Applicant:  Lord Advocate (Mulholland QC), Lawrie; the Crown Agent

Respondent:  M Stewart QC, BT Smith; John MacRitchie & Co, SSC, Peterhead

6 September 2013

The Trial

[1]        On 10 September 2007, at the High Court of Justiciary in Edinburgh, the respondent was acquitted by the trial judge of charges concerning the abduction, assault, rape and murder of Helen Scott and Christine Eadie on 15 and 16 October 1977.  The acquittal followed a “no case to answer” submission by the respondent in terms of section 97 of the Criminal Procedure (Scotland) Act 1995. 

[2]        The case was a high profile one which, at the time of the original offences and during the course of the trial, attracted considerable media attention.  It is known as the “World’s End” murders.  According to the narrative in the application, the two women had last been seen alive sometime after 11.00pm on 15 October 1977 outside the World’s End public house on the High Street, Edinburgh and walking down St Mary’s Street in the company of two men.  At about 2.30pm on the following day, Miss Eadie’s body was found almost 15 miles away at Gosford Bay, Aberlady.  A few hours later, at about 6.00pm, the body of Miss Scott was found in a field near Haddington; a distance of about 5 miles from Gosford Bay.  Both women had been gagged with items of clothing, had their hands tied with tights or a belt, and been subjected to blunt force trauma and non-consensual sexual intercourse.  The bodies were found either naked or partly naked.  Both women had been strangled.

[3]        The trial judge acquitted the respondent on the basis that the DNA evidence, which demonstrated that the appellant and his brother-in-law, namely Gordon Hamilton, had had sexual relations with the women, was “neutral as to whether or not (they were) involved in any acting involving force or violence against the girls, or present when those actings took place, on the night in question”.  He stated, in particular:

“As far as the murders themselves are concerned there was no forensic evidence linking the accused to the items apparently used to kill the girls, for example ligatures.”

The Double Jeopardy Application
[4]        On 20 December 2012, this application under section 4 of the Double Jeopardy (Scotland) Act 2011 was lodged, craving the court to set aside the acquittal and grant authority to bring a new prosecution.  It is a requirement of such an application that there is new evidence that the person committed the original offence.  The court is empowered to set aside an acquittal if, in summary: (a) the case against the person is strengthened substantially by the new evidence; (b) the new evidence was not available, and could not with the exercise of reasonable diligence, have been made available at the trial; (c) it is highly likely that, with the new evidence and the evidence which was led at the trial, a reasonable jury would have convicted; and (d) it is in the interests of justice to do so.  The contention of the applicant is that, whereas the original evidence had proved that the respondent and Mr Hamilton had had sexual intercourse with the girls, new forensic evidence was now available in relation to the ligatures, in the form of DNA findings, which is capable of supporting the inference that the respondent and Mr Hamilton had themselves tied the ligatures and were thus involved in the murders. 

[5]        The case called initially at a procedural hearing on 5 February 2013, presided over by the Lord Justice Clerk and two other judges.  At that stage, the respondent was appointed to lodge answers by 30 April 2013 setting out the scope of his opposition to the application.  A further procedural diet was set for 14 May to determine further procedure and to fix a date for a final hearing.  On 14 May the court, again presided over by the Lord Justice Clerk and two other judges, set a timetable permitting the respondent until 15 July 2013 to adjust the answers, which he had previously lodged, and appointing 1 August as a further procedural hearing, by which time parties ought to have lodged lists of productions and witnesses and identified any expert evidence capable of agreement.  The final hearing was fixed for a period of 8 days, commencing 1 October 2013, at which both evidence and submissions are to be heard. 

[6]        When the case called on 1 August 2013, it appeared that the parties had done very little in any formal sense by way of lodging the lists requested.  The court declined to allow further time in which to do so, but indicated that it would hear parties in respect of any applications to receive late material, should such applications be made.  It was at this hearing, which was again presided over by the Lord Justice Clerk and two other judges, that the respondent’s counsel raised, for the first time and without any prior or written notice, that he intended to move the Lord Justice Clerk to decline jurisdiction (“recuse himself”).  Counsel stated that he was in a position to move this application orally at the bar.  The court requested that any such application ought to be made in writing.  The court appointed a further procedural hearing for 6 September 2013, at which it was anticipated that any applications (including any to decline jurisdiction) might be heard.

