Scottish High Court of Justiciary Decisons

LIEUWE HOEKSTRA and JAN VAN RIJS and RONNY VAN RIJS and HENDRIK VAN RIJS v. HER MAJESTY'S ADVOCATE [2000] ScotHC 66 (2nd June, 2000)

[1] These continued appeals already have a long procedural history. The only hearing which has so far dealt with the merits of the appeals took place between 23 November and 3 December 1999. The appeal court refused the grounds of appeal which were before it in an opinion which was delivered on 28 January 2000 and is reported as Hoekstra v. H. M. Advocate (No. 1) 2000 S.C.C.R. 263. Subsequently, the appellants moved that the members of the court which had heard that part of the appeal should disqualify themselves from hearing any further stage in the appeal because Lord McCluskey was subjectively biased against arguments based on the European Convention of Human Rights and Fundamental Freedoms and the other members of the court were objectively biased. That motion was eventually heard by a different bench of the High Court who held that on an objective basis Lord McCluskey could not be regarded as impartial. The whole thrust of the argument on behalf of the appellants on that occasion necessarily involved that Lord McCluskey had not been objectively impartial in deciding certain of the grounds of appeal dealt with in the decision of 28 January and, as the court records in paragraph 12 of its opinion, not surprisingly, counsel indicated that, if their motion to disqualify the bench succeeded, the earlier decision should be set aside as invalid: Hoekstra v. H. M. Advocate (No. 2) 2000 S.C.C.R. 367 at p. 377 G. On the basis of reasoning more fully set out in paragraphs 13 and 14 of the opinion, in their decision on 9 March the court held (in paragraph 24 at p. 382 C - D) that

The effect of the order was therefore to set aside the earlier purported interlocutor rejecting certain of the appellants' grounds of appeal and to give them the opportunity of having those grounds considered afresh by a differently constituted court.

[2] The court might perhaps have been forgiven for thinking that this decision was favourable to the appellants and would have been welcomed by them. But on 23 March, at a procedural hearing held to consider how the appeal should proceed, Mr. Gebbie placed before the court a minute on behalf of the appellant Hoekstra giving notice of an intention to raise a devolution issue. The nature of the issue can most easily be appreciated from paragraph 2 (viii) - (xiii) of the minute:

Subsequently, counsel for the other appellants lodged minutes in which they adopted this argument.

[3] At a further procedural hearing on 2 June Mr. Gebbie argued that this court had no jurisdiction to do other than refer the issue to the Privy Council under paragraph 11 of Schedule 6 to the Scotland Act 1998. If we purported to do anything else and in particular to determine whether any genuine devolution issue actually arose, this would in itself give rise to a devolution issue. In the course of Mr. Gebbie's submission, we understood him to argue that, on 9 March, the court should have recognised that it had no power to set aside the earlier decision, but that that decision had been reached in breach of the appellants' rights under Article 6. The court should thereafter have allowed the appellants' appeal on the ground that it had been irremediably tainted with prejudice. Whatever Mr. Gebbie's ultimate argument on that point might be, the only question at present before the court is whether we should refer to the Privy Council the issue which is focused in the minute.

[4] In terms of the relevant paragraph of the Schedule, we can refer to the Privy Council only devolution issues. In this case the core of the supposed devolution issue appears to be that, in their decision of 9 March 2000, the appeal court purported to amend Section 124(2) of the Criminal Procedure (Scotland) Act 1995 and so usurped the functions of the Scottish Parliament, not to mention the Scottish Ministers, the First Minister or the Lord Advocate. An exhaustive list of what constitute devolution issues within the meaning of that term in the Scotland Act is to be found in paragraph 1 of Schedule 6 to the Act. Not surprisingly, the issue focused by Mr. Gebbie's minute does not fall within that list. It is accordingly not a devolution issue. The power of this court to decide whether a minute raises a devolution issue would appear, from the terms of the Act in general, to be inherent in its jurisdiction under the Act but is in any event made clear by paragraph 2 of that Schedule which states that a devolution issue is not to be taken to arise "merely because of any contention of a party to the proceedings which appears to the court or tribunal before which the proceedings take place to be frivolous or vexatious." We do not suggest that the matter raised in the minute should be so characterised. None the less, exercising the power to decide whether a devolution issue arises, we are satisfied that the minute raises no devolution issue and that there is therefore no such issue to refer to the Privy Council, we refuse the appellants' motion.

[5] That is enough to determine the point. We merely add that, as is obvious from the passages in the opinion in Hoekstra No. 2 to which we have referred, the supposed devolution issue rests on a gross distortion of the reasoning of the court.

[6] In that situation we are satisfied not only that Mr. Gebbie's motion to have the matter referred to the Privy Council must be refused but also that we should not grant leave to the appellants to appeal to the Privy Council against our decision.

[7] Mr. Pen took the opportunity of the procedural hearing to ask the court to grant interim liberation to the appellants. He made the general submission that the trial had ended in 13 March 1997 and that the appeal had therefore already taken more than three years and would take longer before it was concluded. He referred to B. v. Austria Series A No. 175 (1990), p. 18 § 49 and to Abdoella v. The Netherlands Series A No. 248 (1992), p. 16 §§ 20 - 24 as authorities vouching the attitude of the European Court of Human Rights to the time taken to dispose of appeals. More particularly, in relation to the appellant Hoekstra he gave the court copies of a letter dated 31 May 2000 from a psychiatrist who has been attending the appellant's wife. Without going into detail it appears from that letter that Mrs. Hoekstra has been admitted to hospital suffering from psychiatric difficulties which are aggravated by the absence of her husband on whom she tends to rely for support. The submission was that, in deciding whether to grant interim liberation, the court should take account of the effect of the appellant's continued imprisonment on his wife's condition.

[8] We have taken account of the illness of the appellant's wife and of the possible significance of the appellant's imprisonment in that respect. We are also very conscious of the time which has elapsed since the appellants marked their appeals in these cases. But we also have to consider the fact that the charges of which the appellants were convicted were extremely serious and that the penalties imposed were correspondingly severe. In those circumstances the court requires to bear in mind the risk to the interests of justice if the appellants were released from custody, failed in their appeals but none the less could not be found and brought back to serve the remainder of their sentences. Looking at the matter overall, we are satisfied that it would not be in the interests of justice to grant the appellants' applications for interim liberation.

[9] That said, the court is anxious that these appeals should be disposed of, one way or the other, as quickly as possible. We therefore informed the appellants' counsel and agents that the court would intend to set aside two full weeks (including the Mondays) in October 2000 for the hearing of the appeals, with the express purpose of completing them within that period. In order to facilitate the hearing, we direct that the appellants' agents should lodge consolidated grounds of appeal in the Justiciary Office no later than noon on Friday 22 September. The consolidated grounds should draw together all those existing grounds of appeal and devolution issues which the appellants wish to argue at the hearing of the appeal. This timetable will not, of course, have effect if the parties apply for and are given special leave to appeal to the Privy Council.