Scottish High Court of Justiciary Decisons

LIEWE HOEKSTRA and JAN VAN RIJS and RONNY VAN RIJS and HENDRIK VAN RIJS v. HER MAJESTY'S ADVOCATE [2000] ScotHC 32 (14th March, 2000)

[1] The appellants are Lieuwe Hoekstra, Jan van Rijs, Ronny van Rijs and Hendrik van Rijs, who were all convicted in the High Court at Dunfermline on 13 March 1997 of a contravention of Section 170 of the Customs and Excise Management Act 1979. Hoekstra and Jan van Rijs were both sentenced to fourteen years imprisonment backdated to 29 July 1996, while the others were sentenced to ten years imprisonment, backdated to the same date. The first three appealed against their conviction, while initially Hendrik van Rijs appealed against sentence only. In due course he was allowed to lodge an appeal against conviction also. It is unnecessary to rehearse the various procedural twists and turns which ensued, save to say, first, that eventually the appellants came to instruct Dutch counsel and, secondly, that, because it was anticipated that the proceedings might be lengthy, the court directed that the appeal should be heard in stages. Shortly before the first stage of the appeal was due to be heard on 23 November 1999, the agents for the appellants lodged minutes raising various devolution issues. At the hearing the court comprised Lord McCluskey, in the chair, Lord Kirkwood and Lord Hamilton. In the result, only a limited number of grounds of appeal were considered and the court was addressed mainly on the devolution issues. The hearing lasted for ten court days, ending on 3 December 1999 when the court made avizandum. On 28 January 2000 the Appeal Court issued a single opinion in the name of the court rejecting the various devolution issues and the grounds of appeal which had been argued. On 31 January, without issuing an opinion, the Appeal Court refused the appellants' motion for leave to appeal to the Privy Council on the devolution issues. The appellants then applied to the Privy Council for special leave to appeal but at the time of the hearing before this court those applications had not been determined.

[2] Having refused leave to appeal, the court, comprising the same judges, was due to proceed to deal with the appeal by considering the grounds of appeal which had not been reached in the first hearing. In the order of 28 January, the court directed that the hearing should proceed on Monday 6 March 2000. On the afternoon of Friday 3 March, however, the agents for each of the appellants lodged identical minutes respectfully moving

As we explain in more detail below, the basis for the motion was an article by Lord McCluskey which appeared in Scotland on Sunday on 6 February 2000. In the event, on 6 March, when Dr. Sjöcrona addressed the court on behalf of the appellants, he indicated that, despite the wording of the minute, his submission was that a different bench should sit to consider whether the original bench should be disqualified from dealing with any further stages of the appeal. Having considered the submissions, Lord McCluskey held (at paragraphs 5 - 6 of his Opinion dated 6 March) that

Lord Kirkwood issued a short opinion saying that in the light of the views expressed by Lord McCluskey he agreed that the issue of declinature would require to be considered by a differently constituted bench. Lord Hamilton similarly indicated that, having regard to Lord McCluskey's views, there would appear to be no alternative but to proceed as he suggested. He expressed no view on the substance of the matters argued before the court on that occasion.

[3] The upshot was that the matter came before this court when counsel for the appellants moved the court to disqualify Lord McCluskey, Lord Kirkwood and Lord Hamilton from hearing further submissions in the appeal. On behalf of the appellants Mr. Jahae and Mr. Pen highlighted two issues which had been canvassed at the earlier hearing and which had been decided by the court in their opinion of 28 January. For present purposes we can describe them very briefly.

[4] Mr. Jahae explained that the first issue arose out of the fact that, on 26 July 1996, the appellants were all on the vessel Isolda when officers of Her Majesty's Customs and Excise boarded it on the high seas and arrested them on suspicion of being involved in shipping three tonnes of cannabis resin to a rendezvous in the North Sea where it was to be transferred to another vessel, the Ocean Jubilee. On the basis of the evidence led at the trial it appears that, without any warrant or other specific authority, a tracking device had been placed on the Isolda, not within the Scottish jurisdiction and probably within Spanish jurisdiction. Signals from the device had been used to locate and observe the Isolda. At the trial the judge repelled defence objections to the admissibility of certain evidence in relation to this matter. Among the grounds of appeal was one relating to the judge's decision and, at the hearing of the appeal, counsel for the appellants moved the court to order the Crown to disclose records relating to the device. In presenting their argument counsel for the appellants relied inter alia on Articles 6 ("Right to a fair trial") and 8 ("Right to respect for private and family life") of the European Convention on Human Rights and Fundamental Freedoms. The court refused the appellants' motion.

