Scottish High Court of Justiciary Decisons

Robbie the Pict v. Her Majesty's Advocate [2003] ScotHC 12 (13 March 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Kirkwood Lord Wheatley	Appeal No: Misc. 117/02 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in PETITION to the nobile officium by ROBBIE THE PICT Petitioner; against HER MAJESTY'S ADVOCATE Respondent: _______

Petitioner: Party

Respondent: Docherty, QC, AD; Crown Agent

13 March 2003

Introduction

1. This is a petition to the nobile officium to have the decision of this court dated 21 December 2001 set aside on the ground that

"the opinion and procedural conduct of the Lord Justice General Lord Cullen was sufficiently flawed in law to invite a well-informed observer to conclude that a miscarriage of justice has indeed occurred".

The decision complained of was a decision to dismiss as incompetent an earlier petition to the nobile officium by the present petitioner to have a decision of the court dated 16 December 1999 set aside.

2. The opinion of the court dated 21 December 2002 on three preliminary objections taken by the petitioner sets out the background to the petition. We have now held a hearing on the third objection, namely that any judge who is a member of the Speculative Society is disqualified ipso facto from participating in this case.

Further preliminary points

3. At the outset of the hearing the petitioner raised three preliminary points.

(i) Lord Kirkwood's participation

4. This was a repetition of the objection that the petitioner took to Lord Kirkwood's participation in the case. Since the court has already decided that question against the petitioner (Opinion, 21 December 2002), we shall repel the objection.

(ii) Masonic connections

5. The second point was raised in the form of a question that the petitioner addressed to each of us in the following terms:

"Have you ever taken the oath of entered apprentice at first degree for the purpose of entering into Masonic association, or are you obliged by any expectation of loyalty which has the potential to produce an imbalanced judgment in a tribunal such as this?"

The petitioner conceded that masonic membership does not per se disqualify a judge from participation in this case; but he argued that nonetheless each of us had an obligation to disclose whether or not he was a freemason. A failure by a judge to do so would lead a reasonable observer to suspect that the judge could have a higher loyalty (Remli v France, ECHR 1995/510/593, at para. 48).

6. The advocate depute submitted that a judge had an obligation to disclose only such matters as an informed and fair-minded observer might consider would give rise to a reasonable apprehension of bias. No such apprehension could arise in this case merely from the fact of masonic membership.
7. We refused to answer the petitioner's question when he put it to us and we refuse to answer it now. The petitioner has failed to show why his question has any bearing on the issues in this case. He concedes, rightly, that masonic membership is not a ground of disqualification per se (cf. Locabail (UK) Ltd v Bayfield Properties Ltd, [2000] QB 451, at para. 25; Salaman v United Kingdom, ECHR, 15 June 2000). Circumstances could arise where such membership could be a potential ground of disqualification of a judge in an individual case: for example, in a litigation relating to masonic property. In such a case the question would be decided on the general principle laid down in cases such as Porter v Magill ([2002] 2 WLR 37) and Millar v Dickson (2002 SC (PC) 30). But this is not such a case. There is no evidence that the Speculative Society is a branch of freemasonry. The available evidence is to the contrary. The petitioner has shown no reason why any judge who was a freemason could reasonably be thought to be biased in relation to the issues in this case. It follows, in our opinion, that the petitioner's question to us is irrelevant.
8. The petitioner's question raises an important aspect of judicial independence. Every judge is bound, both by his judicial oath and by the ethical obligation incumbent on anyone who exercises a judicial function, to behave honourably, sincerely and impartially towards litigants and those who represent them. These obligations are the cornerstones of judicial integrity. A litigant is entitled to expect integrity of the judge; but he in turn must give the judge his trust. That is the only basis on which litigation can be conducted in an atmosphere of confidence rather than suspicion.
9. In the normal case, the judicial oath is adequate proof against the possibility of bias. If a litigant should feel that there is or may be an objection to a judge in his case, he has the right to raise the matter with the court (eg R v Bow Street Metropolitan Magistrate ex p. Pinochet Ugarte (No 2), [2000] 1 AC 119). But where a litigant is unable to put forward a prima facie case for such an objection, he is not entitled to examine the judge as to his personal views on political, religious or social questions or as to his membership of lawful societies. If a judge were to answer to such examination, he would undermine his own independence. He would qualify the effect of his judicial oath by submitting to the further test of his acceptability to the litigant.

Judicial oath

10. The petitioner also submitted that the judicial oath taken by each of us was itself invalid. This submission was based upon article 19 of the Act of Union 1707, as interpreted in the light of the Treaty of Brigham 1290, the Declaration of Dundee 1310, the Declaration of Arbroath 1320, and the Treaty of Edinburgh 1327. The petitioner submitted that the Act of Union was never implemented and that no lawful constitutional union existed between the Kingdoms of Scotland and England. His conclusion was that the judicial oath sworn by each of us was an oath only to the Queen of England and Wales and not to the sovereign people of Scotland.
11. The petitioner gave no notice of this submission. For that reason alone we cannot entertain it. In any event, we could not consider a point of such significance on the exiguous arguments advanced by the petitioner.

The Speculative Society

12. We therefore turn to the merits of the objection on which this hearing was appointed. The onus rests on the petitioner to substantiate his objection. He must satisfy us that if a judge who is a member of the Society were to take part in the case, there is some reason, arising from his membership of the Society, that would lead a well-informed observer to conclude that there was a reasonable suspicion of bias on his part. The petitioner has led no evidence. He has merely given us some information about the history of the Society taken from published sources. The Crown has lodged the Rules of the Society and an affidavit by its current librarian in which he describes its constitution and activities.