The Declinature Application
[7]        On 23 August 2013 the written declinature application was eventually lodged.  This states, as follows:

“The respondent submits that should the Lord Justice Clerk participate in the determination of the application, the court will lack the objective appearance of impartiality necessary for a fair hearing at common law and in terms of Article 6 ECHR.  His continued participation will give rise to apparent bias.  The respondent makes no allegation of actual bias against the Lord Justice Clerk. 

In 2001 the respondent was convicted of a rape and murder committed in 1978.  (The Lord Justice Clerk) was the trial judge.  Following his conviction, the respondent was sentenced to life imprisonment.”

[8]        The trial over which the Lord Justice Clerk had presided had ended on 13 June 2001, when the respondent had been convicted of the rape and murder of a 17 year old girl in Springburn, Glasgow on 19 November 1978.  The case had been reopened in November 1997.  A sample of pubic hair, which had been taken from the deceased, was examined and found to contain sperm with DNA matching that of the respondent.  This evidence, if accepted, had been, as the Lord Justice Clerk described it in his Parole Board report at the time, “compelling evidence that the respondent had been the perpetrator”.

[9]        It is said that this trial bore striking similarities to the present one involving, as it did, “stranger rape and murder”.  Both cases dated from the 1970s and the victims were of a similar age.  Both involved strangulation using clothing as ligatures and in both the core prosecution evidence related to DNA analysis.  In his report to the Parole Board, the Lord Justice Clerk had described the 2001 offence as “one of appalling cruelty and depravity”.  He went on to describe the disclosure of the respondent’s previous convictions for culpable homicide and various sexual offences, and the fact that he was already serving a life sentence, as “somewhat chilling revelations”.  He stated that, in these circumstances, the appellant “poses an extreme danger to young women and is likely to continue to do so.  Any suggestion of his release in the future would have to be scrutinized with great care”. 

[10]      It is said that, whilst those remarks were made in the course of the Lord Justice Clerk’s judicial function, the fair-minded and informed observer would conclude that, nonetheless, they revealed that the Lord Justice Clerk had formed an opinion about the nature of the crime, the strength of DNA evidence, the character of the respondent and where the public interest lay in respect of his incarceration.  The role of the judges in the present application would be as decision-makers on matters of fact, as well as law.  The judges would have to decide whether the DNA evidence was new and whether it substantially strengthened the case against the respondent.  The court would require to address whether it was in the interests of justice to grant the application and this necessarily involved an assessment of the interests of the respondent and those of the public.  The application concludes that:

“The fair-minded observer would conclude that there is a real risk that the Lord Justice Clerk’s decision on the application, particularly in relation to the interests of justice, may be influenced by his knowledge of the detail of the earlier case and his stated opinion about the relationship between the interests of the respondent and those of the public.”

Submissions
Respondent
[11]      When the case called on the appointed diet of 6 September 2013, neither of the respondent’s counsel, who had been present at the time when the motion for declinature had originally been moved at the Bar, was available to present the argument.  It was therefore moved by alternative counsel.  Much of the submission was of course already in written form.  Reference was made, in particular, to the test, which was set out in Porter v Magill [2002] 2 AC 357 (Lord Hope at para 103), of whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal would be biased.  This test was approved for use in the Scottish civil context in Helow v Secretary of State for the Home Department 2009 SC (HL) 1.  Lord Hope stressed that the fair-minded and informed observer was a person who reserved judgment on every point until he had seen and fully understood both sides of the argument.  He was not unduly sensitive or suspicious.  In Millar v Dickson 2002 SC (PC) 30, Lord Hope (at para [63]) emphasised that the appearance of independence and impartiality was just as important as the question of whether those qualities existed.  Justice must not only be done, it must be seen to be done.  The aim of the test was to exclude any legitimate doubt as to a tribunal’s independence and impartiality. 