[5] As Mr. Pen briefly explained, the second issue arose out of the fact that Mr. Graham Bell, Q.C., had represented the appellant, Jan van Rijs, first, at a preliminary diet before the trial and, later, when Mr. Bell was consulted about his appeal and revised his grounds of appeal. Subsequently, on 1 January 1998 Mr. Bell was appointed as an Advocate Depute - an office which he has held since then. On 7 July 1999 a continued procedural hearing was due to be held in relation to the appeal. Both Hoekstra and Jan van Rijs were unrepresented at that hearing. Although there is some dispute about the exact circumstances, shortly before the start of the proceedings Mr. Bell came into the court room where the appeal was to be heard, with the purpose of representing the Crown at the hearing. He went out shortly after and Mr. Menzies, Q.C., actually represented the Crown at the hearing. The appellants were not themselves in court when Mr. Bell entered, but they were subsequently told what had happened. The contention for the appellants, which the Appeal Court rejected, was that the actings of Mr. Bell on behalf of the Crown had amounted to a breach of the appellants' right to a fair trial and impartial hearing under Article 6(1) of the Convention, resulting in a miscarriage of justice.

[6] The common factor in each of these issues is the reliance which counsel for the appellants placed on the European Convention and on the rights flowing from the Convention. The Advocate Depute who appeared before us did not dispute that Convention-based arguments had been at the forefront of the submissions on these points. Proceeding on that basis, we turn to examine the circumstances giving rise to the motion that the judges should be disqualified.

[7] The hearing of the submissions before the Appeal Court finished on 3 December 1999. As it happened, Lord McCluskey retired from his office as a senator of the College of Justice on Saturday 8 January 2000, while the appeal was at avizandum. On retirement he was appointed to sit as a retired Judge in accordance with the provisions of Section 22 of the Law Reform (Miscellaneous Provisions)(Scotland) Act 1985. It was in this capacity that he continued to take part in the proceedings and that he was a member of the court when it issued its Opinion on Friday 28 January. On Monday 31 January the Appeal Court refused leave to appeal to the Privy Council. The following Sunday, 6 February 2000, Scotland on Sunday ran the first of a series of three articles written by Lord McCluskey. The publication of the series was preceded by a certain amount of advertising. The first article was accompanied by photographs, one a rear view of Lord McCluskey sitting in a suit, apparently in his study, the other a small head-and-shoulders photograph of Lord McCluskey in a full-bottomed wig. This smaller photograph appeared within the framework of two pieces of text, "The law laid bare Part 1" and "Lord McCluskey's Verdict", the word "Verdict" being in large type. The article covered a number of topics relating to the Scottish legal system and to the judiciary. What is important for present purposes is that Lord McCluskey chose to devote part of the article to the European Convention on Human Rights and to its incorporation into Scots law.

[8] The relevant passages begin at the end of a section devoted to the judiciary. Lord McCluskey says:

As set out on the page of the newspaper, what follows is divided into two sections, one printed in bold type and the other in ordinary type.

[9] The first of these sections is preceded by a headline "Trojan horse at the gates of our courtrooms" - which appears to have been inspired by the reference to the Trojan Horse in the passage which we have just quoted. Under that, in smaller bold type, come the words "Avalanche of claims may bring the system to breaking point." There then follows an account of the origins and development of the Convention, including the information that the Council of Europe "now includes 15 EU states plus 26 other 'European' countries from Andorra to Turkey, Lithuania to Ukraine". After explaining that there may be clashes between rights contained in various articles of the Convention, Lord McCluskey adds:

The words quoted from the Reith Lectures are to be found in Lord McCluskey, Law, Justice and Democracy (1987), p. 42 where he said that "it is still too early to assess the accuracy of one senator's prediction that the Charter would provide "a field day ...." The senator making the prediction was apparently (p. 97 n. 4) Senator Eugene Forsey speaking at the University of Calgary in October 1983. For present purposes what matters is, of course, Lord McCluskey's adoption and re-affirmation of the words in the Scotland on Sunday article.

