Trinity Term
[2013] UKSC 36
On appeal from: [2012] HCJAC 51; [2012] HCJAC 20
JUDGMENT
O'Neill No 2 (Appellant) v Her Majesty's Advocate
(Respondent) (Scotland)
Lauchlan (AP) (Appellant) v Her Majesty's
Advocate (Respondent) (Scotland)
before
Lord Hope, Deputy President
Lord Kerr
Lord Wilson
Lord Hughes
Lord Toulson
JUDGMENT GIVEN ON
13 June 2013
Heard on 29 and 30 April 2013 Appellant (O’Neill)
John Carroll
Liam Ewing
Ann Ogg
(Instructed by Drummond
Miller LLP)
Appellant (Lauchlan)
William McVicar
Gerard Considine
Liam O’Donnell
(Instructed by Fitzpatrick
and Co)
Respondent
Dorothy Bain QC
Douglas Fairley QC
Susanne Tanner
(Instructed by The
Appeals Unit, Crown
Office)
Respondent
Dorothy Bain QC
Douglas Fairley QC
Susanne Tanner
(Instructed by The
Appeals Unit Crown
Office) LORD HOPE (with whom Lord Kerr, Lord Wilson, Lord Hughes and Lord
Toulson agree)
1. On 10 June 2010 the appellants, William Hugh Lauchlan and Charles
Bernard O’Neill, were found guilty in the High Court of Justiciary at Glasgow of
the murder of Mrs Allison McGarrigle between 21 June and 1 September 1997,
and of a subsequent attempt to defeat the ends of justice by disposing of her body
at sea. The charges of which they were convicted in that trial had been separated
from a number of charges on the same indictment of or relating to sexual offences
against children. Their trial on the sexual offence charges took place before Lord
Pentland between 26 April and 12 May 2010. Their trial on the murder charges,
which is the trial to which this appeal relates, took place (between 17 May and 10
June 2010) before the same judge but with a different jury. The appellants were
sentenced to life imprisonment for the murder, with punishment parts of 26 and 30
years respectively, and to concurrent sentences of eight years imprisonment for
attempting to defeat the ends of justice.
2. The appellants both appealed against their convictions at the second trial
and against their sentences. Lauchlan was granted leave to appeal against his
conviction for murder by the sifting judges, but this was restricted to two grounds
alleging errors by the trial judge. He was also given leave to appeal against
sentence. O’Neill too was granted leave to appeal against sentence, but the sifting
judges refused him leave to appeal against his conviction for murder. The
appellants applied under section 107(8) of the Criminal Procedure (Scotland) Act
1995 (“the 1995 Act”) for leave to appeal against their convictions for murder on
certain grounds which the sifting judges had held were unarguable. On 8 February
2012 Lauchlan was refused leave to appeal on those grounds by the Appeal Court.
O’Neill was given leave to appeal on one ground only which alleged an error by
the trial judge: [2012] HCJAC 20.
3. The appellants then applied for leave to appeal to this court under paragraph
13 of Schedule 6 to the Scotland Act 1998 on some of the grounds on which they
were refused leave on 8 February 2012. On 19 April 2012 the Appeal Court (Lord
Justice Clerk Gill, Lord Hodge and Lord McEwan) gave both appellants leave to
appeal on a ground alleging undue delay. It gave O’Neill leave on another ground
alleging apparent bias on the part of the trial judge arising out of things that had
happened in the presence of the jury at the end of the first trial: [2012] HCJAC 51.
The trial judge had been shown a list of the appellants’ previous convictions after
they had been found guilty of the sexual offence charges, and he then made a
comment about their character, having regard to their records and the nature of the
offences of which they had been convicted.
Page 2 Jurisdiction
4. This court has jurisdiction to hear appeals in relation to criminal
proceedings in the High Court of Justiciary under Part II of Schedule 6 to the
Scotland Act 1998 (“the 1998 Act”). The opening paragraph of Part II is in these
terms:
“3. This Part of this Schedule applies in relation to devolution issues
in proceedings in Scotland.”
The expression “devolution issue” is defined in paragraph 1 of Schedule 6, which
provides:
“1. In this Schedule ‘devolution issue’ means-
(a) a question whether an Act of the Scottish Parliament or any
provision of an Act of the Scottish Parliament is within the
legislative competence of the Parliament,
(b) a question whether any function (being a function which any
person has purported, or is proposing, to exercise) is a function of the
Scottish Ministers, the First Minister or the Lord Advocate,
(c) a question whether the purported or proposed exercise of a
function by a member of the Scottish Government is, or would be,
within devolved competence,
(d) a question whether a purported or proposed exercise of a function
by a member of the Scottish Government is, or would be,
incompatible with any of the Convention rights or with EU law,
(e) a question whether a failure to act by a member of the Scottish
Government is incompatible with any of the Convention rights or
with EU law,
(f) any other question about whether a function is exercisable within
devolved competence or in or as regards Scotland and any other
question arising by virtue of this Act about reserved matters.”
Page 3 5. The Scotland Act 2012 (“the 2012 Act”) made a number of important
changes to this court’s jurisdiction to deal with devolution issues under Schedule 6
to the 1998 Act. They came into effect on 22 April 2013: The Scotland Act 2012
(Commencement No 3) Order 2013 (2013/6 (C1). This is also the relevant date for
the purposes of The Scotland Act 2012 (Transitional and Consequential
Provisions) Order 2013 (2013/7 (S1)) (“the 2013 Order”): see article 1(2) of that
Order. This appeal was heard one week later on 29 and 30 April 2013. Section
36(4) of the 2012 Act provides:
“In paragraph 1 of Schedule 6 (devolution issues), after subparagraph (f) insert –
‘But a question arising in criminal proceedings in Scotland that
would, apart from this paragraph, be a devolution issue is not a
devolution issue if (however formulated) it relates to the
compatibility with any of the Convention rights or with EU law of
(a) an Act of the Scottish Parliament or any provision of an Act of
the Scottish Parliament,
(b) a function,
(c) the purported or proposed exercise of a function,
(d) a failure to act.’”
6. The effect of the exclusion of questions of the kind referred in section 36(4)
of the 2012 Act from the list of devolution issues in paragraph 1 of Schedule 6 to
the 1998 Act is that these questions must now be dealt with as compatibility issues
under the 1995 Act. Section 288ZA(2), which was inserted into the 1995 Act by
section 34(3) of the 2012 Act, provides that “compatibility issue” means
“a question, arising in criminal proceedings, as to –
(a) whether a public authority has acted (or proposes to act) –
(i) in a way which is made unlawful by section 6(1) of the Human
Rights Act 1998, or
Page 4 (ii) in a way which is incompatible with EU law, or
(b) whether an Act of the Scottish Parliament or any provision of an
Act of the Scottish Parliament is incompatible with any of the
Convention rights or with EU law.”
7. Section 288ZB(4), which was inserted into the 1995 Act by section 35 of
the 2012 Act, provides for references of compatibility issues to the Supreme Court
by a court consisting of two or more judges of the High Court of Justiciary.
Subsection (6) of that section provides that, on a reference to it under that section,
the powers of the Supreme Court are exercisable only for the purpose of
determining the compatibility issue. Subsection (7) provides that, when it has
determined a compatibility issue on a reference under that section, the Supreme
Court must remit the proceedings to the High Court. Section 288AA, which was
inserted into the 1995 Act by section 36(6) of the 2012 Act, provides for appeals to
the Supreme Court. It contains the same directions in subsections (2) and (3) as to
the way this court’s powers are to be exercised in the case of appeals as those in
subsections (6) and (7) of section 288ZB which relate to references.
8. Article 2 of the 2013 Order provides:
“(1) A convertible devolution issue is a question arising in criminal
proceedings before the relevant date which –
(a) is a devolution issue;
(b) would have been a compatibility issue had it arisen on or after
that date; and
(c) has not been finally determined before the relevant date.
(2) But a devolution issue arising in criminal proceedings before the
relevant date is not a convertible devolution issue if –
(a) the issue has been referred, or a determination of the issue has
been appealed, to the Supreme Court under Schedule 6 to the 1998
Act; and
Page 5 (b) the hearing of the reference or appeal commences before the
relevant date.”
Article 3(1) provides that, subject to qualifications which do not apply in this case,
a convertible devolution issue becomes a compatibility issue for all purposes on
the relevant date.
9. The allegation of undue delay raised a devolution issue within the meaning
of paragraph 1(d) of Schedule 6 to the 1998 Act. It arose in criminal proceedings
before 22 April 2013, it satisfied the other tests set out in article 2(1) of the 2013
Order and the hearing of the appeal did not commence before 22 April 2013. So it
was a convertible devolution issue, and it has now become a compatibility issue by
virtue of article 3(1). As it has come before the Supreme Court as an appeal against
the determination of that issue by the Appeal Court, it is to be treated as an appeal
under section 288AA(1) of the 1995 Act: 2013 Order, articles 4(2) and 7(2). So
the powers of this court must be exercised in the manner provided for by section
288AA(2) and (3) of the 1995 Act.
10. The allegation of apparent bias was the subject of an amended note of
appeal which had been lodged on O’Neill’s behalf before the hearing before the
Appeal Court of his application under section 107(8) of the 1995 Act. It made no
mention of any act on the part of the Lord Advocate, so it does not appear to have
raised a devolution issue at that stage. But it was submitted on O’Neill’s behalf by
his solicitor advocate when he was applying for leave to appeal to this court that
this allegation did raise a devolution issue: [2012] HCJAC 51. Lord Hodge
explained the position in paras 6 and 7 of the Appeal Court’s opinion:
“6. In additional ground 15 of his grounds of appeal Mr O’Neill
complained about the comments of the trial judge, Lord Pentland, at
the end of the first phase of the trial. We expressed our views on this
ground in paragraphs 81 to 88 of this court’s opinions. Mr Carroll
submitted that the challenge raised a devolution issue as the Lord
Advocate had persevered with the prosecution in the face of what
was evidence of an unfair trial.
7. For the reasons which we stated in those paragraphs we did not
think that the points which Mr Carroll raised were arguable. We
adhere to that view. But we recognise that the splitting of the trial
into two phases before two juries and the resulting presentation of
previous convictions and the judge’s remarks at the end of the first
phase were very unusual circumstances. We are satisfied that it is
appropriate to give leave to appeal on this ground.”
Page 6 11. The way the argument on this ground of appeal proceeded in the Appeal
Court suggests that, as it was not presented as a devolution issue at the stage of the
application under section 107(8) of the 1995 Act, there has been no determination
of that issue by that court against which there could have been an appeal under
paragraph 13 of Schedule 6 to the Scotland Act 1998. But the Appeal Court had
power under paragraph 11 of the Schedule to refer any devolution issue which
arose in proceedings before it to this court, and that is what seems to have
happened in this case. By the same process of reasoning as applies to the allegation
of undue delay, this issue was a convertible devolution issue and is now a
compatibility issue. This means that this court has jurisdiction to consider it, and
that its powers must be exercised in the manner provided for by section 288ZB(6)
and (7) of the 1998 Act.
Undue delay
(a) the issue
12. The period of time relied on in this case extends from 17 September 1998,
when the appellants were detained under section 14 of the 1995 Act on suspicion
of conspiracy to murder, to 10 June 2010 when they were convicted. It was not
until 5 April 2005 that the appellants appeared on petition at Kilmarnock Sheriff
Court on charges which ultimately formed the basis for the charges in the
indictment of which they were convicted. There was a further period until 10
September 2008 when the indictment was served on them, but the focus of
attention at this stage is on that which occurred between 17 September 1998 and 5
April 2005. The question which this court has been asked to decide requires it to
identify the right starting point for the purposes of the reasonable time guarantee in
article 6(1) of the European Convention on Human Rights.
13. The issue was focussed by Lord Hodge in the Appeal Court’s opinion of 19
April 2012 in this way:
“2. Mr McVicar on behalf of Mr Lauchlan sought leave to argue
before the Supreme Court that the decision of that court in Ambrose
v Harris (2011 SLT 1005) had the result that the starting point in the
assessment of reasonable time under article 6 of the European
Convention on Human Rights (“ECHR”) was not, as the Appeal
Court had held in O’Neill v HM Advocate (2010 SCCR 357), the
stage when an accused person appeared on petition but the earlier
stage when the accused was interviewed by the police under caution
in the exercise of their powers under section 14 of the 1995 Act. Mr
Carroll on behalf of Mr O’Neill adopted Mr McVicar’s submissions.