Submissions for the petitioner

13. The petitioner expressly disclaimed any suggestion of actual bias on the part of any judge who is a member of the Speculative Society. His argument was that the nature of the Society and its tradition of secrecy raised a reasonable apprehension of bias in the mind of the onlooker.
14. The petitioner gave us a history of the Society from which he invited us to conclude that the Society's origins were linked to masonic or quasi-masonic movements and that today it is elitist, sexist, racist and unionist. He referred us to 21 recent cases in the Court of Session and in the High Court in which judges who were members of the Society had taken part. He argued that these showed a pattern that could reasonably be thought to give an appearance that judicial independence had been fatally compromised. He submitted, without explaining why, that there was a cabal of members of the Society in the Inner House.
15. The petitioner's overall conclusion was that such a society, numbering so many judges among its members, was a threat to the impartiality of the Scottish judiciary and that membership of it invalidated any proceedings in which such judges took part (Human Rights Act 1998, s. 6; Scotland Act 1998, s. 57(2)).
16. The petitioner also referred us to the public deeds of certain members of the Society. We need not go into these matters. They have nothing to do with Skye Bridge tolls. They do not advance the petitioner's argument. The petitioner also referred us to recent public inquiries and to the Lockerbie trial and appeal in order to show us that there was a strong Speculative Society influence among the judiciary involved in these proceedings. We need not go into these matters either, for the same reason.
17. Much of the petitioner's complaint against the Society relates to a vanished age. Much of it, so far as it relates to the present day, has no bearing on the issue raised in the petition. The petitioner has, however, given us one modern reference that directly relates to the judges of the Court of Session and the High Court. This is a short passage in a chapter by Sir Derrick Dunlop in the History of the Speculative Society (1968) in which he refers to the arrangement by which the Society occupies premises within the University of Edinburgh. These are his words.

"In the past the University has, of course, made several famous but abortive litigious attempts to put right what it considered to be an untidy state of affairs. It is unlikely that these attempts will be renewed in the foreseeable future - not so much because the Chancellor and Vice-Chancellor are honorary members of the Society as because the University realise that their chances of success in the courts would be somewhat slim. There was a time when it was said that if you hadn't belonged to the Speculative you couldn't hope to become a Senator of the College of Justice. That is not entirely true today but there are still a considerable number of speculators in the Court of Session. We all know, of course, that the judicature is icy in its impartiality, which is one of the chief glories of this country, but perhaps this impartiality would be strained to breaking point where the Speculative is concerned and the University are probably aware of this" (pp. 96-97).

Submissions for the Crown

18. The advocate depute submitted that an informed, fair-minded and reasonable observer would conclude that there was no real possibility of bias on the part of a judge who was a member of the Society (Mellors, Petitioner, 2002 SCCR 1007, at para. [45]; Davidson, Petitioner, 2002 SLT 1231, at paras. [25] - [26]). The information before the court showed that the Society was not secret and that its aims and activities were innocuous. The petitioner's references to masonic and similar influences were groundless. It was no different in character from many other private clubs and associations, such as golf clubs. The fair-minded independent observer would also bear in mind the judicial oath, the duty of the judge to disclose any possible cause for a suspicion of bias, and the obligation to give a reasoned decision. These were substantial and objective guarantees of fairness.

Conclusions on the facts

19. We base our findings in this case on the affidavit and the Rules of the Society. These represent authoritative source material on the objects and activities of the Society. The petitioner does not challenge the factual accuracy of the affidavit in any respect.
20. The Society is a society for young men. According to the affidavit, the Society can have no more than 30 ordinary members at any time. Membership is gained by invitation and is subject to voting by secret ballot. The rules provide for a procedure of black-balling. When a member joins, he joins as an ordinary member for a period of three years. There is nothing in the rules to prohibit female membership, but there are no female members and there have never been any.
21. During the period of ordinary membership the member must attend meetings of the Society which are held weekly during the winter months; he must deliver three essays, typically of about 15 minutes duration, and he must open debates.
22. On completion of ordinary membership, the member may apply for extraordinary membership. Extraordinary members have no duties but may attend meetings if they choose. Occasionally honorary members are appointed.
23. The meetings of the Society are held in private and are restricted to members. Dinners are held from time to time, to which guests are sometimes invited. Few extraordinary members attend meetings.
24. The proceedings at meetings begin with the reading of an essay which is then commented upon. After an interval for drinks, there is a debate on a motion previously intimated. The motion is then voted on. Miscellaneous matters are then discussed and the meeting concludes with the reading of an item of interest from the minutes of 100 or 200 years ago.

Decision

25. In our opinion, the petitioner has failed to substantiate his objection. At the previous hearing on the point, he submitted that a reasonable suspicion of bias arose from the fact that the chairman of the Skye Bridge Company and the former Scottish Office Minister who promoted the Skye Bridge legislation were members of the Society. The petitioner has not renewed that submission. His central argument now is that the nature of the Society itself compromises the integrity of its judicial members.
26. In our opinion, the origins and history of the Society, which have not been discussed in any depth, have no great significance in the decision on this objection. The objection falls to be judged by the present state of the Society, its activities and its ethos. On the information before us, we conclude that the Society is neither secret nor sinister and that it simply makes its own refined contribution to the public stock of harmless pleasure. It appears to be careful in its choice of members, but many societies are. Those elected are no doubt happy to be members. Others will be happy not to be. Live and let live is a useful principle in such matters. Notwithstanding the ill-advised remarks of Sir Derrick Dunlop, we can see no reason why any reasonable onlooker could suspect that the loyalties and friendships that typify any society of this kind should in this case override the obligations of the judicial oath.

Interlocutor

27. We shall repel the objection and continue the petition for a hearing on its merits.