[10] The second section of the article dealing with the Convention has a large heading "Is justice in Scotland ready for human rights from Europe?" followed just below by the heading in bold type "Only a matter of time before the courts face their next bolt from the blue legal challenge". Lord McCluskey goes on to explain the working of Section 57 of the Scotland Act 1998 and the effect of the decision in Starrs v. Ruxton 2000 JC 208 on judicial appointments and the role of the Lord Advocate. Lord McCluskey continues:

[11] The article from which we have quoted appeared a little over a week after the Appeal Court gave judgment on the first stage of the appellants' appeal, less than a week after they refused leave to appeal to the Privy Council and at a time when the Court had directed that the next stage of the appellant's appeal was to proceed on 6 March. At that continued hearing various arguments based on the Convention, including Articles 6 and 8, would be presented by counsel for the appellants. Briefly put, the submission on behalf of the appellants was that, in view of the content and tone of the newspaper article, Lord McCluskey had been revealed as a judge who, subjectively, could not be regarded as impartial in relation to issues of Convention rights. Accordingly, any court of which he was a member in this case and, in particular, the court which had delivered a single unanimous opinion on 28 January could not be regarded, objectively, as impartial. In those circumstances any hearing, on issues relating to Convention rights, before a court so constituted would not be by an impartial tribunal as required by Article 6(1) of the Convention. By resisting the appellants' appeal in proceedings before the court so constituted the Lord Advocate's representative would be doing an act which was incompatible with the appellants' Convention rights in terms of Section 57(2) of the Scotland Act 1998. On behalf of the Crown, the Advocate Depute did not make any submissions on the substance of the appellants' argument and confined herself to referring to authorities about the test which the court should apply in deciding whether Lord McCluskey and the other judges fell to be disqualified.

[12] Although in addressing us counsel for the appellants concentrated on their motion that the judges should be disqualified from hearing any further part of the appeal, it is plain that their argument was constructed around the relevance of Lord McCluskey's article to the issues which fell to be determined in the decision of the court given on 28 January. In particular, the basis for the argument that the judges could not be regarded as an impartial tribunal at any further hearing was the argument that they had not been, objectively, an impartial tribunal in the proceedings leading up to the decision on 28 January and, indeed, in the proceedings when they refused leave to appeal to the Privy Council on 31 January. Not surprisingly, therefore, when the court asked counsel what their view would be about the status of the decision of 28 January, if we were to hold that the judges should be disqualified from dealing with the next stage in the appeal, they indicated that that decision should be set aside as invalid. The Advocate Depute reserved the Crown position.

[13] The appellants were convicted in the High Court and have appealed against conviction. For the determination of such an appeal Parliament has ordained in Section 103(2) of the Criminal Procedure (Scotland) Act 1995 that the quorum of the High Court shall be three and that the determination of any question shall be according to the votes of the majority of the members of the court sitting. Although this is not said expressly, of course, Parliament must have intended that the three judges should all be impartial, if only because the duty of any judge who cannot act impartially in a particular case is to decline to sit. It follows that, if one of the three Judges who sat to hear the appeal could not properly be regarded as impartial, then he ought not to have sat. That being so, we should require to treat the proceedings as if the judge had fulfilled his duty not to sit. In other words, we should have to treat the proceedings as if only two, rather than the necessary three, impartial judges had sat, with the result that there was no properly constituted Appeal Court and hence no court which could pronounce a valid interlocutor. It appears to us that the appropriate course would be for the court, in the exercise of its nobile officium, to set aside the purported interlocutor dated 28 January, there being no interlocutor which could be regarded as final and conclusive in terms of Section 124(2) of the 1995 Act.

[14] For these reasons we approach the question on the basis that, if we come to the view that, because of the article by Lord McCluskey, the particular bench of the High Court cannot properly be regarded as being or having been objectively impartial in relation to the Convention issues in the appellants' appeal, we must set aside the decision of 28 January and direct that the appeal, including those issues covered by that earlier decision, should be heard before a differently constituted court. Since that court would require to hear submissions on the points which Lord Kirkwood and Lord Hamilton had already decided, the composition of the bench would need to be entirely different.

[15] Happily, there was no real dispute about the law which falls to be applied in determining whether a court is impartial. The right to an impartial tribunal under Article 6(1) is a "fundamental principle" of the Convention: De Cubber v. Belgium Series A No. 86 (1984) at paragraph 30. In judging the impartiality of a tribunal one must apply both a subjective and an objective test. Should the tribunal fail either test, then it is not to be regarded as impartial in terms of Article 6(1). In Piersack v. Belgium Series A No. 53 (1982) at paragraph 30 the European Court of Human Rights explained:

Similarly, in Hauschildt v. Denmark Series A No. 154 (1989) at paragraphs 46 - 48 the Court put the point in this way:

We should add that this general approach has already been endorsed by this court, in relation to juries, in the decision in Montgomery and Coulter v. H. M. Advocate No. 2, 16 November 1999, in which leave was given leave to appeal to the Privy Council.