Page 7 3. We have decided to grant leave to appeal on this ground. We set
out our reasoning in paragraphs 25-29 of this court’s opinions but
recognise that the issue raised is one which arises from statements in
a decision of the Supreme Court on which that court may wish to
provide further guidance.”
14. The parties agree that the issue can be formulated in this way: whether for
the purposes of their right to a trial within a reasonable time in terms of article 6(1)
of the European Convention on Human Rights the appellants were “charged” on
17 September 1998. That, say the appellants, is the date that should be taken to be
the starting point. The Crown contends, on the other hand, that the correct starting
point is 5 April 2005. It was suggested by the appellants in the statement of facts
and issues that this court should also say whether or not the period between 17
September 1998 and 10 June 2010 when the appellants were convicted constituted
an unreasonable delay in the process of determination of the charges against them.
But it was accepted during the hearing of the oral argument that this issue would
raise questions of fact which are best left for determination by the Appeal Court.
(b) the facts
15. The deceased, Mrs Allison McGarrigle, had a son named Robert who was
subject to a residential supervision requirement under the Social Work (Scotland)
Act 1968. It required him to live during the week with his father in Kilmacolm but
he was permitted to visit his mother, who was divorced from his father, during the
day on Saturdays. On Saturday 14 June 1997 Robert did not return to his father’s
address after visiting his mother. Instead he and his mother went to Largs, where
they met the appellants and went to live with them in a property which they were
then occupying in that town. On or about 20 June 1997 a drinking session took
place there at which a number of people including the appellants, Mrs McGarrigle
and Robert were present. Mrs McGarrigle was no longer there the following
morning, and she was never seen by Robert again. On 16 February 1998 she was
reported to the police as a missing person by her ex-husband. The exact date when
she was last seen was marked as unknown, but it was noted that she had cashed a
benefit cheque in Rothesay on 12 June 1997.
16. By September 1998 the police enquiry into Mrs McGarrigle’s
disappearance was being referred to by the Procurator Fiscal at Kilmarnock as a
disappearance in suspicious circumstances, and by the Head of the Crown Office
Appeals Unit and Crown Counsel as a murder enquiry. In the meantime, on 17
June 1998, the appellants were convicted of a number of sexual offences including
offences against Robert McGarrigle. These offences had been committed between
March 1993 and 27 July 1996 when Robert and his mother were living close to
where the appellants were then living in Rothesay. On 18 August 1998 the
Page 8 appellants were sentenced in respect of these convictions to periods of 6 years and
8 years imprisonment respectively and became subject to notification requirements
under the Sex Offenders Act 1997. They were taken to Peterhead Prison to serve
their sentences.
17. On 14 September 1998 the Procurator Fiscal at Kilmarnock wrote to the
Governor of Peterhead Prison requesting that the appellants be released into the
custody of the police for questioning. On 17 September 1998 they were taken
from custody and detained by officers of Grampian Police under section 14 of the
1995 Act on suspicion, as that section requires, of having committed an offence
punishable by imprisonment. The offence which they were suspected of having
committed was conspiracy to murder. They were taken to a police station in
Aberdeen where they were each questioned separately by two police officers.
18. Lauchlan was questioned from 11.14 to 16.45 hours, with breaks between
11.51 and 12.25 hours and 15.18 and 16.01 hours. He was cautioned at the start of
his interview. He made it clear when it began that, on the advice of his solicitor,
he would not be answering any questions that were put to him, and he maintained
that attitude throughout what was a long and unproductive interview. One or two
passages are, however, of interest.
19. During the early stages of the interview the police restricted themselves to
asking a series of questions. Lauchlan remained silent in response to all of them.
He was then told (Appendix 1, p 492, MS p 820): “What you’ve got to realize here
is this is not going to go away we are not going to go away.” Shortly afterwards
Lauchlan broke his silence and this conversation took place (Appendix 1, p 497,
MS p 825):
“WL Look if you’re going to charge me with something charge me
I’ve had enough.
DC2 I didn’t mention, I have not mentioned charging you with
anything.
WL If not give this up.
DC2 No I’m interviewing you William okay. I intend to carry out
the interview with or without your co-operation I intend to
carry out the interview.”
Page 9 20. As the interview went on the questioning became more direct. Lauchlan
was asked (Appendix p 512, MS p 840): “Did you murder Allison McGarrigle?”
He did not respond. This question was then put to him (Appendix p 515, MS p
843):
“DC2 …I will ask you for a final time with the weight of the
evidence against you and your friend knowing something about the
disappearance of Allison McGarrigle will you help us to find her
remains?”
There was no response, so the question was put to him again:
“DC2 I’m not asking you at this stage if you killed her. I’m not
asking you at this stage if you know who killed her. I’m asking you
at this stage whether or not you would consider helping us to find her
remains. It’s a separate question. Are you? ….Are you prepared to
help us to find Allison McGarrigle yes or no? Answer that one
question I’ll put to you …. I’ll finish the interview and put the tape
off. So you don’t, you’re not interested in helping us. Canny go any
further than that Wullie”
21. As the interview drew to a close one further attempt was made to elicit a
response (Appendix p 526, MS p 854):
“DC1 …. If you did not have anything to do with Allison
McGarrigle’s death you have no reason not to speak to us, would
you agree wi’ that? You’re not, your refusal to speak to us. The only
reason I can think of is that you have something to do with her death.
or that someone very close to you had something to do with her
death and that out of loyalty you will not tell us. Which is it? Which
is it William? Unless you can come up with another reason why you
should refuse to speak to us about it. It’s got to be one of those two.
So which is it? Convince me otherwise.”
As the interview was about to end these final questions were put (Appendix p 528,
MS p 856):
“DC2 Did you murder Allison McGarrigle? Did you?
Page 10 DC1 Did you kill Allison McGarrigle? Were you present when
someone else did?”
Lauchlan did not answer them. He remained silent.
22. O’Neill was questioned from 10.53 to 16.31 hours, with a break from 13.02
to 14.19 hours. He was cautioned at the start of the interview. He gave his name
and age and said that he was unemployed. But he refused to answer any further
questions, most of which were met by the words “No comment”. Several minutes
after the opening stage of the questioning there was this exchange (Appendix p
534, MS p 862):
“O/N You’re going to charge me in’t you? You’d be as well just
charging me and taking me to court.
DC1 Charlie, Charlie, we’re here, we’ve explained to you what
we’re doing and we’re speaking to you right. It’s as simple as that.
… I am hoping that you might find it within yourself to give us some
assistance, right. We’re no up here to crucify Charlie O’Neill.”
23. As the questioning went on there was no change in O’Neill’s attitude. In
the course of a long narrative of the information that was in the hands of the police
he was told (Appendix p 578, MS p 906):
“I’m asking you quite bluntly Allison McGarrigle’s dead, you’re
involved in her death, you’re the only person that can say how much
or how little involvement you have but from the information that we
have here there is no doubt whatsoever that you are involved in her
death….I’m giving you the opportunity sitting here in this room the
noo tae say tae me, this is what happened, this is how it happened, it
may even be why it happened ah don’t know and here is what you
need to know. Because its no going away Charlie, it’ll never go
away. It’ll never go away.”
Sometime later he was asked (Appendix p 597, MS p 925): “Did you kill her
Charlie? Was she just too much bother for you?” He made no comment in reply.
In the course of the next question he was told directly that the reason why he
would not answer questions was quite simple: “Because you killed her.” At the end
of the interview one of the interviewing officers said (Appendix p 602, MS p 930):
Page 11 “Right what we’ll do at the minute Charlie is we’ll stop the
interview. We’ll need to go and seek some advice.”
24. The appellants were not arrested or charged at the conclusion of their
interviews, but were returned to Peterhead Prison to continue serving their
sentences. Lauchlan was released on licence on 18 January 2002. In March of the
following year, in breach of the notification requirements, he travelled to Spain.
O’Neill was released on licence on 22 May 2003. He too travelled to Spain shortly
afterwards in breach of those requirements and met Lauchlan. On 22 April 2004
they were arrested in connection with the apparent abduction of a fourteen year old
boy. Steps were then taken for them to return to the United Kingdom to face
charges that they were in breach of the notification requirements under the Sex
Offenders Act. On 15 March 2005 they pled guilty to these charges, and on 4 April
2005 they were each sentenced to three years imprisonment. On 5 April 2005 they
were charged with the murder of Allison McGarrigle and with concealing and
disposing of her body in an attempt to pervert the course of justice. They appeared
on petition at Kilmarnock Sheriff Court where they were committed for further
examination and remanded in custody.
(c) articles 6(1) and (3)(c)
25. Article 6(1) of the Convention states that in the determination of his civil
rights and obligations or “of any criminal charge against him”, everyone is entitled
to a fair and public hearing within a reasonable time by an independent and
impartial tribunal established by law. In Attorney General’s Reference (No 2 of
2001) [2003] UKHL 68, [2004] 2 AC 72, para 20, Lord Bingham of Cornhill
analysed the article in this way:
“First, the right of a criminal defendant is to a hearing. The article
requires that hearing to have certain characteristics. If the hearing is
shown not to have been fair, a conviction can be quashed and a
retrial ordered if a fair trial can still be held. If the hearing is shown
to have been by a tribunal lacking independence or impartiality or
legal authority, a conviction can be quashed and a retrial ordered if a
fair trial can still be held. If judgment was not given publicly,
judgment can be given publicly. But time, once spent, cannot be
recovered. If a breach of the reasonable time requirement is shown
to have occurred, it cannot be cured.”
In Dyer v Watson [2002] UKPC D1, [2004] 1 AC 379, 2002 SC (PC) 89, para 73, I
said that these four rights can and should be considered separately, and that a
complaint that one of them has been breached cannot be answered by showing that
Page 12 the other rights were not breached: see also Darmalingum v The State [2000] 1
WLR 2303, 2307-2308, per Lord Steyn. Delay is therefore to be seen as affording
an independent ground of relief, whether or not there was prejudice or any threat to
the fairness of the trial. The fact that an accused person has been convicted after a
fair hearing by a proper court cannot justify or excuse a breach of his guarantee of
a disposal of the charge against him within a reasonable time: Dyer v Watson, para
94.
26. As Lord Bingham observed in Attorney General’s Reference (No 2 of
2001), para 26, the requirement that a criminal charge be heard within a reasonable
time poses the inevitable questions: when, for the purposes of article 6(1), does a
person become subject to a criminal charge? When, in other words, does the
reasonable time begin? That is the question to which this issue is directed.
27. But it is necessary also to notice article 6(3), which states that everyone
“charged with a criminal offence” has certain minimum rights, including “(c) to
defend himself in person or through legal assistance of his own choosing or, if he
has not sufficient means to pay for legal assistance, to be given it free when the
interests of justice so require.” This is because it has been recognised that a person
has a Convention right of access to a lawyer under that article, read in conjunction
with article 6(1), before answering any questions put to him by the police in
circumstances where the questioning might affect his right to a fair trial: Salduz v
Turkey (2008) 49 EHRR 421; Cadder v HM Advocate [2010] UKSC 43, 2011 SC
(UKSC) 13, [2010] 1 WLR 2601.
28. The question posed by article 6(1) read together with article 6(3) is a
different question from that posed by the reasonable time guarantee, although both
questions require a date to be identified. That it should be within a reasonable time
is one of the characteristics required of a hearing by article 6(1): see para 25,
above. So too is the requirement that the hearing is fair. But the answer to the
question whether the hearing is fair may depend on things that happened before it
is known when the hearing will take place, or whether there will be a hearing at all.
So the question can be put this way: when does the person become entitled to that
protection to preserve his right to a fair trial? When, in other words, is he to be
taken to have been “charged” for the purposes of those articles?
