petitioner, I should also discharge myself from any further involvement in the second petitioner's case. That was for practical considerations, because in almost all instances hearings in relation to the first petitioner's petition had taken place at the same time as hearings in connection with the second petitioner's petition. Moreover, it had been a matter of agreement that the first hearings in both petitions should take place at the same diet.
16. Senior counsel for the respondents opposed the motion on behalf of the first petitioner. It was accepted by him that during the bail appeal hearing the two medical reports, Nos. 6/5 and 6/8 of process, had been relied upon to vouch the proposition that the first petitioner suffered from angina and required angioplasty procedures. Senior counsel explained that he had before him a report of the bail appeal hearing and that a number of matters had been founded on by the Crown, in opposing the allowance of bail. These had included the serious nature of the offence involved in the extradition proceedings, the fact that the first petitioner had business connections with Estonia and had regularly travelled there, information in the possession of the Crown that the petitioner had used more than one passport, when travelling, and the possession of information by the Crown that gave rise to a concern that witnesses might be intimidated, were the first petitioner to be released on bail. Senior counsel for the petitioners submitted that if I was minded to decline any further involvement in the first petitioner's petition, then I should complete the first hearing in relation to the second petitioner's petition.
17. I was referred to a number of authorities by senior counsel for the respondents, including Sainte-Marie v France (1992) 16 E.H.R.R. 116, at paras.32 - 34, Hauschildt v Denmark (1989) 12 EHRR 266 and Nortier v The Netherlands (1993) 17 E.H.R.R. 273, Black v Scott Lithgow Ltd 1990 S.C. 322 and Clayton & Tomlinson "The Law of Human Rights" at para.11.225 and 11.226. During the course of the submissions, I also introduced into the discussion reference to Locabail (UK) Ltd v Bayfield Properties Ltd and Another [2000] 1 AllER 65 and Davidson, Petitioner 2002 SLT 1231.
18. In considering whether I should recluse myself from any further involvement in the petition at the instance of the first named petitioner the legal test that is applicable is quite clear. It is whether the fair-minded and informed observer, having considered the facts, would conclude that there is a real possibility that I am biased (Davidson v Scottish Ministers 2002, Lord Justice Clerk at paras. [25] and [26] and the other authorities there referred to). In applying that test I require to bear in mind that the question involved in the test must be addressed objectively. If there are grounds that would be sufficient to create in the mind of a fair-minded and informed observer reasonable doubt about my impartiality in addressing the issues, which are to be raised during the First Hearing in the first petitioner's petition, then I should disqualify myself. Equally importantly, if there is any real ground for doubt as to existence of such grounds, that doubt should be resolved in favour of recusal (Lochabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, Lord Bingham of Cornhill at para. 25).
19. Authorities such as Sainte-Marie v France and Northier v The Netherlands illustrate that a judge's involvement in dealing with a pre-trial application for bail or a preliminary hearing, relating to other ancillary matters, will not normally provide an objective basis for doubt or concern as to the judge's ability to conduct a subsequent hearing on the merits of the case in an impartial manner. As Hauschildt v Denmark makes clear, however, the issue as to the existence or otherwise of an objective basis for concern depends on the circumstances of each particular case.
20. In the present case, I am informed by senior counsel for the first petitioner that he intends to rely on the contents of the medical reports of Dr Findlay and Dr Northbridge (Nos. 6/5 and 6/8 of Process), during the course of his submissions on behalf of the first petitioner. It is clear from the respondents' letter of 21 October 2002 (No. 7/19 of process), that those reports, and indeed further reports prepared by Dr Findlay, were before the respondents when they re-affirmed their decision of 12 June 2001 to return the first petitioner to Estonia. It is also clear from the letter of 21 October 2002 that, in reaching that decision, the respondents have chosen to rely on opinions from other doctors, and in particular opinions of Professor Cobbe, that are at odds with those of Dr Findlay and Dr Northbridge.
21. Although I have deliberately refrained from reading through the notes I took during the bail appeal at the instance of the first petitioner, I proceed on the basis that at the bail appeal hearing I had occasion to read through the two reports (Nos. 6/5 and 6/8 of process). Having done so, I obviously reached the conclusion that notwithstanding the views expressed in those reports, bail should be refused. The issues I required to consider at the bail appeal were different to those that will arise during the first hearing in the petition at the instance of the first petitioner. Nevertheless, one matter I may well have considered during the Bail Appeal was what weight I should place on the views of Dr Northbridge and Dr Findlay.
22. The issue with which I am now confronted, in light of the motion made by Mr Targowski, is not an easy one to resolve, not least of all because the respondents have argued that I should continue with the first hearings in respect of both petitions. Having given the matter full consideration, however, I have reached the conclusion that there is a measure of doubt as to how an independent observer would view my continued involvement in the petition at the instance of the first petitioner. In these circumstances, I have decided that I should withdraw from any further involvement in the petition at the instance of the first petitioner. In any event, that appears to me to the prudent course to follow, in light of the arguments, which Mr Targowski intends to advance on behalf of the first petitioner. If I were to remain involved in the case, it is possible that my decision to do so would itself become an issue in proceedings before other courts. Were that to happen, it could only lead to further delay in bringing to a conclusion the extradition proceedings involving the first petitioner. These have already proved to be protracted. I doubt whether it would be sensible to offer any possible excuse for such delay occurring.
