Scottish High Court of Justiciary Decisons

LIEUWE HOEKSTRA and JAN VAN RIJS and RONNY VAN RIJS and ENDRIK VAN RIJS v. HER MAJESTY'S ADVOCATE [2000] ScotHC 30 (7th March, 2000)

[1] On 20 February 1997 the appellants and others were convicted at the High Court of Justiciary at Dunfermline of being knowingly concerned in the attempted fraudulent evasion of the prohibition in force in respect of the importation of cannabis resin, contrary to section 170(2)(b) of the Customs & Excise Management Act 1979. Thereafter they were sentenced to terms of imprisonment. They appealed against conviction and sentence. After sundry procedure the court (the Lord Justice Clerk, Lords Kirkwood and Hamilton) allowed the previously lodged grounds of appeal to be replaced by new grounds. As it was understood that the hearing of the appeals in relation to these new grounds would be likely to take several weeks the court appointed the appeals to be presented in stages, the first stage to be restricted to the particular grounds specified in the court's interlocutor of 7 July 1999.

[2] When the hearing of the appeals in relation to these grounds began on 23 November 1999 (before a court comprising Lords McCluskey, Kirkwood and Hamilton) the appellants, through their counsel, presented submissions in relation to matters raised in devolution minutes and petitions. Submissions were also made in relation to certain of the grounds of appeal. The court issued an Opinion of the Court dated 28 January 2000 and pronounced an interlocutor of the same date, dismissing certain devolution minutes and refusing certain grounds of appeal. The Opinion of 28 January 2000 deals more fully with all these matters. As the Opinion makes plain the court heard and considered inter alia certain submissions relating to the application in the circumstances of these cases of certain Articles of the European Convention on Human Rights. The applicants applied for leave from the court to appeal to a judicial committee of the Privy Council against the decisions of the court in relation to the devolution issues. On 31 January 2000 leave was refused.

[3] We were informed at the bar that the appellants have applied for special leave to appeal to the Judicial Committee in terms of the Judicial Committee Devolution Issue Rules Order 1999. That application has not yet been determined. In the interlocutor of 28 January 2000 it was provided that the appeal should proceed on 6 March 2000 in respect of the remaining grounds of appeal. However, on the afternoon of Friday 3 March each of the appellants lodged a minute in the same terms. The minutes, as lodged, all contain the paragraph in the following terms:

Each minute concluded with the words:

Dr. Sjöcrona opened the submissions by saying that he was surprised to find that the bench comprised the same three judges who had sat on the previous occasion and that he had expected a differently constituted court to consider the matter of disqualification raised in the minutes lodged on 3 March. When it was pointed out to him that paragraph 5 was in terms inviting: "the bench currently comprising the court of appeal to disqualify itself" he accepted that it might be appropriate to amend the wording of the minutes in this respect, but it was also submitted that the minutes had been lodged as a courtesy to the court and that it would be quite appropriate to make a motion of this character at the bar without lodging any minute. His position was plain, namely that the decision as to whether or not the court as presently constituted should be disqualified from hearing further submissions in the appeal should be taken by a court consisting of other judges and not including any of the judges currently sitting. If he were to be required to address this court as now constituted on the question as to whether or not the judges currently sitting should sit to determine the appeal, then he would do so but only under protest. He referred to the case of Debled v. Belgium in 1995. The other counsel adopted the same position, although Mr. Gebbie, on behalf of the first appellant, initially took the position that it was the Scottish practice for any judge who was invited to decline jurisdiction to decide the matter himself, leaving it to any party to appeal if dissatisfied with the decision. Ultimately he appeared to adopt the same position as the other counsel. He referred to Bradford v. McLeod 1985 S.C.C.R. 379, 1986 S.L.T. 244. He also submitted that as the court now sitting was an appeal court there would be no right of appeal from its decision and that that circumstance pointed to the need for this bench to send the issue of declinature to be resolved by a differently constituted bench.

[4] In my view, in a case in which the judge does not consider that he must accede to the motion and decline to sit on the case there are two initial steps that have to be considered. In the first place the judge who has been invited to decline jurisdiction, but does not consider that he must do so, may have to consider and decide if he should invite those appearing before him to make submissions on the matter or if he should simply decline to hear that motion and rule that it should be heard by another competent judge. If he concludes that he should himself hear submissions on the matter he must direct himself properly as to the law to be applied. In Bradford v. McLeod the Lord Justice Clerk said:

Accordingly, at the second stage, he must endeavour to apply the law properly to the circumstances. He has a duty to hear the case if not disqualified. He may not decline to exercise jurisdiction without proper cause. Reference is made to the case of Locabail (UK) Ltd. v. Bayfield Properties Ltd. [2000] All E.R. 65, in the Court of Appeal. In the Opinion of the Court appearing at page 76 it is said that it is generally desirable that disclosure be made to the parties in advance of the hearing of any matter that could arguably be said to give rise to a real danger of bias; and the opinion continues:

The law that he has to apply in Scotland is clear from Bradford v. McLeod and also from Regina v. The Bow Street Metropolitan Stipendiary Magistrate and Others ex parte Pinochet Ugarte (No. 2) [1999] 1 All E.R. page 577 in the speech of Lord Hope of Craighead, under reference to Bradford v. McLeod. Interestingly Lord Browne-Wilkinson refers to decisions in Canada, Australia and New Zealand which have modified the test in Regina v. Gough 1993 AC 646:

[5] If I were to take part as a member of the bench that had decided to consider for itself whether or not it should decline jurisdiction I would, I consider, find myself in the position of having to reach a conclusion as to what view a fair-minded and informed member of the public might take of my capacity to act impartially were I to continue to sit and hear the remainder of the appeal. As the author of the article that has given rise to the present motion, and referred to in paragraph 4 of the minute, I am not persuaded that I could sufficiently detach myself from the matters that might have to be considered in order to reach a sound conclusion as to the view that a fair-minded and informed member of the public would be likely to form. I emphasise that I reach this view as the author of the article referred to in the Minutes. I express no view on the positions of my colleagues who bear no responsibility for that article and who played no part whatsoever in writing or publishing it.

[6] However, it appears to me that if I do not take part in deciding the issue of declinature the result is that there is no quorum to address that matter. The consequence of that is that this matter should be put out before a bench that does not include me. And as to the possible composition of that bench I express no view whatsoever. The Minuters may consider that they will require to reformulate their motion to the court; but that is a matter for them.

In light of the views expressed by your Lordship in the chair I agree that the issue of declinature will require to be considered by a differently constituted bench.

In light of the views expressed by your Lordship in the chair concerning his personal position there would appear to be no alternative but to proceed as your Lordship suggests. I accordingly concur in the disposal proposed. I express no opinion on the substance of the matters argued before us.