29. In Ambrose v Harris [2011] UKSC 43, [2011] 1 WLR 2435, 2012 SC
(UKSC) 53, the questions were raised as to the correct starting point for the
purposes of the right to legal advice under article 6 in accordance with the
principle in Salduz. In para 62 I said:
Page 13 “The correct starting point, when one is considering whether the
person’s Convention rights have been breached, is to identify the
moment as from which he was charged for the purposes of article
6.1. The guidance as to when this occurs is well known. The test is
whether the situation of the individual was substantially affected:
Deweer v Belgium [1980] 2 EHRR 439, para 46; Eckle v Germany
[1982] 5 EHRR 1, para 73. His position will have been substantially
affected as soon as the suspicion against him is being seriously
investigated and the prosecution case compiled: Shabelnik v Ukraine
(Application No 16404/03) (unreported) given 19 February 2009,
para 57. In Corigliano v Italy [1982] 5 EHRR 334, para 34 the court
said that, whilst ‘charge’ for the purposes of article 6.1 might in
general be defined as the official notification given to the individual
by the competent authority of an allegation that he has committed a
criminal offence, as it was put in Eckle’s case 5 EHRR 1, para 73, it
may in some instances take the form of other measures which carry
the implication of such an allegation.”
As the Appeal Court indicated when it gave leave to appeal on this ground, it is
with reference to this passage that further guidance is needed, as the appellants’
argument is that the date of their police interviews should be taken as being the
date when the reasonable time begins: [2012] HCJAC 51, paras 2 and 3.
30. Of the four cases decided by the Strasbourg court to which I referred in para
62 of Ambrose, however, only Shabelnik v Ukraine was concerned with the
protection that is afforded by article 6(3)(c). Corigliano and Eckle were concerned
with the reasonable time guarantee, and Deweer was concerned with the question
whether the proceedings were within the scope of the article. The discussion in
Shabelnik, para 52, of the manner in which articles 6(1) and (3)(c) are to be
applied makes the point that article 6 may be relevant before a case is sent for trial,
if and so far as the fairness of the trial is likely to be seriously prejudiced by an
initial failure to comply with its provisions: see also Imbroscia v Switzerland
(1993) 17 EHRR 441, para 36. In Ambrose v Harris, para 63 I said that the Lord
Advocate’s submission that the protection of article 6(3)(c) was not engaged until
the individual was taken into custody could not withstand the emphasis that the
Strasbourg court puts on the consequences of an initial failure to comply with its
provisions, as in Salduz’s case, para 50 and Zaichenko v Russia (Application No
39660/02) (unreported) given 18 February 2010, para 35. These remarks were
directed to the first of the three characteristics of a hearing required by article 6(1)
– that the hearing is fair – not to the reasonable time guarantee.
31. Yet the court went on in Shabelnik v Ukraine, para 52, to say this:
Page 14 “The manner in which article 6(1) and (3)(c) is to be applied during
the preliminary investigation depends on the special features of the
proceedings involved and on the circumstances of the case. The
moment from which article 6 applies in ‘criminal’ matters also
depends on the circumstances of the case, as the prominent place
held in a democratic society by the right to a fair trial prompts the
Court to prefer a ‘substantive’, rather than a ‘formal’, conception of
the ‘charge’ contemplated by article 6(1).”
This passage suggests, as does the first sentence of para 62 in Ambrose, that the
date when a person becomes subject to a “criminal charge” and the reasonable
time begins is the same as that when the person is “charged” for the purposes of
article 6(3)(c): see also Yankov and Manchev v Bulgaria (Applications Nos
27207/04 and 15614/05) (unreported) given 22 October 2009, para 18, where the
starting point was taken to be the date when the police took a statement from the
applicant in which he confessed to taking part in the commission of the offence
and not the date when a formal charge was directed against him. In some cases the
same date may be equally appropriate for each of these two purposes. But they are
separate guarantees, and it is not obvious that the relevant date for each of them
must be the same.
32. In Salduz v Turkey, para 50 the Grand Chamber pointed out that the right in
article 6(3)(c) is one element, among others, of the concept of a fair trial in
criminal proceedings in article 6(1). In para 55 it said that, in order for the right to
a fair trial to remain sufficiently “practical and effective”, article 6(1) required that,
as a rule, access to a lawyer should be provided as from the first interrogation of a
suspect by the police unless there were compelling reasons to restrict that right. In
Eckle v Germany, on the other hand, the court said in para 73 that in criminal
matters the reasonable time referred to in article 6(1) begins to run as soon as a
person is ‘charged’, and that this may occur on a date prior to the case coming
before the trial court, such as the date of arrest, the date when the person was
officially notified that he would be prosecuted or the date when the preliminary
investigations were opened. In Attorney General’s Reference (No 2 of 2001), para
27 Lord Bingham said that as a general rule the relevant period for this purpose
will begin at the earliest time at which a person is officially alerted to the
likelihood of criminal proceedings against him – a formulation which he hoped
might be easier to apply in this country.
33. The reasoning in paras 50-55 of Salduz v Turkey at no point examines the
meaning of the word “charged” but concentrates instead on the requirements of a
fair trial. This suggests that different approaches can be applied to the two
guarantees as to what is the relevant date. Article 6(3)(c), which applies where a
person is “charged with a criminal offence”, must now be read in a way that makes
the guarantee of a fair trial practical and effective. The first interrogation of a
Page 15 suspect may take place, and often does, before the person is officially alerted to the
likelihood of criminal proceedings against him. To wait until the stage is reached
when there is sufficient evidence to bring a charge before the suspect has the right
of access to a lawyer could seriously prejudice his right to a fair trial. So the
focus, for the purposes of this part of article 6, is on the state of affairs when the
suspect is first interrogated.
34. Contrast that with the focus of the reasonable time guarantee in article 6(1).
It is on the running of time, not on what is needed to preserve the right to a fair
trial. Its rationale is that a person charged should not remain too long in a state of
uncertainty about his fate: Wemhoff v Federal Republic of Germany (1968) 1
EHRR 55, para 18; Stögmuller v Austria (1969) 1 EHRR 155, para 5. As Lord
Bingham said in Attorney General’s Reference (No 2 of 2001), para 16, a person
who is facing conviction and punishment should not have to undergo the additional
punishment of protracted delay, with all the implications that it may have for his
health and family life. So the date as from which time runs is taken to be the date
as from which his position has been substantially affected by the official
notification. Practice as to how these matters are handled varies from state to state,
but in the United Kingdom this could well be some time after the date when he
was first subjected to police questioning.
(d) discussion
35. It is, of course, plain that the appellants were entitled to the protection of
article 6(1) read together with article 6(3)(c) on 17 September 1998 when they
were interviewed. Salduz v Turkey had not yet been decided, nor had Cadder v HM
Advocate. So they were not offered the protection of having a lawyer present
during the police questioning. In the event the absence of a lawyer made no
difference, because the appellants knew perfectly well that they were entitled to
remain silent and were able steadfastly to resist all attempts to persuade them to
provide the police with answers that might incriminate them. Their position was,
however, indistinguishable from that of the appellant in Cadder. Like him, they
were being questioned as detainees under section 14 of the 1995 Act. They were
also being questioned as suspects. In Ambrose v Harris, para 63, I said that the
moment at which the individual is no longer a potential witness but has become a
suspect provides as good a guide as any as to when he should be taken to have
been charged for the purposes of article 6(1). For completeness I should have said
“for the purposes of article 6(1) read in conjunction with article 6(3)(c)”, as it is
the guarantee of a fair trial that the Salduz protection seeks to serve.
36. I would hold therefore that the date as from which reasonable time begins to
run is the subject of a separate guarantee from the guarantee that the trial will be
fair, and that it requires to be approached separately. It is not enough that the
Page 16 appellants were being subjected to questioning in circumstances that might have
affected their right to a fair trial. The question is whether they were charged on that
date, in the sense indicated by Eckle v Germany, para 73, as explained by Lord
Bingham in Attorney General’s Reference (No 2 of 2001), para 27. Were they
officially notified that they would be prosecuted as it was put in Eckle, or officially
alerted to the likelihood of criminal proceedings against them as it was put by Lord
Bingham, when they were being interviewed?
37. The appellants were certainly not at any stage of their interviews “charged”
in the formal sense. They both asked the police whether they were going to be
charged, and they both received indications to the contrary: see paras 19 and 22,
above. Lauchlan was told that he was being interviewed. In O’Neill’s case the
interviewer avoided the question. But the fact that the question was asked at all is
quite revealing. The appellants had been through this process before. They knew
what to expect. It must have been obvious to them that the reason why they were
not being charged was that the police did not yet have enough evidence to do so.
They were both asked directly whether they had killed Mrs McGarrigle. But, in
the context in which these questions were being put, it cannot be said that that this
amounted to an official notification that they were likely to be prosecuted. All the
indications during the prolonged questioning to which they were subjected were
that the police were not in a position to report the proceedings with a view to
prosecution without having obtained more evidence.
38. The attitude of the police at this stage was entirely understandable. They
had not yet established that Mrs McGarrigle was dead. Her body had not been
found. In the absence of any evidence to show where, when and how she had died,
they were in no position to initiate criminal proceedings against the appellants for
her murder. All they had were suspicions based on a volume of circumstantial
evidence. That was why so much of the appellants’ questioning was directed to
trying to establish where her body was. It was not until 5 November 1998 that the
missing person investigation was scaled down due to lack of progress. The police
were still seeking additional evidence by means of press releases, including
publications in the Big Issue magazine in June 2002. In August 2003 they
received hearsay information to the effect that the appellants had killed Mrs
McGarrigle and disposed of her remains in a wheelie bin which was thrown off the
back of a boat in Largs. That led to the further inquiries that resulted in their being
in a position to charge the appellants on 5 April 2005. That was not the state of
affairs when they were being interviewed.
39. I would therefore hold that the date when the reasonable time began was 5
April 2005, and not 17 September 1998 when the appellants were detained and
interviewed under section 14 of the 1995 Act.
Page 17 Apparent bias
(a) the facts
40. The indictment which was served on the appellants on 10 September 2008
contained eighteen charges, of which the first three concerned the murder of Mrs
McGarrigle. The remaining charges were of, or were related to, sexual offences
against children. On 17 July 2009, after a preliminary hearing, Lord Kinclaven
ordered that the murder charges were to be separated from the sexual offences
charges. The consequence of his determination was that the appellants were tried
in 2010 in a sequence of two trials before the same judge, Lord Pentland, but
before different juries and with a different Advocate Depute. The trial of the sexual
offences charges took place between 26 April and 12 May 2010. The Crown
accepted pleas of not guilty to some of those charges before the trial began. It
withdrew the libel on a number of others at the close of the Crown case, and a
submission of no case to answer was sustained with regard to one more. In the
result three charges went to the jury, all of which related to sexual offences against
boys who were aged 14 and 6 years old at the time of the offences. O’Neill was
found guilty on all three, and Lauchlan was found guilty on two of them.
41. When the verdicts had been returned and recorded the Advocate Depute
moved for sentence. He tendered a schedule of previous convictions in respect of
each appellant. He drew attention to the fact that Lauchlan had been convicted in
1998 of two charges of sodomy and four charges of shameless indecency and that
in 2005 he had been convicted of offences under sections 2 and 3 of the Sex
Offenders Act 1997. He also drew attention to similar convictions in 1998 and
2005 in the case of O’Neill. He then mentioned that the Crown had lodged an
application for a lifelong restriction order, for which a risk assessment under
section 210B of the 1995 Act (as inserted by section 1 of the Criminal Justice
(Scotland) Act 2003) would be required, to be made in both cases. He asked that
consideration of this matter be continued until the conclusion of the trial on the
murder charges. He explained, for the benefit of the jury who had not been made
aware of the fact that there was to be another trial, that for this reason there had
been an embargo on public reporting of the trial on the sexual offence charges. He
said that, as there would be a prejudice to the next trial if the judge were to do any
public act at that stage, the matter should be continued. Having ascertained that
the solicitor advocates for the defence had no objection to the continuation, the
trial judge addressed the appellants.
42. The judge told them first that, as he intended to make the appropriate order
under the Sexual Offences Act 2003, he was required by the legislation to state to
them both that they had again been convicted of sexual offences to which Part 2 of
Page 18 that Act applied and that they were subject to the notification requirements
contained in that Act. He told them that the court had certified those facts, and that
the clerk of court would give them a copy of the relevant certificate together with a
notice which gave further details of the notification requirements with which they
must comply. Then, while the jury were still present, he said this:
“Having regard to your very serious records, and to the nature of the
offence of which you stand convicted on the present indictment, it is
clear that you are both evil, determined, manipulative and predatory
paedophiles of the worst sort. Beyond that I intend to reserve any
observations which I may have to make until the outcome of the next
stage of the proceedings is known; that is after you have been tried
on the remaining charges to which the advocate depute has made
reference. I shall therefore adjourn all questions of sentence until
Friday of next week, and I shall continue consideration of the
Crown’s motion made under section 210B of the 1995 Act for an
assessment order.”