[12]      The respondent accepted that certain difficulties in his argument were created by the ratio in Locabail (UK) v Bayfield Properties [2000] QB 451.  There, the Court of Appeal in England had contrasted the various factors which may or may not give rise to a real danger of bias.  Such a danger might be thought to arise if there were a personal friendship or some animosity between the judge and a person involved in the case, or if the judge were closely acquainted with such a person.  Specifically, in a case where the credibility of any individual were to be an issue, there may be a danger if the judge had previously rejected that person’s testimony in outspoken terms.  The taking of the judicial oath was not a complete answer.  If there was any real ground of doubt, then recusal should occur. 

[13]      The respondent argued that this was an exceptional case in which the Lord Justice Clerk had presided over a previous trial involving the credibility and reliability of scientific evidence.  Although the outcome of the trial was a matter of public record, that was different from the effect on a judge who had sat through the evidence in person and had subsequently described the crime as one of “appalling cruelty and depravity”.  There had also been access to the respondent’s previous convictions.  Although the remarks of the Lord Justice Clerk on the previous occasion had been made in the course of his judicial function, notably that of sentencing, the fair-minded and informed observer would be aware that the Lord Justice Clerk had formed an opinion on the crime, the strength of the DNA evidence there, the character of the respondent and where the public interest lay in relation to the respondent. 

[14]      It was accepted that dicta in O’Neill v HM Advocate 2013 SCCR 401 also presented an obstacle for the respondent, notably the remarks of the court in relation to the same judge presiding over two trials.  However, that case was distinguishable because the trials had both involved decisions of fact being taken by the jury, whereas the decisions of fact on the application required to be taken by the judges.  The fair-mined and informed observer would conclude that the Lord Justice Clerk, as a fact-finder in this application, had previously reached a conclusion that the respondent posed an extreme danger to women.  Accordingly, he would be unable to reach the appropriate level of objectivity in relation to a determination of whether the DNA evidence was new, significant and meant that the interests of justice lay in the institution of a further prosecution. 

[15]      Although initially it was stated that Article 6 of the European Convention was engaged and that a compatibility issue arose, this proposition was withdrawn, having regard to the concession that Scots domestic law on this point was identical to that in the European jurisprudence and accordingly the domestic principles were compatible with the Convention.

Applicant
[16]      The applicant submitted that the motion for declinature should be refused.  Under reference to Davidson v Scottish Ministers 2003 SC 103 (LJC (Gill) at para [25]), it was said that, whereas the test was whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased, that possibility required to be a reasonable, rather than a fanciful, one.  The fears expressed by the respondent had to be objectively justified.  In Locabail (UK) v Bayfield Properties (supra) the court had set out examples of where bias might be perceived.  This case did not involve any of the categories exemplified.  In the 2001 trial there had been no assessment of credibility and reliability by the Lord Justice Clerk.  The respondent had not given evidence and the issue for the jury was whether the testimony of the witnesses, adduced by the Crown, satisfied the jury beyond reasonable doubt of the respondent’s involvement in the murder.  The matter which had been considered by the trial judge was that of sentence.  That had been carried out in public in the exercise of the judge’s judicial function.  He had been required to provide a report to the Parole Board and this was passed, in normal course, to the respondent.  As was said in Locabail (UK) (para 25), the fact that a judge has commented adversely on a party in a previous case does not, without more, ground a sustainable objection.  If it were otherwise, the sheriff courts would have considerable difficulty in dealing with many of the cases presented to them (Stewart v Nisbet 2013 SCCR 264).  The court in O’Neill v HM Advocate (supra) had not perceived any apparent bias in the mere fact that the same judge had presided over the two trials.  It was only if a judge had expressed outspoken and gratuitous views about a person in a context plainly outside the scope of his judicial duties that the fair-minded and informed observer would doubt a professional judge’s ability to perform his duties with an objective judicial mind. 