[16] Before turning to look at the approach adopted in our pre-Convention domestic law, we would observe that in addressing us counsel for the appellants did not analyse the decision of the Appeal Court in any detail. More particularly, they did not seek to argue that one could detect actual bias in the terms of the Opinion of the Court. In these circumstances it appears to us that their submissions are properly to be analysed as being designed to persuade us that the Appeal Court could not be regarded as being or as having been impartial, when judged by an objective test, since there was a legitimate reason to fear a lack of impartiality in view of the terms of the article written by one of its members, Lord McCluskey. We propose to deal with counsel's submissions on that basis.

[17] Within the domestic legal systems of the United Kingdom the approach to be taken to such issues has been ventilated in two very recent decisions: R. v. Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet Ugarte (No. 2) [1999] 2 WLR 272 in the House of Lords and Locabail Ltd. v. Bayfield Properties [2000] 1 All ER 65 in a specially constituted Court of Appeal, Civil Division, comprising Lord Bingham C.J., Lord Woolf M.R. and Sir Richard Scott V.C. In each of them a distinction is drawn between the test laid down for England and Wales by the House of Lords in R. v. Gough [1993] AC 646 and that applied in Scotland in Bradford v. McLeod 1986 S.L.T. 244 and Doherty v. McGlennan 1997 S.L.T. 444. In Bradford Lord Justice Clerk Ross adopted as representing the law of Scotland on this matter the words of Eve J. in Law v. Chartered Institute of Patent Agents [1919] 2 Ch. 276 at p. 289 where he said of the members of a council:

We note that in Livesey v. The New South Wales Bar Association (1983) 151 C.L.R. 288 at pp. 293 -294 the High Court of Australia indicated that it might be preferable to avoid the use of the word "suspicion" in this context because "it sometimes conveys unintended nuances of meaning". "Apprehension of bias" might be a more suitable expression. The Constitutional Court of South Africa has recently endorsed that approach in President of the Republic of South Africa v. South African Rugby Football Union 1999 (4) S.A. 147 (CC) at paragraph 37, pp. 171 D - 172 C. Any such change in wording would entail no change in the substance of the test. In ex parte Pinochet Lord Hope of Craighead referred to the test in Bradford and to Doherty, where it was applied, as embodying the Scottish approach. He added (at p. 290 E - F) that:

and went on to say that he thought that the English test in Gough and the Scottish test in Bradford would work similarly in practice:

[18] With these tests in mind we now consider the terms of Lord McCluskey's article. At the general level, in a skilful speech Dr. Sjöcrona pointed to the negative view of the Convention which came through in the ironic reference to it going "by the splendidly attractive name of The European Convention on Human Rights". He went on to submit that the tone of the references to the Strasbourg Court, which expounds the Convention, as "including those Andorrans and Ukrainians" appeared nationalist - suggesting that the author regarded the Court and its judgments as inferior to the Scottish courts and their judgments. This was of no little significance in a case where the Appeal Court was being asked to apply judgments of the European Court of Human Rights. Similarly, by likening the introduction of the Convention into Scots law to the introduction of a Trojan Horse, in the shape of a revolutionary instrument for change, Lord McCluskey was conjuring up the picture of a deceitful stratagem being used to introduce into the citadel of Scots law an alien force which would attack the defending soldiers. There was an implicit suggestion that this alien force would be introducing a revolution which would change the established and better ways of the native Scots law. The immediate results of the introduction of the Convention in Scotland had been "devastating" - implying that it had laid waste areas of national law. Whether one thought of the Titanic sailing towards a legal iceberg or the approach of an avalanche in which the Scottish courts would have to struggle to avoid being buried in the new claims of right, the imagery was overwhelmingly negative and painted a picture of the Convention as something which threatened danger to the Scottish legal system. That negative imagery was particularly disturbing for Dutch appellants in the highest court in Scotland, "claiming their new 'European' rights", employing Dutch counsel to do so and arguing that Convention principles should be applied to supplement or even to displace the native principles of Scots law.

[19] We find Dr. Sjöcrona's analysis compelling, not least because the language of the article must have been deliberately chosen by Lord McCluskey to produce this kind of impact on the readers of the newspaper circulating in Scotland.