43. No objection was made at the start of the murder trial on 17 May 2010 to
the fact that Lord Pentland was to preside over that trial too, nor was any motion
made that he should recuse himself. Two events occurred in the course of that trial
which were later commented on. The first occurred on 27 May 2010 when an
adjournment of the trial was sought on behalf of O’Neill by his solicitor advocate,
Mr Carroll. He was said to be suffering from a severe headache and unable to
follow what was going on. This was said to be a chronic problem for which he had
a prescribed medication which he required to take. The trial judge did not accede
to this request immediately but closely questioned Mr Carroll and invited the
Advocate Depute to make enquiries with the prison authorities. During a brief
adjournment O’Neill was given paracetamol and then indicated that he was fit to
continue. The second event occurred when a Crown witness, DC Wilkie, became
incoherent and obviously unwell while being cross-examined by Mr Carroll. The
judge adjourned the proceedings immediately to allow the witness to receive
medical treatment. He was fit to continue and complete his evidence the next day.
(b) the issue
44. This issue was raised on behalf of O’Neill only in the Appeal Court. As has
already been explained in para 10 above, it was the subject of an amended note of
appeal which was lodged shortly before the hearing before the Appeal Court of his
application under section 107(8) of the 1995 Act. Mr McVicar did not seek to
adopt it on behalf of his client Lauchlan, although he pointed out that if the
argument was sound its effect would be to his client’s benefit.
Page 19 45. The devolution issue seems only to have emerged in the course of oral
argument in the Appeal Court when it was considering the applications for leave to
appeal to this court. It decided to give leave on this issue because it was
recognised that the splitting of the trial into two phases before two juries and the
resulting presentation of previous convictions and the judge’s remarks at the end of
the first phase were very unusual circumstances. Mr Carroll said that the fact that
the trial judge was shown his client’s previous convictions was not important to his
argument, as it was not unusual for a judge to see the accused’s previous
convictions before the start of or during a trial: O’Hara v HM Advocate 1948 JC
90; Leggate v HM Advocate 1988 JC 127; 1995 Act, section 275A (as inserted by
section 10(4) of the Sexual Offences (Procedure and Evidence) (Scotland) Act
2002). But they were the trigger, as he put it, for the comments by the trial judge
on his client’s character. It was to those comments that he directed his argument.
46. The issue has been focussed in the sixth issue in the statement of facts and
issues on the appellants’ behalf in these terms:
“Whether (i) the conduct of the trial judge can be said to have given
rise to a legitimate concern as to the appearance of an absence of
impartiality in the context of the appellants’ right to a fair trial by an
impartial tribunal in terms of article 6(1) of the European Convention
on Human Rights; and (ii) if the answer to issue 6(i) is affirmative,
whether the act of the Lord Advocate in persevering with the trial
was incompatible with the appellants’ rights under article 6(1).”
(c) the authorities
47. The test for apparent bias which was laid down in Porter v Magill [2001]
UKHL 67; [2002] 2 AC 357 was designed to express in clear and simple language
a test which was in harmony with the objective test which had been applied by the
Strasbourg court. It is set out in para 103 of the judgment in that case in these
terms:
“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.”
In Lawal v Northern Spirit Ltd [2004] 1 All ER 187, [2003] ICR 856, para 14 Lord
Steyn said that the purpose and effect of the modification which it made to the
common law were to bring the common law rule into line with the Strasbourg
jurisprudence. Lord Bingham of Cornhill made the same observation in R v
Page 20 Abdroikov [2007] UKHL 37, [2007] 1 WLR 2679, para 14 when he said that there
is now no difference between the common law test of bias and the requirement
under article 6 of an independent and impartial tribunal. In Szypusz v United
Kingdom (Application No 8400/07) (unreported) given 21 September 2010, para
39 the Strasbourg court acknowledged that its jurisprudence had been taken into
account in Porter v Magill, and set out that test. It also acknowledged, in para 40,
the further guidance in Helow v Secretary of State for the Home Department
[2008] UKHL 62, 2009 SC (HL) 1, [2008] 1 WLR 2416 with regard to the
attributes of the fair-minded observer as background to the issue that it had to
decide.
48. The court is invited in this case to examine the allegation of apparent bias
after the proceedings that are said to have been affected by it have taken place.
But the principles to be applied are the same as those which determine the question
whether, because of things he has said or done previously, the judge should recuse
himself. So it may be helpful to look at cases in which it was the judge’s decision
not to recuse himself that was in issue.
49. In President of the Republic of South Africa v South African Rugby Football
Union, 1999 (4) SA 147, 177 the Constitutional Court of South Africa made these
comments on the position of judges (in that case, members of the Constitutional
Court itself) who, it was said, ought to have recused themselves:
“The question is whether a reasonable, objective and informed
person would on the correct facts reasonably apprehend that the
judge has not or will not bring an impartial mind to bear on the
adjudication of the case, that is a mind open to persuasion by the
evidence and the submissions of counsel. The reasonableness of the
apprehension must be assessed in the light of the oath of office taken
by the judges to administer justice without fear or favour; and their
ability to carry out that oath by reason of their training and
experience. It must be assumed that they can disabuse their minds of
any irrelevant personal beliefs or predispositions. They must take
into account the fact that they have a duty to sit in any case in which
they are not obliged to recuse themselves. At the same time it must
never be forgotten that an impartial judge is a fundamental
prerequisite for a fair trial and a judicial officer should not hesitate to
recuse herself or himself if there are reasonable grounds on the part
of a litigant for apprehending that the judicial officer, for whatever
reasons, was not or will not be impartial.”
50. That passage was quoted with approval by the Court of Appeal in Locabail
(UK) Ltd v Bayfield Properties Ltd [2000] QB 451, para 21. It referred also in
Page 21 paras 22-24 to three extracts from Australian authorities about the duty of the
judge to hear and determine the cases allocated to him which it found to be
persuasive: In re JRL, EX arte CJL (1986) 161 CLR 342, 352; In re Ebner (1999)
161 ALR 557, para 37; Clenae Pty Ltd v Australia and New Zealand Banking
Group Ltd [1999] VSCA 35. In para 25 of Locabail there is an extensive
discussion of the grounds on which objection to a judge could or could not
reasonably be taken. While it was emphasised that every application for recusal
must be decided on the facts and circumstances of the individual case, the court
noted 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.”
51. In JSC BTA Bank v Mukhtar Ablyazov (Recusal) [2012] EWCA Civ 1551,
the question was whether a judge had been right not to recuse himself as the
nominated judge of trial, in circumstances where he had had to hear, prior to trial,
an application to commit one of the parties for contempt of court and had found a
number of contempts proven, by reason of the doctrine of apparent bias in Magill v
Porter. Rix LJ, delivering a judgment with which Toulson and Maurice Kay LJJ
agreed, pointed out in para 65 that, although the principles of apparent bias are
now well established and were not in dispute in that case, the application of them
is wholly fact sensitive. In para 70 he said that it seemed to him that the critical
consideration is that what the first judge does, he does as part and parcel of his
judicial assessment of the litigation before him:
“He is judging the matter before him, as he is required by his office
to do. If he does so fairly and judicially, I do not see that the fairminded and informed observer would consider that there was any
possibility of bias.”
That was a case of civil litigation, but I do not think that there is any difference in
principle between the position of a judge in a case of that type and the situation
where it is said that there is apparent bias on the part of a judge in a criminal trial.
52. In Helow v Secretary of State for the Home Department, the question was
whether there was a real possibility that Lady Cosgrove was biased by reason of
her membership of an association and her receipt of its quarterly publication which
contained some articles which were fervently pro-Israeli and antipathetic to the
PLO, of which the appellant was a member. Among the reasons that were given
Page 22 for holding that there was not any real possibility of bias in her case were that the
context is crucially important: para 4, by myself; that Lady Cosgrove was a
professional judge with years of relevant training and experience: para 23, per
Lord Rodger of Earlsferry; and the taking of the judicial oath, albeit as more of a
symbol than of itself a guarantee of the impartiality which any professional judge
is by training and experience expected to practise and display: para 57, per Lord
Mance.
(d) discussion
53. What then of this case? The obvious starting point is the context. When he
made his remarks, Lord Pentland was addressing the appellants in the performance
of his judicial function. The fair-minded and informed observer would appreciate
that he was a professional judge who had taken the judicial oath and had years of
relevant training and experience. He would hear and understand the context in
which the remarks were made. They were made in open court from the bench
while he was performing his duty as a judge at the trial. He would appreciate too,
that when the judge was presiding over the next trial, he would be doing so in the
performance of his duty to preside over that case. He would understand, of course,
that while the facts were a matter for the jury, the judge too had functions to
perform which required him to be impartial. But it would only be if the judge
expressed outspoken opinions about the appellants’ 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 would doubt
the professional judge’s ability to perform those duties with an objective judicial
mind.
54. The context indicates that nothing like that occurred here. The judge had
just told the appellants, as he was required to do, that they were subject to the
notification requirements. He had been told by the Advocate Depute that an
application was to be made for a risk assessment order. He had been asked to
defer consideration of it until after the conclusion of the murder trial, but the
appellants were entitled to be given some indication as to what they might expect.
His comments on the appellants’ character were directly relevant to that issue. For
reasons that would have been obvious in the light of the Advocate Depute’s
submissions, the judge had to restrict himself to those few comments. He told them
that he intended to reserve any further observations until the outcome of the next
stage of proceedings was known. The observer would also understand that, if the
judge had been passing sentence on the appellants, the remarks he made would
have been entirely appropriate as background to the sentences which he would
have been obliged to pass.
Page 23 55. There is one other circumstance which, in this case, can properly be taken
into account. The appellants and their solicitor advocates were all present when the
remarks were made, and they were all there again at the commencement of the
murder trial. Yet no objection was made by any of them either at the end of the
sexual offences trial or at the start of the murder trial to the fact that Lord Pentland
was to preside over the murder trial. The fair-minded and informed observer would
not have overlooked this fact. It might well have seemed to him to be odd, if there
was any real basis for an objection, that those with the most immediate interest did
not take the opportunity of raising the point at that stage. Mr Carroll’s explanation
was that a challenge at that stage would not have been likely to succeed, as the
judge would almost certainly have rejected it. He also said that his objection would
have fallen away if the murder trial had been conducted fairly. He pointed to the
contrast between the judge’s handling of the incident when he told the judge that
his client was unwell and his handling of the incident when DC Wilkie became ill
in the witness box.
56. I am not persuaded by Mr Carroll’s explanation. The point which he had to
answer is not, I would stress, one of waiver. It is simply that the fair-minded and
informed observer would take account of the fact that it did not seem to occur to
those with the most obvious interest to do so, or their advisors, that the judge had
trespassed beyond the proper performance of his duties when he commented on the
appellants’ character. As for his conduct of the trial, the judge’s concern that no
proper reason had been given for interrupting the proceedings when he was told
that the appellant was not well and his reaction to the sudden illness of DC Wilkie
in the witness box were both readily understandable. I do not find here any
grounds for doubting his impartiality. But the only relevant question is whether he
should, or should not, have been conducting the trial at all in view of the
comments he made at the end of the previous trial about the appellants’ character.
57. For these reasons I cannot find any basis for the suggestion that the judge
was apparently biased, and I would reject it. It follows that the Lord Advocate did
not act incompatibly with the appellants’ article 6(1) right to a fair trial by
proceeding with the appellants’ trial on the murder charges before Lord Pentland.
We were addressed on the question whether the appellants waived their right to
found on their Convention right, but I do not need to examine that issue as I do not
accept that their right was breached.
Conclusion
58. I would determine the two compatibility issues that are before us by holding
(1) that the date when the reasonable time began for the purposes of the appellants’
article 6(1) Convention right was 5 April 2005; and (2) that the Lord Advocate’s
act in proceeding with the trial on the murder charges was not incompatible with
Page 24 the appellants’ article 6(1) right to a trial before a tribunal that was independent
and impartial. The proceedings must now be remitted to the High Court of
Justiciary.