[17]      It was important to note the context of the present application.  If it were granted, the effect would be that a new trial would take place.  The evidence would be tested at that trial and not in the present application.  The court in this application was not being asked to make findings in fact based upon that evidence relative to the guilt or otherwise of the respondent.  The judicial oath did provide an adequate safeguard against any perception of bias, when taken along with the other protections, notably the process of this application, any subsequent trial and the availability of a right of review in the subsequent process.  In short, the test for declinature had not been made out.

Decision
[18]      The respondent is entitled to have this double jeopardy application dealt with by an impartial court and that impartiality has to be objectively verifiable.  As was said in Stewart v Nisbet 2013 SCCR 264, under reference to the dictum of Eve J in Law v Chartered Institute of Patent Agents [1919] 2 Ch 276 (at 289, approved in Bradford v McLeod 1985 SCCR 379, LJC (Ross) at 382, Lord Hunter at 383-384), if the impartial and informed observer would suspect bias as a result of the judge’s past involvement with an accused person, the judge must decline jurisdiction if asked to do so.  In Stewart v Nisbet (supra) the contention had been that, because the sheriff had previously disbelieved the appellant when he had given evidence as a witness in a case a year before, he should decline jurisdiction in a case which also involved the credibility and reliability of the appellant as an accused person.  The court rejected this contention and said:

“[31]    … the fact that a sheriff has made a previous determination on the credibility and reliability of an accused in a particular context does not automatically mean that he is prohibited from ever sitting in cases involving that accused.  Were that to be the principle, considerable difficulties would be caused especially in rural or island sheriffdoms, where only one sheriff normally presides.  Given the judicial training of sheriffs, and the terms of the judicial oath which they take, it is not to be assumed that the mere fact that the sheriff has found an accused incredible in respect of a particular matter means that he must be suspected of bias in a trial of that accused on a different issue”.

The court understands this approach to be consistent with that of the Court of Appeal in England and Wales as exemplified in Locabail (UK) v Bayfield Properties [2000] QB 451.  The Court of Appeal was naturally anxious not to attempt to define or list the factors which could be said to give rise to a real danger of bias.  No doubt it is all a question of facts and circumstances.  Nevertheless, the court was able to set out, in general terms, examples of what might give rise to such a danger and what would not.  In the particular situation of a judge’s past involvement with a party in a cause, the court stated that a real danger of bias might well be thought to arise if:

“In a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person’s evidence with an open mind on any later occasion.”

The court emphasised that:

“The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection.”

Some stress was placed also on the significance of the passage of time between the event relied upon as showing a danger of bias and the determination of the case in which the objection was raised. 

[19]      In O’Neill v HM Advocate 2013 SCCR 401 the appellants had been charged on indictment with a number of offences of child abuse and murder.  The charges had been separated with the abuse charges being dealt with first.  At the time of the appellants’ conviction in respect of the first trial, the presiding judge had said to them that it was clear that they were “evil, determined, manipulative and predatory paedophiles of the worst sort”.  The appellants were then tried on the murder charge before the same judge and a different jury.  Although no application was made at the time for the judge to decline jurisdiction (see also Stewart v Nisbet (supra)), it was contended that the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.  Lord Hope, with whom the other justices agreed, cited his own dictum in Porter v Magill [2002] 2 AC 357 (at para 103) that:

“the question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”.

He continued (para 53) by observing that the fair-minded and informed observer would appreciate that the person involved was a professional judge who had taken the judicial oath and had years of relevant training and experience.  He then said this:

“But it would only be if the judge expressed outspoken opinions about the appellant’s character that were entirely gratuitous, and only if the occasion for making them was plainly outside the scope of the proper performance of his duties in conducting the trial, that he [the observer] would doubt the professional judge’s ability to perform those duties with an objective judicial mind.”

Specifically in relation to remarks made in the context of sentencing, Lord Hope stated that the observer would also understand that any remarks made would have been entirely appropriate as background to the sentences which he would have been obliged to pass.

