Scottish High Court of Justiciary Decisons

Haney & Ors v. Her Majesty's Advocate [2003] ScotHC 23 (05 February 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord MacLean Lord McCluskey	Appeal Nos: XC78/03, XC79/03, XC80/03, XC81/03 and XC82/03 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in APPEALS by (1) ROSEANN McGOWAN HANEY (2) DIANE MARIE HANEY (3) MARGARET THERESA DUNCAN YOUNG or HANEY or McMENAMIN (4) JOHN FLEMING HANEY and (5) HUGH DUNCAN FERGUSON YOUNG HANEY Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

For the appellants: Pollock, solicitor advocate; Ogg, solicitor advocate (for first appellant):

Jackson QC; Blessing (for second appellant)

Donaldson (for third appellant)

McSherry, solicitor advocate; Wallace, solicitor advocate (for fourth appellant)

Allan, Divers (for fifth appellant)

For the Crown: Di Rollo QC, AD; Crown Agent

 

5 February 2003

1. The appellants face trial at the High Court on a charge under the Misuse of Drugs Act 1971 and, in the case of the third and fourth appellants, a charge of reset. Each has lodged a plea in bar of trial. Their pleas proceed on the basis that there is oppression in that, by reason of prejudicial publicity in the media, none of them can receive a fair trial. In January 2003, after a preliminary diet held at Glasgow High Court, Lord Bracadale repelled the pleas. The appellants have now appealed to this court.
2. At the outset of today's hearing, the court expressed its concern that by reason of Lord Bracadale's previous tenure of the office of advocate depute, it might have been inappropriate for him to have heard the preliminary diet. The court then granted an adjournment to enable the advocate depute to obtain fuller information as to Lord Bracadale's involvement in Crown Office and to enable the counsel and solicitor advocates for the appellants to consider their positions.
3. The latitude in the indictment runs from 1 June 1997 to 8 June 2001. The allegedly prejudicial press reports were published in the period from 1 December 2000 to 12 November 2002. The Minuters were arrested on the present charges on 8 June 2001. The Procurator Fiscal reported the case to Crown Office on 30 June 2001 in relation to certain bail appeals. It is not in dispute that in the period from about 1995 to 2000 other members of the appellants' family were prosecuted and that at least one of them was twice sentenced in the High Court.
4. That timetable sets the context in which we must set the history of Lord Bracadale's involvement in Crown Office. Lord Bracadale was appointed as an advocate depute on 14 May 1997 and remained in that office until 30 September 1998. With effect from 30 September 1998 he was appointed to lead the Crown Office team in the preparation of the Lockerbie prosecution and was involved as counsel for the Crown in the ensuing trial and appeal. His association with Crown Office ended in or about March 2002 with the conclusion of the appeal proceedings in that case. Whether or not he held a formal commission as an advocate depute during that period, or was merely engaged as counsel on behalf of the Crown, was not clear at today's hearing; but for the purposes of this decision we shall assume, as the advocate depute has invited us to do, that he held a commission as an advocate depute. It is clear, on the undisputed representation of the advocate depute, that from 30 September 1998 until the conclusion of the Lockerbie proceedings, Lord Bracadale was not involved in any way in any other aspect of the work of the Crown Office.
5. The counsel and solicitor advocates for the appellants submitted that since the appellants' family had come to the notice of Crown Office in various respects in the period before and during Lord Bracadale's tenure of office as advocate depute, there was a genuine appearance of a possibility of bias arising from his involvement in the present case. Moreover, even when he was involved only in the Lockerbie case, he was nonetheless perceived to be a leading figure in the prosecution service. That consideration too affected the public perception of his role in the present case.
6. The advocate depute submitted that the test to be applied was that set out in Mellors, Petitioner (2002 SCCR 1007, at para. 45), namely whether a fair-minded and informed observer having considered the facts would conclude that there was a real possibility of bias on the part of the court. On that basis, he submitted, no such possibility could reasonably be thought to arise in respect of the period from September 1998 to March 2002 when Lord Bracadale had no involvement in the mainstream prosecution service. While the family itself might have come to the notice of the Crown Office in the years 1997 to 1998 that, by the test in Mellors, could not be seen to be a valid ground of objection.
7. In our opinion, there is no good reason why Lord Bracadale should not have heard the present case. It is clear that he can have had no personal involvement in the present proceedings before his appointment to the bench. The only question therefore is whether an appearance of bias could reasonably be apprehended. It is important to emphasise that the test which governs that question, namely the test referred to in Mellors, requires that the judgment to be made should be related to the viewpoint of an observer who is not only fair-minded but is also informed. There has to be some objective justification for a suspicion of bias and not a mere fanciful possibility. In view of the exclusive nature of Lord Bracadale's involvement in the Lockerbie case in the period in question, there can be no objective justification, in our view, for any suspicion of bias on his part in relation to the issues raised in the present case. Still less could there be such an objective justification in relation to any knowledge of the family that might have come to his notice as an advocate depute in earlier years long before the present proceedings began. In these respects the case is distinguishable from Rimmer, Petitioner (2002 SCCR 1), where the trial judge had been involved in the case before him in a direct way in that at an earlier stage a petition to the Court of Session for a restraint order against the petitioner in connection with the charges then before the court had run in his name as Lord Advocate.
8. We are fortified in the conclusion that we have reached in this case by the fact that when these pleas were debated before Lord Bracadale the possibility of there being any objection to his participation in the case did not occur to any of the counsel or solicitor advocates then representing the appellants, or to the advocate depute, or for that matter to the presiding judge himself.
9. For these reasons, we are satisfied that there is no reason why Lord Bracadale ought not to have dealt with the case. The decision that he made was accordingly a valid decision and is therefore a proper subject of appeal to this court.