Page 25
[2013] UKSC 36
On appeal from: [2012] HCJAC 51; [2012] HCJAC 20
JUDGMENT
O'Neill No 2 (Appellant) v Her Majesty's Advocate
(Respondent) (Scotland)
Lauchlan (AP) (Appellant) v Her Majesty's
Advocate (Respondent) (Scotland)
before
Lord Hope, Deputy President
Lord Kerr
Lord Wilson
Lord Hughes
Lord Toulson
JUDGMENT GIVEN ON
13 June 2013
Heard on 29 and 30 April 2013 Appellant (O’Neill)
John Carroll
Liam Ewing
Ann Ogg
(Instructed by Drummond
Miller LLP)
Appellant (Lauchlan)
William McVicar
Gerard Considine
Liam O’Donnell
(Instructed by Fitzpatrick
and Co)
Respondent
Dorothy Bain QC
Douglas Fairley QC
Susanne Tanner
(Instructed by The
Appeals Unit, Crown
Office)
Respondent
Dorothy Bain QC
Douglas Fairley QC
Susanne Tanner
(Instructed by The
Appeals Unit Crown
Office) LORD HOPE (with whom Lord Kerr, Lord Wilson, Lord Hughes and Lord
Toulson agree)
1. On 10 June 2010 the appellants, William Hugh Lauchlan and Charles
Bernard O’Neill, were found guilty in the High Court of Justiciary at Glasgow of
the murder of Mrs Allison McGarrigle between 21 June and 1 September 1997,
and of a subsequent attempt to defeat the ends of justice by disposing of her body
at sea. The charges of which they were convicted in that trial had been separated
from a number of charges on the same indictment of or relating to sexual offences
against children. Their trial on the sexual offence charges took place before Lord
Pentland between 26 April and 12 May 2010. Their trial on the murder charges,
which is the trial to which this appeal relates, took place (between 17 May and 10
June 2010) before the same judge but with a different jury. The appellants were
sentenced to life imprisonment for the murder, with punishment parts of 26 and 30
years respectively, and to concurrent sentences of eight years imprisonment for
attempting to defeat the ends of justice.
2. The appellants both appealed against their convictions at the second trial
and against their sentences. Lauchlan was granted leave to appeal against his
conviction for murder by the sifting judges, but this was restricted to two grounds
alleging errors by the trial judge. He was also given leave to appeal against
sentence. O’Neill too was granted leave to appeal against sentence, but the sifting
judges refused him leave to appeal against his conviction for murder. The
appellants applied under section 107(8) of the Criminal Procedure (Scotland) Act
1995 (“the 1995 Act”) for leave to appeal against their convictions for murder on
certain grounds which the sifting judges had held were unarguable. On 8 February
2012 Lauchlan was refused leave to appeal on those grounds by the Appeal Court.
O’Neill was given leave to appeal on one ground only which alleged an error by
the trial judge: [2012] HCJAC 20.
3. The appellants then applied for leave to appeal to this court under paragraph
13 of Schedule 6 to the Scotland Act 1998 on some of the grounds on which they
were refused leave on 8 February 2012. On 19 April 2012 the Appeal Court (Lord
Justice Clerk Gill, Lord Hodge and Lord McEwan) gave both appellants leave to
appeal on a ground alleging undue delay. It gave O’Neill leave on another ground
alleging apparent bias on the part of the trial judge arising out of things that had
happened in the presence of the jury at the end of the first trial: [2012] HCJAC 51.
The trial judge had been shown a list of the appellants’ previous convictions after
they had been found guilty of the sexual offence charges, and he then made a
comment about their character, having regard to their records and the nature of the
offences of which they had been convicted.
Page 2 Jurisdiction
4. This court has jurisdiction to hear appeals in relation to criminal
proceedings in the High Court of Justiciary under Part II of Schedule 6 to the
Scotland Act 1998 (“the 1998 Act”). The opening paragraph of Part II is in these
terms:
“3. This Part of this Schedule applies in relation to devolution issues
in proceedings in Scotland.”
The expression “devolution issue” is defined in paragraph 1 of Schedule 6, which
provides:
“1. In this Schedule ‘devolution issue’ means-
(a) a question whether an Act of the Scottish Parliament or any
provision of an Act of the Scottish Parliament is within the
legislative competence of the Parliament,
(b) a question whether any function (being a function which any
person has purported, or is proposing, to exercise) is a function of the
Scottish Ministers, the First Minister or the Lord Advocate,
(c) a question whether the purported or proposed exercise of a
function by a member of the Scottish Government is, or would be,
within devolved competence,
(d) a question whether a purported or proposed exercise of a function
by a member of the Scottish Government is, or would be,
incompatible with any of the Convention rights or with EU law,
(e) a question whether a failure to act by a member of the Scottish
Government is incompatible with any of the Convention rights or
with EU law,
(f) any other question about whether a function is exercisable within
devolved competence or in or as regards Scotland and any other
question arising by virtue of this Act about reserved matters.”
Page 3 5. The Scotland Act 2012 (“the 2012 Act”) made a number of important
changes to this court’s jurisdiction to deal with devolution issues under Schedule 6
to the 1998 Act. They came into effect on 22 April 2013: The Scotland Act 2012
(Commencement No 3) Order 2013 (2013/6 (C1). This is also the relevant date for
the purposes of The Scotland Act 2012 (Transitional and Consequential
Provisions) Order 2013 (2013/7 (S1)) (“the 2013 Order”): see article 1(2) of that
Order. This appeal was heard one week later on 29 and 30 April 2013. Section
36(4) of the 2012 Act provides:
“In paragraph 1 of Schedule 6 (devolution issues), after subparagraph (f) insert –
‘But a question arising in criminal proceedings in Scotland that
would, apart from this paragraph, be a devolution issue is not a
devolution issue if (however formulated) it relates to the
compatibility with any of the Convention rights or with EU law of
(a) an Act of the Scottish Parliament or any provision of an Act of
the Scottish Parliament,
(b) a function,
(c) the purported or proposed exercise of a function,
(d) a failure to act.’”
6. The effect of the exclusion of questions of the kind referred in section 36(4)
of the 2012 Act from the list of devolution issues in paragraph 1 of Schedule 6 to
the 1998 Act is that these questions must now be dealt with as compatibility issues
under the 1995 Act. Section 288ZA(2), which was inserted into the 1995 Act by
section 34(3) of the 2012 Act, provides that “compatibility issue” means
“a question, arising in criminal proceedings, as to –
(a) whether a public authority has acted (or proposes to act) –
(i) in a way which is made unlawful by section 6(1) of the Human
Rights Act 1998, or
Page 4 (ii) in a way which is incompatible with EU law, or
(b) whether an Act of the Scottish Parliament or any provision of an
Act of the Scottish Parliament is incompatible with any of the
Convention rights or with EU law.”
7. Section 288ZB(4), which was inserted into the 1995 Act by section 35 of
the 2012 Act, provides for references of compatibility issues to the Supreme Court
by a court consisting of two or more judges of the High Court of Justiciary.
Subsection (6) of that section provides that, on a reference to it under that section,
the powers of the Supreme Court are exercisable only for the purpose of
determining the compatibility issue. Subsection (7) provides that, when it has
determined a compatibility issue on a reference under that section, the Supreme
Court must remit the proceedings to the High Court. Section 288AA, which was
inserted into the 1995 Act by section 36(6) of the 2012 Act, provides for appeals to
the Supreme Court. It contains the same directions in subsections (2) and (3) as to
the way this court’s powers are to be exercised in the case of appeals as those in
subsections (6) and (7) of section 288ZB which relate to references.
8. Article 2 of the 2013 Order provides:
“(1) A convertible devolution issue is a question arising in criminal
proceedings before the relevant date which –
(a) is a devolution issue;
(b) would have been a compatibility issue had it arisen on or after
that date; and
(c) has not been finally determined before the relevant date.
(2) But a devolution issue arising in criminal proceedings before the
relevant date is not a convertible devolution issue if –
(a) the issue has been referred, or a determination of the issue has
been appealed, to the Supreme Court under Schedule 6 to the 1998
Act; and
Page 5 (b) the hearing of the reference or appeal commences before the
relevant date.”
Article 3(1) provides that, subject to qualifications which do not apply in this case,
a convertible devolution issue becomes a compatibility issue for all purposes on
the relevant date.
9. The allegation of undue delay raised a devolution issue within the meaning
of paragraph 1(d) of Schedule 6 to the 1998 Act. It arose in criminal proceedings
before 22 April 2013, it satisfied the other tests set out in article 2(1) of the 2013
Order and the hearing of the appeal did not commence before 22 April 2013. So it
was a convertible devolution issue, and it has now become a compatibility issue by
virtue of article 3(1). As it has come before the Supreme Court as an appeal against
the determination of that issue by the Appeal Court, it is to be treated as an appeal
under section 288AA(1) of the 1995 Act: 2013 Order, articles 4(2) and 7(2). So
the powers of this court must be exercised in the manner provided for by section
288AA(2) and (3) of the 1995 Act.
10. The allegation of apparent bias was the subject of an amended note of
appeal which had been lodged on O’Neill’s behalf before the hearing before the
Appeal Court of his application under section 107(8) of the 1995 Act. It made no
mention of any act on the part of the Lord Advocate, so it does not appear to have
raised a devolution issue at that stage. But it was submitted on O’Neill’s behalf by
his solicitor advocate when he was applying for leave to appeal to this court that
this allegation did raise a devolution issue: [2012] HCJAC 51. Lord Hodge
explained the position in paras 6 and 7 of the Appeal Court’s opinion:
“6. In additional ground 15 of his grounds of appeal Mr O’Neill
complained about the comments of the trial judge, Lord Pentland, at
the end of the first phase of the trial. We expressed our views on this
ground in paragraphs 81 to 88 of this court’s opinions. Mr Carroll
submitted that the challenge raised a devolution issue as the Lord
Advocate had persevered with the prosecution in the face of what
was evidence of an unfair trial.
7. For the reasons which we stated in those paragraphs we did not
think that the points which Mr Carroll raised were arguable. We
adhere to that view. But we recognise that the splitting of the trial
into two phases before two juries and the resulting presentation of
previous convictions and the judge’s remarks at the end of the first
phase were very unusual circumstances. We are satisfied that it is
appropriate to give leave to appeal on this ground.”
Page 6 11. The way the argument on this ground of appeal proceeded in the Appeal
Court suggests that, as it was not presented as a devolution issue at the stage of the
application under section 107(8) of the 1995 Act, there has been no determination
of that issue by that court against which there could have been an appeal under
paragraph 13 of Schedule 6 to the Scotland Act 1998. But the Appeal Court had
power under paragraph 11 of the Schedule to refer any devolution issue which
arose in proceedings before it to this court, and that is what seems to have
happened in this case. By the same process of reasoning as applies to the allegation
of undue delay, this issue was a convertible devolution issue and is now a
compatibility issue. This means that this court has jurisdiction to consider it, and
that its powers must be exercised in the manner provided for by section 288ZB(6)
and (7) of the 1998 Act.
Undue delay
(a) the issue
12. The period of time relied on in this case extends from 17 September 1998,
when the appellants were detained under section 14 of the 1995 Act on suspicion
of conspiracy to murder, to 10 June 2010 when they were convicted. It was not
until 5 April 2005 that the appellants appeared on petition at Kilmarnock Sheriff
Court on charges which ultimately formed the basis for the charges in the
indictment of which they were convicted. There was a further period until 10
September 2008 when the indictment was served on them, but the focus of
attention at this stage is on that which occurred between 17 September 1998 and 5
April 2005. The question which this court has been asked to decide requires it to
identify the right starting point for the purposes of the reasonable time guarantee in
article 6(1) of the European Convention on Human Rights.
13. The issue was focussed by Lord Hodge in the Appeal Court’s opinion of 19
April 2012 in this way:
“2. Mr McVicar on behalf of Mr Lauchlan sought leave to argue
before the Supreme Court that the decision of that court in Ambrose
v Harris (2011 SLT 1005) had the result that the starting point in the
assessment of reasonable time under article 6 of the European
Convention on Human Rights (“ECHR”) was not, as the Appeal
Court had held in O’Neill v HM Advocate (2010 SCCR 357), the
stage when an accused person appeared on petition but the earlier
stage when the accused was interviewed by the police under caution
in the exercise of their powers under section 14 of the 1995 Act. Mr
Carroll on behalf of Mr O’Neill adopted Mr McVicar’s submissions.