[20]      It is of some importance, in the context of determining what the informed bystander might think, to take appropriate cognisance of the duty of a judge to determine cases which are put before him and not to be deflected from his duty to do so by acceding too easily to unfounded applications for his disqualification.  As a generality, judges do not select the cases which they are asked to determine.  When a case is allocated to the judge, it is his professional duty to proceed to hear it in accordance with his judicial oath.  This was seen as of some significance in Locabail (UK) (supra), where the Court of Appeal explained that they had found great persuasive force in certain extracts from Australian authority.  The first of these was In re JRL, Ex parte CJL (1986) 161 CLR 342, where Mason J said (at 352):

“Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”

Secondly, in Clenae Pty v Australia and New Zealand Banking Group 1999] VSCA 35, Callaway JA observed (at para  89(e)):

“As a general rule it is the duty of a judicial officer to hear and determine the cases allocated to him or her by his or her head of jurisdiction.  Subject to certain limited exceptions, a judge or magistrate should not accede to an unfounded disqualification application.” 

[21]      The court has had no hesitation in rejecting the application for declinature, having regard to the clear dicta of this court in Stewart v Nisbet (supra), the persuasive guidance from the Court of Appeal in England and Wales in Locabail (supra) and the recent decision of the United Kingdom Supreme Court in O’Neill (supra).  All of these cases make it clear that the mere fact that a judge has had past involvement in a judicial decision involving a party does not amount to a reason for that judge to decline jurisdiction.  There would have to have been something extraordinary in the previous case, such as the expression of outspoken views of a gratuitous nature, before declinature would be justified. 

[22]      The present situation involves the challenge to the jurisdiction of the Lord Justice Clerk to hear an application which will involve the assessment, not only by the Lord Justice Clerk but by two other senior appellate judges, of whether certain scientific evidence can be regarded as new and, if taken along with the evidence adduced at the earlier trial, would be likely to result in a guilty verdict.  The challenge is based on the fact that the Lord Justice Clerk presided over a trial involving the same accused some 12 years ago, during the course of which he made no determination at all about the quality of the evidence then presented.  He did make certain remarks about the danger which the respondent posed to the public, but these were made on the basis that the jury had convicted the respondent of what was undoubtedly a particularly savage murder of a young girl, the facts of which are now a matter of public record. 

[23]      All the comments which are referred to as disclosing apparent bias are contained in the report to the Parole Board, which the Lord Justice Clerk, as the trial judge, had been bound to make as part of his judicial role.  He required to explain to the Parole Board the basis upon which he selected the sentence imposed.  Amongst the factors which are relevant to any decision which the Parole Board requires to make, are: (a) the nature and circumstances of the offence; and (b) the risk of that person committing any offence or causing harm to any other person if he or she were to be released on licence, remain on licence or be re-released on licence as the case may be.  It is therefore necessary for a trial judge, in his report to the Parole Board, to offer such observations on these matters as he can.  As in O’Neill (supra), the trial judge’s remarks were not gratuitous and the occasion for making them was plainly within the scope of the proper performance of his duties.  They were directly relevant to the performance of those duties.  They have no bearing on the determination of the issues which arise in this application and the fair-minded and informed observed would have no reason to doubt the judge’s ability to perform his duties in connection with this application with an objective and impartial judicial mind.

[24]      It is important for the preservation of judicial independence that judges should deal with the cases which are put before them, especially those which may be difficult or address unpopular issues.  Judges are no more at liberty to decide the cases which they will hear than parties are at liberty to select the judges who will try them.  The circumstances advanced here do not come close to those which would entitle the Lord Justice Clerk to abrogate his judicial responsibilities as chairman of the Court of Criminal Appeal to which the respondent’s case has been allocated and to decline jurisdiction upon the flimsy ground that he had, many years ago, presided over a trial at which a jury found the respondent guilty and, as a result, the Lord Justice Clerk had been required to pass sentence.