[20] But the article does not remain among the topless towers of Ilium; it moves to a different level with the references to the Convention offering a field day for crackpots and being a pain in the neck for judges and a goldmine for lawyers. The implication was, said Dr. Sjöcrona, that parties, such as the appellants, who advanced arguments based on the Convention were crackpots and that their lawyers who advanced those arguments were also crackpots, but crackpots for whom the Convention was a goldmine. Nor was this to be dismissed as a passing fancy of the judge: it was presented as a settled view which he had expressed in 1986 - and he had proved a true prophet. Again this inevitably gave rise to questions about Lord McCluskey's ability, when sitting on the bench, to set aside these firmly-held negative views of the Convention and of those who seek to invoke it. Those questions were made all the more insistent when the article purported to give the "Verdict" of Lord McCluskey, pictured in his judicial wig.

[21] Finally, Dr. Sjöcrona pointed particularly to the references to Article 8 and to its impact on the work of the police who were about to "embark upon a helter-skelter of discovery about the restraints upon their traditional powers and practices". Again, the reference to their "traditional" powers and practices suggested that those powers and practices were desirable and that the restraints were undesirable. In this context, it appeared that Lord McCluskey was hostile to the notion that convicted prisoners, men engaged in homosexual conduct in private and a businessman suspected of using his office for a fraudulent scheme should enjoy rights of privacy in the face of the police. Yet those rights of privacy were a bulwark against a police state. Similarly, Lord McCluskey appeared hostile to the idea that persons being pursued by the police as suspected drug dealers should have rights to privacy, including a right against covert surveillance, under Article 8. This was of significance in the present case where the appellants had been convicted of a drug-related offence and part of their appeal was based on the application of Article 8 to covert surveillance by means of the tracking device on their vessel.

[22] It appears to us that the article, published very shortly after the decision in the appeal, would create in the mind of an informed observer an apprehension of bias on the part of Lord McCluskey against the Convention and against the rights deriving from it, even if in fact no bias existed in the way in which he and the other judges had actually determined the scope of those rights in disposing of the issues in the case. On this particular matter Lord McCluskey could not be seen to have been impartial and there was a legitimate reason, especially on the part of these Dutch appellants but also on the part of an informed observer, to fear a lack of impartiality. The same would apply to Lord McCluskey's participation in future stages of this case.

[23] We stress that, in reaching this conclusion, we attach particular importance to the tone of the language and the impression which the author deliberately gives that his hostility to the operation of the Convention as part of our domestic law is both long-standing and deep-seated. The position would have been very different if all that Lord McCluskey had done was to publish, say, an article in a legal journal drawing attention, in moderate language, to what he perceived to be the drawbacks of incorporating the Convention into our law. Judges, like other members of the public and other members of the legal profession, are entitled to criticise developments in our law, whether in the form of legislation or in the form of judicial decisions. Indeed criticism of particular legislative provisions or particular decisions is often to be found in judges' opinions. Similarly, judges may welcome particular developments in our law. It is well known that in their extra-judicial capacity many prominent judges - not only in England - publicly advocated incorporation of the Convention and equally publicly welcomed the Government's decision to incorporate. But what judges cannot do with impunity is to publish either criticism or praise of such a nature or in such language as to give rise to a legitimate apprehension that, when called upon in the course of their judicial duties to apply that particular branch of the law, they will not be able to do so impartially. Unfortunately, for the reasons which we have given, the nature and tone of the language used by Lord McCluskey in criticising the Convention does in our view give rise to such an apprehension, not just in relation to the Convention generally but more particularly in relation to Article 8 which formed the basis of certain of the submissions in the appeal.

[24] In these circumstances we have come to the view that, because of these published views, there is a legitimate apprehension that Lord McCluskey would not be able to approach the Convention issues in the case impartially, whether or not he did in fact do so in the Opinion of 28 January. In other words he does not pass the objective test of impartiality. We wish to emphasise as strongly as possible, however, that in our view no implication of the same kind applies to either Lord Kirkwood or Lord Hamilton. The mere fact that all the judges concurred in a single opinion constitutes no legitimate basis whatever for supposing that Lord Kirkwood and Lord Hamilton were in any way "infected" by Lord McCluskey's views, even if they were aware of them. But, as we explained above, having reached the view that Lord McCluskey was not objectively impartial and ought therefore to have excused himself, we must set aside the purported interlocutor of 28 January on the basis that it was pronounced by a court which was not properly constituted by three impartial judges. Having done so, we shall direct that further proceedings in the appeal should be heard by three different judges, but only because it would not be proper for either Lord Kirkwood or Lord Hamilton to sit to consider issues in the case on which they have already expressed a judicial opinion.