Page 7 3. We have decided to grant leave to appeal on this ground. We set
out our reasoning in paragraphs 25-29 of this court’s opinions but
recognise that the issue raised is one which arises from statements in
a decision of the Supreme Court on which that court may wish to
provide further guidance.”
14. The parties agree that the issue can be formulated in this way: whether for
the purposes of their right to a trial within a reasonable time in terms of article 6(1)
of the European Convention on Human Rights the appellants were “charged” on
17 September 1998. That, say the appellants, is the date that should be taken to be
the starting point. The Crown contends, on the other hand, that the correct starting
point is 5 April 2005. It was suggested by the appellants in the statement of facts
and issues that this court should also say whether or not the period between 17
September 1998 and 10 June 2010 when the appellants were convicted constituted
an unreasonable delay in the process of determination of the charges against them.
But it was accepted during the hearing of the oral argument that this issue would
raise questions of fact which are best left for determination by the Appeal Court.
(b) the facts
15. The deceased, Mrs Allison McGarrigle, had a son named Robert who was
subject to a residential supervision requirement under the Social Work (Scotland)
Act 1968. It required him to live during the week with his father in Kilmacolm but
he was permitted to visit his mother, who was divorced from his father, during the
day on Saturdays. On Saturday 14 June 1997 Robert did not return to his father’s
address after visiting his mother. Instead he and his mother went to Largs, where
they met the appellants and went to live with them in a property which they were
then occupying in that town. On or about 20 June 1997 a drinking session took
place there at which a number of people including the appellants, Mrs McGarrigle
and Robert were present. Mrs McGarrigle was no longer there the following
morning, and she was never seen by Robert again. On 16 February 1998 she was
reported to the police as a missing person by her ex-husband. The exact date when
she was last seen was marked as unknown, but it was noted that she had cashed a
benefit cheque in Rothesay on 12 June 1997.
16. By September 1998 the police enquiry into Mrs McGarrigle’s
disappearance was being referred to by the Procurator Fiscal at Kilmarnock as a
disappearance in suspicious circumstances, and by the Head of the Crown Office
Appeals Unit and Crown Counsel as a murder enquiry. In the meantime, on 17
June 1998, the appellants were convicted of a number of sexual offences including
offences against Robert McGarrigle. These offences had been committed between
March 1993 and 27 July 1996 when Robert and his mother were living close to
where the appellants were then living in Rothesay. On 18 August 1998 the
Page 8 appellants were sentenced in respect of these convictions to periods of 6 years and
8 years imprisonment respectively and became subject to notification requirements
under the Sex Offenders Act 1997. They were taken to Peterhead Prison to serve
their sentences.
17. On 14 September 1998 the Procurator Fiscal at Kilmarnock wrote to the
Governor of Peterhead Prison requesting that the appellants be released into the
custody of the police for questioning. On 17 September 1998 they were taken
from custody and detained by officers of Grampian Police under section 14 of the
1995 Act on suspicion, as that section requires, of having committed an offence
punishable by imprisonment. The offence which they were suspected of having
committed was conspiracy to murder. They were taken to a police station in
Aberdeen where they were each questioned separately by two police officers.
18. Lauchlan was questioned from 11.14 to 16.45 hours, with breaks between
11.51 and 12.25 hours and 15.18 and 16.01 hours. He was cautioned at the start of
his interview. He made it clear when it began that, on the advice of his solicitor,
he would not be answering any questions that were put to him, and he maintained
that attitude throughout what was a long and unproductive interview. One or two
passages are, however, of interest.
19. During the early stages of the interview the police restricted themselves to
asking a series of questions. Lauchlan remained silent in response to all of them.
He was then told (Appendix 1, p 492, MS p 820): “What you’ve got to realize here
is this is not going to go away we are not going to go away.” Shortly afterwards
Lauchlan broke his silence and this conversation took place (Appendix 1, p 497,
MS p 825):
“WL Look if you’re going to charge me with something charge me
I’ve had enough.
DC2 I didn’t mention, I have not mentioned charging you with
anything.
WL If not give this up.
DC2 No I’m interviewing you William okay. I intend to carry out
the interview with or without your co-operation I intend to
carry out the interview.”
Page 9 20. As the interview went on the questioning became more direct. Lauchlan
was asked (Appendix p 512, MS p 840): “Did you murder Allison McGarrigle?”
He did not respond. This question was then put to him (Appendix p 515, MS p
843):
“DC2 …I will ask you for a final time with the weight of the
evidence against you and your friend knowing something about the
disappearance of Allison McGarrigle will you help us to find her
remains?”
There was no response, so the question was put to him again:
“DC2 I’m not asking you at this stage if you killed her. I’m not
asking you at this stage if you know who killed her. I’m asking you
at this stage whether or not you would consider helping us to find her
remains. It’s a separate question. Are you? ….Are you prepared to
help us to find Allison McGarrigle yes or no? Answer that one
question I’ll put to you …. I’ll finish the interview and put the tape
off. So you don’t, you’re not interested in helping us. Canny go any
further than that Wullie”
21. As the interview drew to a close one further attempt was made to elicit a
response (Appendix p 526, MS p 854):
“DC1 …. If you did not have anything to do with Allison
McGarrigle’s death you have no reason not to speak to us, would
you agree wi’ that? You’re not, your refusal to speak to us. The only
reason I can think of is that you have something to do with her death.
or that someone very close to you had something to do with her
death and that out of loyalty you will not tell us. Which is it? Which
is it William? Unless you can come up with another reason why you
should refuse to speak to us about it. It’s got to be one of those two.
So which is it? Convince me otherwise.”
As the interview was about to end these final questions were put (Appendix p 528,
MS p 856):
“DC2 Did you murder Allison McGarrigle? Did you?
Page 10 DC1 Did you kill Allison McGarrigle? Were you present when
someone else did?”
Lauchlan did not answer them. He remained silent.
22. O’Neill was questioned from 10.53 to 16.31 hours, with a break from 13.02
to 14.19 hours. He was cautioned at the start of the interview. He gave his name
and age and said that he was unemployed. But he refused to answer any further
questions, most of which were met by the words “No comment”. Several minutes
after the opening stage of the questioning there was this exchange (Appendix p
534, MS p 862):
“O/N You’re going to charge me in’t you? You’d be as well just
charging me and taking me to court.
DC1 Charlie, Charlie, we’re here, we’ve explained to you what
we’re doing and we’re speaking to you right. It’s as simple as that.
… I am hoping that you might find it within yourself to give us some
assistance, right. We’re no up here to crucify Charlie O’Neill.”
23. As the questioning went on there was no change in O’Neill’s attitude. In
the course of a long narrative of the information that was in the hands of the police
he was told (Appendix p 578, MS p 906):
“I’m asking you quite bluntly Allison McGarrigle’s dead, you’re
involved in her death, you’re the only person that can say how much
or how little involvement you have but from the information that we
have here there is no doubt whatsoever that you are involved in her
death….I’m giving you the opportunity sitting here in this room the
noo tae say tae me, this is what happened, this is how it happened, it
may even be why it happened ah don’t know and here is what you
need to know. Because its no going away Charlie, it’ll never go
away. It’ll never go away.”
Sometime later he was asked (Appendix p 597, MS p 925): “Did you kill her
Charlie? Was she just too much bother for you?” He made no comment in reply.
In the course of the next question he was told directly that the reason why he
would not answer questions was quite simple: “Because you killed her.” At the end
of the interview one of the interviewing officers said (Appendix p 602, MS p 930):
Page 11 “Right what we’ll do at the minute Charlie is we’ll stop the
interview. We’ll need to go and seek some advice.”
24. The appellants were not arrested or charged at the conclusion of their
interviews, but were returned to Peterhead Prison to continue serving their
sentences. Lauchlan was released on licence on 18 January 2002. In March of the
following year, in breach of the notification requirements, he travelled to Spain.
O’Neill was released on licence on 22 May 2003. He too travelled to Spain shortly
afterwards in breach of those requirements and met Lauchlan. On 22 April 2004
they were arrested in connection with the apparent abduction of a fourteen year old
boy. Steps were then taken for them to return to the United Kingdom to face
charges that they were in breach of the notification requirements under the Sex
Offenders Act. On 15 March 2005 they pled guilty to these charges, and on 4 April
2005 they were each sentenced to three years imprisonment. On 5 April 2005 they
were charged with the murder of Allison McGarrigle and with concealing and
disposing of her body in an attempt to pervert the course of justice. They appeared
on petition at Kilmarnock Sheriff Court where they were committed for further
examination and remanded in custody.
(c) articles 6(1) and (3)(c)
25. Article 6(1) of the Convention states that in the determination of his civil
rights and obligations or “of any criminal charge against him”, everyone is entitled
to a fair and public hearing within a reasonable time by an independent and
impartial tribunal established by law. In Attorney General’s Reference (No 2 of
2001) [2003] UKHL 68, [2004] 2 AC 72, para 20, Lord Bingham of Cornhill
analysed the article in this way:
“First, the right of a criminal defendant is to a hearing. The article
requires that hearing to have certain characteristics. If the hearing is
shown not to have been fair, a conviction can be quashed and a
retrial ordered if a fair trial can still be held. If the hearing is shown
to have been by a tribunal lacking independence or impartiality or
legal authority, a conviction can be quashed and a retrial ordered if a
fair trial can still be held. If judgment was not given publicly,
judgment can be given publicly. But time, once spent, cannot be
recovered. If a breach of the reasonable time requirement is shown
to have occurred, it cannot be cured.”
In Dyer v Watson [2002] UKPC D1, [2004] 1 AC 379, 2002 SC (PC) 89, para 73, I
said that these four rights can and should be considered separately, and that a
complaint that one of them has been breached cannot be answered by showing that
Page 12 the other rights were not breached: see also Darmalingum v The State [2000] 1
WLR 2303, 2307-2308, per Lord Steyn. Delay is therefore to be seen as affording
an independent ground of relief, whether or not there was prejudice or any threat to
the fairness of the trial. The fact that an accused person has been convicted after a
fair hearing by a proper court cannot justify or excuse a breach of his guarantee of
a disposal of the charge against him within a reasonable time: Dyer v Watson, para
94.
26. As Lord Bingham observed in Attorney General’s Reference (No 2 of
2001), para 26, the requirement that a criminal charge be heard within a reasonable
time poses the inevitable questions: when, for the purposes of article 6(1), does a
person become subject to a criminal charge? When, in other words, does the
reasonable time begin? That is the question to which this issue is directed.
27. But it is necessary also to notice article 6(3), which states that everyone
“charged with a criminal offence” has certain minimum rights, including “(c) to
defend himself in person or through legal assistance of his own choosing or, if he
has not sufficient means to pay for legal assistance, to be given it free when the
interests of justice so require.” This is because it has been recognised that a person
has a Convention right of access to a lawyer under that article, read in conjunction
with article 6(1), before answering any questions put to him by the police in
circumstances where the questioning might affect his right to a fair trial: Salduz v
Turkey (2008) 49 EHRR 421; Cadder v HM Advocate [2010] UKSC 43, 2011 SC
(UKSC) 13, [2010] 1 WLR 2601.
28. The question posed by article 6(1) read together with article 6(3) is a
different question from that posed by the reasonable time guarantee, although both
questions require a date to be identified. That it should be within a reasonable time
is one of the characteristics required of a hearing by article 6(1): see para 25,
above. So too is the requirement that the hearing is fair. But the answer to the
question whether the hearing is fair may depend on things that happened before it
is known when the hearing will take place, or whether there will be a hearing at all.
So the question can be put this way: when does the person become entitled to that
protection to preserve his right to a fair trial? When, in other words, is he to be
taken to have been “charged” for the purposes of those articles?