23. Although the respondents moved me to conclude the first hearing in the petition at the instance of the second petitioner, I have reached the view that it would also be a mistake to do so. All along the plan had been to deal with the first hearings in the two petitions before the same Judge and at the same diet. It is sensible that plan should be adhered to. Although there are some factual differences between the two petitions, many of the legal issues that arise in the two petitions are identical. For these reasons, I intend to recluse myself from both first hearings.

The issue of amendment

24. I turn now to deal with the issue of amendment. As I have indicated, on 28 March 2003 I entertained motions on behalf of each petitioner that I should allow the receipt of Minutes of Amendment seeking to amend their respective pleadings. In the petition of the first petitioner, the Minute of Amendment was No. 14 of process and, in the petition of the second petitioner, No. 15 of process. Although the Minutes were not in identical terms, the opposition on behalf of the respondents to allowing the receipt of the two Minutes of Amendment was along similar lines. In the first instance, the Minutes sought to introduce averments attacking the legal validity of the decisions of Sheriff Bell dated 29 March 2001. Such an attack was incompetent, in that the petitioners had failed to exercise their statutory rights under section 11 of the 1989 Act to appeal to the High Court of Justiciary against Sheriff Bell's decisions. If, as was now alleged on behalf of each petitioner, Sheriff Bell had lacked competency to make the Orders he did, that was a matter that should have be raised before the High Court of Justiciary, whether under the statutory right of appeal or by recourse to that Court's supervisory jurisdiction.
25. The Minutes of Amendment were also opposed on the ground that they sought to re-introduce into the respective pleadings for the two petitioners a line of argument attacking the reasonableness of the Order dated 12 June 2001 relating to the petitioner in question. It was explained that before Lord Macfadyen, on 27 November 2001, counsel for each of the petitioners had consented to the sustaining of pleas on behalf of the respondents, which had the effect of refusing the petitions insofar as they challenged the reasonableness of the Orders to return the two petitioners to Estonia.
26. Receipt of the first petitioner's Minute of Amendment was also opposed because it sought to re-introduce an attack on the validity of the Order, based on procedural irregularity, which had also been departed from on 27 November 2001, and also because the Minute of Amendment was in very similar terms to a Minute of Amendment that Lord Carloway had refused to allow to be received by interlocutor dated 29 January 2003.
27. A further ground of opposition to the receipt of the Minute of Amendment on behalf of the second named petitioner was that it sought to introduce averments relating to the second petitioner's medical position, after 26 June 2002, the date on which the respondents had upheld their decision of 12 June 2001 to order the return of the second petitioner to Estonia.
28. Senior counsel for both petitioners explained that their instructions were that neither petitioner had authorised that any concessions be made by their respective counsel at the hearings before Lord Macfadyen on 27 November 2001. Neither petitioner had been present in Court on that occasion. Neither had become aware of the concessions made before Lord Macfadyen, or the terms of the interlocutors pronounced by him, until some months later. Subsequently, at the outset of the hearing on 15 April 2003, Mr Targowski produced a letter dated 4 April 2003, addressed by the first petitioner's former solicitors to his current solicitors, in which the former solicitors state that they neither sought nor received the first petitioner's instructions to make any concession on his behalf (No. 6/9 of process).
29. Having taken time to consider the submissions I heard on 28 March 2003, I pronounced interlocutors allowing the Minutes of Amendment to be received, but under deletion of the averments seeking to attack the validity of the Orders of Sheriff Bell dated 29 March 2001. I excluded those averments, because in my opinion there is force in the submissions on behalf of the respondents that any appeal against or challenge to the validity of those Orders is a matter for the High Court of Justiciary, whether under the provisions of the 1989 Act or, possibly, in exercise of its supervisory jurisdiction.
30. Otherwise, I allowed the Minutes of Amendment to proceed. I did so for a number of reasons. Firstly, it appeared to be to open to serious question whether any concessions on questions of law, or on questions of mixed fact and law, which had been made by a counsel, outwith the presence of his client and without his client's instructions, could be binding on the client in extradition proceedings. When I allowed the Minutes of Amendment to be received, it was only a matter of allegation that the counsel involved had acted without instructions. The letter dated 4 April 2003 was not at that stage before me. I took the view, however, that investigating the allegations that counsel had acted without instructions might take some time. Indeed the procedure by which such allegations might be investigated is by no means clear. No suggestion was made that any question as to the extent of the first petitioner's counsel instructions on 27 November 2001 had been raised before Lord Carloway. There is also the issue of whether there is any reason why any concessions that were made could not now be withdrawn.
31. Bearing in mind the delay that might be involved in investigating the circumstances in which the concessions came to be made on 27 November 2001, that it is in the public interest that the extradition proceedings should be concluded as soon as practicable and the fact that the respondents will not suffer any significant prejudice in their being required to defend the reasonableness and the procedural regularity of the various decisions they have taken, in respect of the two petitioners, it appeared to me that it would be in the interests of justice to allow the Minutes of Amendment to be received, under deletion of the paragraphs relating to Sheriff Bell's Orders.
32. The respondents subsequently lodged Answers to the Minutes of Amendment. The petitioners adjusted. At the commencement of the hearing on 15 April 2003, senior counsel for the respondents intimated that the respondents would not insist on their third and fifth pleas in law in answer to the petition of the first petitioner. During the hearing on 15 April 2003, I allowed the pleadings in both proceedings to be amended in terms of the Minutes of Amendment and Answers as adjusted.