29. In Ambrose v Harris [2011] UKSC 43, [2011] 1 WLR 2435, 2012 SC
(UKSC) 53, the questions were raised as to the correct starting point for the
purposes of the right to legal advice under article 6 in accordance with the
principle in Salduz. In para 62 I said:
Page 13 “The correct starting point, when one is considering whether the
person’s Convention rights have been breached, is to identify the
moment as from which he was charged for the purposes of article
6.1. The guidance as to when this occurs is well known. The test is
whether the situation of the individual was substantially affected:
Deweer v Belgium [1980] 2 EHRR 439, para 46; Eckle v Germany
[1982] 5 EHRR 1, para 73. His position will have been substantially
affected as soon as the suspicion against him is being seriously
investigated and the prosecution case compiled: Shabelnik v Ukraine
(Application No 16404/03) (unreported) given 19 February 2009,
para 57. In Corigliano v Italy [1982] 5 EHRR 334, para 34 the court
said that, whilst ‘charge’ for the purposes of article 6.1 might in
general be defined as the official notification given to the individual
by the competent authority of an allegation that he has committed a
criminal offence, as it was put in Eckle’s case 5 EHRR 1, para 73, it
may in some instances take the form of other measures which carry
the implication of such an allegation.”
As the Appeal Court indicated when it gave leave to appeal on this ground, it is
with reference to this passage that further guidance is needed, as the appellants’
argument is that the date of their police interviews should be taken as being the
date when the reasonable time begins: [2012] HCJAC 51, paras 2 and 3.
30. Of the four cases decided by the Strasbourg court to which I referred in para
62 of Ambrose, however, only Shabelnik v Ukraine was concerned with the
protection that is afforded by article 6(3)(c). Corigliano and Eckle were concerned
with the reasonable time guarantee, and Deweer was concerned with the question
whether the proceedings were within the scope of the article. The discussion in
Shabelnik, para 52, of the manner in which articles 6(1) and (3)(c) are to be
applied makes the point that article 6 may be relevant before a case is sent for trial,
if and so far as the fairness of the trial is likely to be seriously prejudiced by an
initial failure to comply with its provisions: see also Imbroscia v Switzerland
(1993) 17 EHRR 441, para 36. In Ambrose v Harris, para 63 I said that the Lord
Advocate’s submission that the protection of article 6(3)(c) was not engaged until
the individual was taken into custody could not withstand the emphasis that the
Strasbourg court puts on the consequences of an initial failure to comply with its
provisions, as in Salduz’s case, para 50 and Zaichenko v Russia (Application No
39660/02) (unreported) given 18 February 2010, para 35. These remarks were
directed to the first of the three characteristics of a hearing required by article 6(1)
– that the hearing is fair – not to the reasonable time guarantee.
31. Yet the court went on in Shabelnik v Ukraine, para 52, to say this:
Page 14 “The manner in which article 6(1) and (3)(c) is to be applied during
the preliminary investigation depends on the special features of the
proceedings involved and on the circumstances of the case. The
moment from which article 6 applies in ‘criminal’ matters also
depends on the circumstances of the case, as the prominent place
held in a democratic society by the right to a fair trial prompts the
Court to prefer a ‘substantive’, rather than a ‘formal’, conception of
the ‘charge’ contemplated by article 6(1).”
This passage suggests, as does the first sentence of para 62 in Ambrose, that the
date when a person becomes subject to a “criminal charge” and the reasonable
time begins is the same as that when the person is “charged” for the purposes of
article 6(3)(c): see also Yankov and Manchev v Bulgaria (Applications Nos
27207/04 and 15614/05) (unreported) given 22 October 2009, para 18, where the
starting point was taken to be the date when the police took a statement from the
applicant in which he confessed to taking part in the commission of the offence
and not the date when a formal charge was directed against him. In some cases the
same date may be equally appropriate for each of these two purposes. But they are
separate guarantees, and it is not obvious that the relevant date for each of them
must be the same.
32. In Salduz v Turkey, para 50 the Grand Chamber pointed out that the right in
article 6(3)(c) is one element, among others, of the concept of a fair trial in
criminal proceedings in article 6(1). In para 55 it said that, in order for the right to
a fair trial to remain sufficiently “practical and effective”, article 6(1) required that,
as a rule, access to a lawyer should be provided as from the first interrogation of a
suspect by the police unless there were compelling reasons to restrict that right. In
Eckle v Germany, on the other hand, the court said in para 73 that in criminal
matters the reasonable time referred to in article 6(1) begins to run as soon as a
person is ‘charged’, and that this may occur on a date prior to the case coming
before the trial court, such as the date of arrest, the date when the person was
officially notified that he would be prosecuted or the date when the preliminary
investigations were opened. In Attorney General’s Reference (No 2 of 2001), para
27 Lord Bingham said that as a general rule the relevant period for this purpose
will begin at the earliest time at which a person is officially alerted to the
likelihood of criminal proceedings against him – a formulation which he hoped
might be easier to apply in this country.
33. The reasoning in paras 50-55 of Salduz v Turkey at no point examines the
meaning of the word “charged” but concentrates instead on the requirements of a
fair trial. This suggests that different approaches can be applied to the two
guarantees as to what is the relevant date. Article 6(3)(c), which applies where a
person is “charged with a criminal offence”, must now be read in a way that makes
the guarantee of a fair trial practical and effective. The first interrogation of a
Page 15 suspect may take place, and often does, before the person is officially alerted to the
likelihood of criminal proceedings against him. To wait until the stage is reached
when there is sufficient evidence to bring a charge before the suspect has the right
of access to a lawyer could seriously prejudice his right to a fair trial. So the
focus, for the purposes of this part of article 6, is on the state of affairs when the
suspect is first interrogated.
34. Contrast that with the focus of the reasonable time guarantee in article 6(1).
It is on the running of time, not on what is needed to preserve the right to a fair
trial. Its rationale is that a person charged should not remain too long in a state of
uncertainty about his fate: Wemhoff v Federal Republic of Germany (1968) 1
EHRR 55, para 18; Stögmuller v Austria (1969) 1 EHRR 155, para 5. As Lord
Bingham said in Attorney General’s Reference (No 2 of 2001), para 16, a person
who is facing conviction and punishment should not have to undergo the additional
punishment of protracted delay, with all the implications that it may have for his
health and family life. So the date as from which time runs is taken to be the date
as from which his position has been substantially affected by the official
notification. Practice as to how these matters are handled varies from state to state,
but in the United Kingdom this could well be some time after the date when he
was first subjected to police questioning.
(d) discussion
35. It is, of course, plain that the appellants were entitled to the protection of
article 6(1) read together with article 6(3)(c) on 17 September 1998 when they
were interviewed. Salduz v Turkey had not yet been decided, nor had Cadder v HM
Advocate. So they were not offered the protection of having a lawyer present
during the police questioning. In the event the absence of a lawyer made no
difference, because the appellants knew perfectly well that they were entitled to
remain silent and were able steadfastly to resist all attempts to persuade them to
provide the police with answers that might incriminate them. Their position was,
however, indistinguishable from that of the appellant in Cadder. Like him, they
were being questioned as detainees under section 14 of the 1995 Act. They were
also being questioned as suspects. In Ambrose v Harris, para 63, I said that the
moment at which the individual is no longer a potential witness but has become a
suspect provides as good a guide as any as to when he should be taken to have
been charged for the purposes of article 6(1). For completeness I should have said
“for the purposes of article 6(1) read in conjunction with article 6(3)(c)”, as it is
the guarantee of a fair trial that the Salduz protection seeks to serve.
36. I would hold therefore that the date as from which reasonable time begins to
run is the subject of a separate guarantee from the guarantee that the trial will be
fair, and that it requires to be approached separately. It is not enough that the
Page 16 appellants were being subjected to questioning in circumstances that might have
affected their right to a fair trial. The question is whether they were charged on that
date, in the sense indicated by Eckle v Germany, para 73, as explained by Lord
Bingham in Attorney General’s Reference (No 2 of 2001), para 27. Were they
officially notified that they would be prosecuted as it was put in Eckle, or officially
alerted to the likelihood of criminal proceedings against them as it was put by Lord
Bingham, when they were being interviewed?
37. The appellants were certainly not at any stage of their interviews “charged”
in the formal sense. They both asked the police whether they were going to be
charged, and they both received indications to the contrary: see paras 19 and 22,
above. Lauchlan was told that he was being interviewed. In O’Neill’s case the
interviewer avoided the question. But the fact that the question was asked at all is
quite revealing. The appellants had been through this process before. They knew
what to expect. It must have been obvious to them that the reason why they were
not being charged was that the police did not yet have enough evidence to do so.
They were both asked directly whether they had killed Mrs McGarrigle. But, in
the context in which these questions were being put, it cannot be said that that this
amounted to an official notification that they were likely to be prosecuted. All the
indications during the prolonged questioning to which they were subjected were
that the police were not in a position to report the proceedings with a view to
prosecution without having obtained more evidence.
38. The attitude of the police at this stage was entirely understandable. They
had not yet established that Mrs McGarrigle was dead. Her body had not been
found. In the absence of any evidence to show where, when and how she had died,
they were in no position to initiate criminal proceedings against the appellants for
her murder. All they had were suspicions based on a volume of circumstantial
evidence. That was why so much of the appellants’ questioning was directed to
trying to establish where her body was. It was not until 5 November 1998 that the
missing person investigation was scaled down due to lack of progress. The police
were still seeking additional evidence by means of press releases, including
publications in the Big Issue magazine in June 2002. In August 2003 they
received hearsay information to the effect that the appellants had killed Mrs
McGarrigle and disposed of her remains in a wheelie bin which was thrown off the
back of a boat in Largs. That led to the further inquiries that resulted in their being
in a position to charge the appellants on 5 April 2005. That was not the state of
affairs when they were being interviewed.
39. I would therefore hold that the date when the reasonable time began was 5
April 2005, and not 17 September 1998 when the appellants were detained and
interviewed under section 14 of the 1995 Act.
Page 17 Apparent bias
(a) the facts
40. The indictment which was served on the appellants on 10 September 2008
contained eighteen charges, of which the first three concerned the murder of Mrs
McGarrigle. The remaining charges were of, or were related to, sexual offences
against children. On 17 July 2009, after a preliminary hearing, Lord Kinclaven
ordered that the murder charges were to be separated from the sexual offences
charges. The consequence of his determination was that the appellants were tried
in 2010 in a sequence of two trials before the same judge, Lord Pentland, but
before different juries and with a different Advocate Depute. The trial of the sexual
offences charges took place between 26 April and 12 May 2010. The Crown
accepted pleas of not guilty to some of those charges before the trial began. It
withdrew the libel on a number of others at the close of the Crown case, and a
submission of no case to answer was sustained with regard to one more. In the
result three charges went to the jury, all of which related to sexual offences against
boys who were aged 14 and 6 years old at the time of the offences. O’Neill was
found guilty on all three, and Lauchlan was found guilty on two of them.
41. When the verdicts had been returned and recorded the Advocate Depute
moved for sentence. He tendered a schedule of previous convictions in respect of
each appellant. He drew attention to the fact that Lauchlan had been convicted in
1998 of two charges of sodomy and four charges of shameless indecency and that
in 2005 he had been convicted of offences under sections 2 and 3 of the Sex
Offenders Act 1997. He also drew attention to similar convictions in 1998 and
2005 in the case of O’Neill. He then mentioned that the Crown had lodged an
application for a lifelong restriction order, for which a risk assessment under
section 210B of the 1995 Act (as inserted by section 1 of the Criminal Justice
(Scotland) Act 2003) would be required, to be made in both cases. He asked that
consideration of this matter be continued until the conclusion of the trial on the
murder charges. He explained, for the benefit of the jury who had not been made
aware of the fact that there was to be another trial, that for this reason there had
been an embargo on public reporting of the trial on the sexual offence charges. He
said that, as there would be a prejudice to the next trial if the judge were to do any
public act at that stage, the matter should be continued. Having ascertained that
the solicitor advocates for the defence had no objection to the continuation, the
trial judge addressed the appellants.
42. The judge told them first that, as he intended to make the appropriate order
under the Sexual Offences Act 2003, he was required by the legislation to state to
them both that they had again been convicted of sexual offences to which Part 2 of
Page 18 that Act applied and that they were subject to the notification requirements
contained in that Act. He told them that the court had certified those facts, and that
the clerk of court would give them a copy of the relevant certificate together with a
notice which gave further details of the notification requirements with which they
must comply. Then, while the jury were still present, he said this:
“Having regard to your very serious records, and to the nature of the
offence of which you stand convicted on the present indictment, it is
clear that you are both evil, determined, manipulative and predatory
paedophiles of the worst sort. Beyond that I intend to reserve any
observations which I may have to make until the outcome of the next
stage of the proceedings is known; that is after you have been tried
on the remaining charges to which the advocate depute has made
reference. I shall therefore adjourn all questions of sentence until
Friday of next week, and I shall continue consideration of the
Crown’s motion made under section 210B of the 1995 Act for an
assessment order.”
43. No objection was made at the start of the murder trial on 17 May 2010 to
the fact that Lord Pentland was to preside over that trial too, nor was any motion
made that he should recuse himself. Two events occurred in the course of that trial
which were later commented on. The first occurred on 27 May 2010 when an
adjournment of the trial was sought on behalf of O’Neill by his solicitor advocate,
Mr Carroll. He was said to be suffering from a severe headache and unable to
follow what was going on. This was said to be a chronic problem for which he had
a prescribed medication which he required to take. The trial judge did not accede
to this request immediately but closely questioned Mr Carroll and invited the
Advocate Depute to make enquiries with the prison authorities. During a brief
adjournment O’Neill was given paracetamol and then indicated that he was fit to
continue. The second event occurred when a Crown witness, DC Wilkie, became
incoherent and obviously unwell while being cross-examined by Mr Carroll. The
judge adjourned the proceedings immediately to allow the witness to receive
medical treatment. He was fit to continue and complete his evidence the next day.
(b) the issue
44. This issue was raised on behalf of O’Neill only in the Appeal Court. As has
already been explained in para 10 above, it was the subject of an amended note of
appeal which was lodged shortly before the hearing before the Appeal Court of his
application under section 107(8) of the 1995 Act. Mr McVicar did not seek to
adopt it on behalf of his client Lauchlan, although he pointed out that if the
argument was sound its effect would be to his client’s benefit.
Page 19 45. The devolution issue seems only to have emerged in the course of oral
argument in the Appeal Court when it was considering the applications for leave to
appeal to this court. It decided to give leave on this issue because it was
recognised that the splitting of the trial into two phases before two juries and the
resulting presentation of previous convictions and the judge’s remarks at the end of
the first phase were very unusual circumstances. Mr Carroll said that the fact that
the trial judge was shown his client’s previous convictions was not important to his
argument, as it was not unusual for a judge to see the accused’s previous
convictions before the start of or during a trial: O’Hara v HM Advocate 1948 JC
90; Leggate v HM Advocate 1988 JC 127; 1995 Act, section 275A (as inserted by
section 10(4) of the Sexual Offences (Procedure and Evidence) (Scotland) Act
2002). But they were the trigger, as he put it, for the comments by the trial judge
on his client’s character. It was to those comments that he directed his argument.
46. The issue has been focussed in the sixth issue in the statement of facts and
issues on the appellants’ behalf in these terms:
“Whether (i) the conduct of the trial judge can be said to have given
rise to a legitimate concern as to the appearance of an absence of
impartiality in the context of the appellants’ right to a fair trial by an
impartial tribunal in terms of article 6(1) of the European Convention
on Human Rights; and (ii) if the answer to issue 6(i) is affirmative,
whether the act of the Lord Advocate in persevering with the trial
was incompatible with the appellants’ rights under article 6(1).”
(c) the authorities
47. The test for apparent bias which was laid down in Porter v Magill [2001]
UKHL 67; [2002] 2 AC 357 was designed to express in clear and simple language
a test which was in harmony with the objective test which had been applied by the
Strasbourg court. It is set out in para 103 of the judgment in that case in these
terms:
“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.”
In Lawal v Northern Spirit Ltd [2004] 1 All ER 187, [2003] ICR 856, para 14 Lord
Steyn said that the purpose and effect of the modification which it made to the
common law were to bring the common law rule into line with the Strasbourg
jurisprudence. Lord Bingham of Cornhill made the same observation in R v
Page 20 Abdroikov [2007] UKHL 37, [2007] 1 WLR 2679, para 14 when he said that there
is now no difference between the common law test of bias and the requirement
under article 6 of an independent and impartial tribunal. In Szypusz v United
Kingdom (Application No 8400/07) (unreported) given 21 September 2010, para
39 the Strasbourg court acknowledged that its jurisprudence had been taken into
account in Porter v Magill, and set out that test. It also acknowledged, in para 40,
the further guidance in Helow v Secretary of State for the Home Department
[2008] UKHL 62, 2009 SC (HL) 1, [2008] 1 WLR 2416 with regard to the
attributes of the fair-minded observer as background to the issue that it had to
decide.
48. The court is invited in this case to examine the allegation of apparent bias
after the proceedings that are said to have been affected by it have taken place.
But the principles to be applied are the same as those which determine the question
whether, because of things he has said or done previously, the judge should recuse
himself. So it may be helpful to look at cases in which it was the judge’s decision
not to recuse himself that was in issue.
49. In President of the Republic of South Africa v South African Rugby Football
Union, 1999 (4) SA 147, 177 the Constitutional Court of South Africa made these
comments on the position of judges (in that case, members of the Constitutional
Court itself) who, it was said, ought to have recused themselves:
“The question is whether a reasonable, objective and informed
person would on the correct facts reasonably apprehend that the
judge has not or will not bring an impartial mind to bear on the
adjudication of the case, that is a mind open to persuasion by the
evidence and the submissions of counsel. The reasonableness of the
apprehension must be assessed in the light of the oath of office taken
by the judges to administer justice without fear or favour; and their
ability to carry out that oath by reason of their training and
experience. It must be assumed that they can disabuse their minds of
any irrelevant personal beliefs or predispositions. They must take
into account the fact that they have a duty to sit in any case in which
they are not obliged to recuse themselves. At the same time it must
never be forgotten that an impartial judge is a fundamental
prerequisite for a fair trial and a judicial officer should not hesitate to
recuse herself or himself if there are reasonable grounds on the part
of a litigant for apprehending that the judicial officer, for whatever
reasons, was not or will not be impartial.”
50. That passage was quoted with approval by the Court of Appeal in Locabail
(UK) Ltd v Bayfield Properties Ltd [2000] QB 451, para 21. It referred also in
Page 21 paras 22-24 to three extracts from Australian authorities about the duty of the
judge to hear and determine the cases allocated to him which it found to be
persuasive: In re JRL, EX arte CJL (1986) 161 CLR 342, 352; In re Ebner (1999)
161 ALR 557, para 37; Clenae Pty Ltd v Australia and New Zealand Banking
Group Ltd [1999] VSCA 35. In para 25 of Locabail there is an extensive
discussion of the grounds on which objection to a judge could or could not
reasonably be taken. While it was emphasised that every application for recusal
must be decided on the facts and circumstances of the individual case, the court
noted 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.”
51. In JSC BTA Bank v Mukhtar Ablyazov (Recusal) [2012] EWCA Civ 1551,
the question was whether a judge had been right not to recuse himself as the
nominated judge of trial, in circumstances where he had had to hear, prior to trial,
an application to commit one of the parties for contempt of court and had found a
number of contempts proven, by reason of the doctrine of apparent bias in Magill v
Porter. Rix LJ, delivering a judgment with which Toulson and Maurice Kay LJJ
agreed, pointed out in para 65 that, although the principles of apparent bias are
now well established and were not in dispute in that case, the application of them
is wholly fact sensitive. In para 70 he said that it seemed to him that the critical
consideration is that what the first judge does, he does as part and parcel of his
judicial assessment of the litigation before him:
“He is judging the matter before him, as he is required by his office
to do. If he does so fairly and judicially, I do not see that the fairminded and informed observer would consider that there was any
possibility of bias.”
That was a case of civil litigation, but I do not think that there is any difference in
principle between the position of a judge in a case of that type and the situation
where it is said that there is apparent bias on the part of a judge in a criminal trial.
52. In Helow v Secretary of State for the Home Department, the question was
whether there was a real possibility that Lady Cosgrove was biased by reason of
her membership of an association and her receipt of its quarterly publication which
contained some articles which were fervently pro-Israeli and antipathetic to the
PLO, of which the appellant was a member. Among the reasons that were given
Page 22 for holding that there was not any real possibility of bias in her case were that the
context is crucially important: para 4, by myself; that Lady Cosgrove was a
professional judge with years of relevant training and experience: para 23, per
Lord Rodger of Earlsferry; and the taking of the judicial oath, albeit as more of a
symbol than of itself a guarantee of the impartiality which any professional judge
is by training and experience expected to practise and display: para 57, per Lord
Mance.
(d) discussion
53. What then of this case? The obvious starting point is the context. When he
made his remarks, Lord Pentland was addressing the appellants in the performance
of his judicial function. The fair-minded and informed observer would appreciate
that he was a professional judge who had taken the judicial oath and had years of
relevant training and experience. He would hear and understand the context in
which the remarks were made. They were made in open court from the bench
while he was performing his duty as a judge at the trial. He would appreciate too,
that when the judge was presiding over the next trial, he would be doing so in the
performance of his duty to preside over that case. He would understand, of course,
that while the facts were a matter for the jury, the judge too had functions to
perform which required him to be impartial. But it would only be if the judge
expressed outspoken opinions about the appellants’ 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 would doubt
the professional judge’s ability to perform those duties with an objective judicial
mind.
54. The context indicates that nothing like that occurred here. The judge had
just told the appellants, as he was required to do, that they were subject to the
notification requirements. He had been told by the Advocate Depute that an
application was to be made for a risk assessment order. He had been asked to
defer consideration of it until after the conclusion of the murder trial, but the
appellants were entitled to be given some indication as to what they might expect.
His comments on the appellants’ character were directly relevant to that issue. For
reasons that would have been obvious in the light of the Advocate Depute’s
submissions, the judge had to restrict himself to those few comments. He told them
that he intended to reserve any further observations until the outcome of the next
stage of proceedings was known. The observer would also understand that, if the
judge had been passing sentence on the appellants, the remarks he made would
have been entirely appropriate as background to the sentences which he would
have been obliged to pass.
Page 23 55. There is one other circumstance which, in this case, can properly be taken
into account. The appellants and their solicitor advocates were all present when the
remarks were made, and they were all there again at the commencement of the
murder trial. Yet no objection was made by any of them either at the end of the
sexual offences trial or at the start of the murder trial to the fact that Lord Pentland
was to preside over the murder trial. The fair-minded and informed observer would
not have overlooked this fact. It might well have seemed to him to be odd, if there
was any real basis for an objection, that those with the most immediate interest did
not take the opportunity of raising the point at that stage. Mr Carroll’s explanation
was that a challenge at that stage would not have been likely to succeed, as the
judge would almost certainly have rejected it. He also said that his objection would
have fallen away if the murder trial had been conducted fairly. He pointed to the
contrast between the judge’s handling of the incident when he told the judge that
his client was unwell and his handling of the incident when DC Wilkie became ill
in the witness box.
56. I am not persuaded by Mr Carroll’s explanation. The point which he had to
answer is not, I would stress, one of waiver. It is simply that the fair-minded and
informed observer would take account of the fact that it did not seem to occur to
those with the most obvious interest to do so, or their advisors, that the judge had
trespassed beyond the proper performance of his duties when he commented on the
appellants’ character. As for his conduct of the trial, the judge’s concern that no
proper reason had been given for interrupting the proceedings when he was told
that the appellant was not well and his reaction to the sudden illness of DC Wilkie
in the witness box were both readily understandable. I do not find here any
grounds for doubting his impartiality. But the only relevant question is whether he
should, or should not, have been conducting the trial at all in view of the
comments he made at the end of the previous trial about the appellants’ character.
57. For these reasons I cannot find any basis for the suggestion that the judge
was apparently biased, and I would reject it. It follows that the Lord Advocate did
not act incompatibly with the appellants’ article 6(1) right to a fair trial by
proceeding with the appellants’ trial on the murder charges before Lord Pentland.
We were addressed on the question whether the appellants waived their right to
found on their Convention right, but I do not need to examine that issue as I do not
accept that their right was breached.
Conclusion
58. I would determine the two compatibility issues that are before us by holding
(1) that the date when the reasonable time began for the purposes of the appellants’
article 6(1) Convention right was 5 April 2005; and (2) that the Lord Advocate’s
act in proceeding with the trial on the murder charges was not incompatible with
Page 24 the appellants’ article 6(1) right to a trial before a tribunal that was independent
and impartial. The proceedings must now be remitted to the High Court of
Justiciary.
Page 25
