Arthur Sharp Kearney v HM Advocate
| Jurisdiction | UK Non-devolved |
| Judgment Date | 06 February 2006 |
| Neutral Citation | [2005] UKPC D1,2006 SCCR 130 |
| Docket Number | No 1 |
| Date | 06 February 2006 |
| Court | Privy Council |
Judicial Committee of the Privy Council
Lord Bingham of Cornhill, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood
Administration of justice - Temporary judges - Criminal trial - Whether Lord Advocate involved in appointment of temporary judge - Whether temporary judge enjoyed security of tenure throughout period of appointment - Whether independent and impartial tribunal - European Convention on Human Rights and Fundamental Freedoms, Art 6(1)
Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms provides: "In the determination of his civil rights and obligations and 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."
The appellant appeared for trial in the High Court of Justiciary. The case proceeded to trial before a temporary Lord Commissioner of Justiciary. The appellant was convicted by the jury. The temporary judge sentenced him to a total of ten years' imprisonment. The appellant appealed against conviction. He argued, inter alia, that the temporary judge was not an independent and impartial tribunal, since he had been appointed by the Scottish Ministers one of whom was the Lord Advocate, and that the Lord Advocate's acts in calling the case, leading evidence, inviting the jury to convict, and seeking to support the convictions were ultra vires since they were incompatible with the appellant's right to a fair trial. The appeal was heard by a court of five judges in the High Court of Justiciary. The court refused the appeal. The appellant appealed with leave to the Judicial Committee of the Privy Council.
Held that: (1) the Lord Advocate had for all practical purposes withdrawn completely from any involvement in the reappointment of temporary judges after the period of their current appointment had come to an end, and these matters were now exclusively under the control of the Lord President as head of the judiciary, subject to consultation with the Justice Minister (paras 5, 6, 45, 46, 52); (2) the temporary judge enjoyed security of tenure throughout the period of the appointment (paras 7, 48-52); (3) the well-informed and reasonable observer, having considered the facts, would not conclude that there was a real risk that the temporary judge was biased; the security of tenure which he enjoyed during the period of his appointment, together with the fact that issues as to the work that he was to be employed to do and as to his re-appointment at the expiry of that period were in the hands not of the Lord Advocate but of the Lord President, provided the guarantees that were needed to meet the requirements of independence and impartiality guaranteed by Art 6(1) of the Convention (paras 8, 9, 53, 55, 62, 64); and appeal dismissed.
Arthur Kearney was charged on an indictment at the instance of the Right Honourable Colin David Boyd QC, Her Majesty's Advocate, the libel of which set forth charges of assault. He pled not guilty and the case came to trial before a temporary Lord Commissioner of Justiciary (RF Macdonald QC) and a jury in the High Court of Justiciary, at Edinburgh, on 22 April 2003. The appellant was convicted and sentenced to a period of ten years' imprisonment.
The appellant appealed to the High Court of Justiciary and lodged a minute raising a devolution issue in terms of sch 6 to the Scotland Act 1998 (cap 46) on the ground that the acts of the Lord Advocate in calling the case, leading evidence, inviting the jury to convict, and seeking to support the convictions were ultra vires since they were incompatible with the appellant's right to a fair trial under Art 6(1) of the European Convention on Human Rights and Fundamental Freedoms, because the temporary judge was not an independent and impartial tribunal.
On 17 December 2004 the High Court of Justiciary, comprising Lord Kirkwood, Lord Hamilton, Lord Macfadyen, Lady Cosgrove and Lord Philip, refused the appeal. The Judicial Committee of the Privy Council granted leave to appeal under para 13 of sch 6 to the Scotland Act 1998.
Cases referred to:
Bryan v UKHRC (1996) 21 EHRR 342
Campbell and Fell v UKHRC (1984) 7 EHRR 165
Clancy v CairdSCUNK 2000 SC 441; 2000 SLT 546; 2000 SCLR 526
Davidson v Scottish Ministers (No 2)UNKUNK [2004] UKHL 34; 2005 1 SC (HL) 7; 2004 SLT 895; 2004 SCLR 991
Findlay v UKHRC (1997) 24 EHRR 221
Lawal v Northern Spirit LtdUNKUNKICRUNK [2003] UKHL 35; [2004] 1 All ER 187; [2003] ICR 856; [2003] IRLR 538
Mackay and Esslemont v Lord AdvocateSC 1937 SC 860; 1937 SLT 577
Meznaric v Croatia App No 71615/01, 15 July 2005, unreported
Piersack v BelgiumHRC (1982) 5 EHRR 169
Porter v MagillUNKELRWLRUNK [2001] UKHL 67; [2002] 2 AC 357; [2002] 2 WLR 37; [2002] 1 All ER 465
Starrs v RuxtonSCUNK 2000 JC 208; 2000 SLT 42; 1999 SCCR 1052
Valente v The QueenUNK (1985) 34 DLR (4th) 161; [1985] 2 SCR 673
Zand v Austria App No 7360/76; [1981] ECC 50
Textbooks etc. referred to:
Fraser of Tullybelton (Lord), "Constitutional Law" in Stair Memorial Encyclopaedia: The Laws of Scotland (Butterworths/Law Society of Scotland, Edinburgh, 1987), vol 5, paras 663-667
McKain, B, The Herald, 26 October 1993
Thomson, JM, Current Law Statutes Annotated 1985 (W Green, Edinburgh, 1986), c 73
The cause called before their Lordships in the Judicial Committee of the Privy Council, comprising Lord Bingham of Cornhill, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood, for a hearing on 28 November 2005.
The court dismissed the appeal for reasons delivered on 6 February 2006-
Lord Bingham of Cornhill- [1] On 10 July 2001 Mr RF Macdonald QC was appointed under sec 35(3) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (cap 40) to act as a temporary judge of the Court of Session on such occasions as the Lord President might from time to time direct. His appointment was to subsist from 16 July 2001 until 15 July 2004. In accordance with the subsection, as amended, the appointment was made by the Scottish Ministers after consulting the Lord President.
[2] During the three-year period of his appointment Mr Macdonald presided at the trial of the appellant Mr Kearney, who was convicted by a jury of two charges as libelled and two more charges subject to deletions. He was sentenced to ten years' imprisonment. He appealed against conviction on several grounds relating to the evidence at the trial and the judge's directions on it. Those grounds have yet to be considered and are not pertinent to the present appeal, which reaches the Board on one ground only, raising a devolution issue. That issue is whether Mr Macdonald, as a temporary judge, was an independent and impartial tribunal within the meaning of Art 6 of the European Convention on Human Rights. The appellant contends that he was not, and that he (the appellant) was accordingly denied a fair trial, since a fair trial must be conducted by a tribunal which is independent and impartial and the Lord Advocate under sec 57(2) of the Scotland Act 1998 had no power to conduct a prosecution before a tribunal lacking those qualities. The Solicitor General for Scotland resists that contention, which was unanimously rejected by five judges sitting in the High Court of Justiciary.
[3] It is not suggested that Mr Macdonald was subject to any actual bias or prejudice of any kind against the appellant. The complaint, based on the judgment of the European Court in Findlay v UK (pp 244, 245, para 73), is that he was not independent, having regard to the manner of his appointment, his term of office, the existence of guarantees against outside pressures and consideration whether he presented an appearance of independence. As to impartiality, the charge is that he was not impartial from an objective viewpoint, since there were not sufficient guarantees to exclude any legitimate doubt in that respect. The European Court acknowledged, as it has done in other cases, that the concepts of independence and impartiality are closely interlinked. It is common ground in this appeal that the test of apparent bias is that formulated by my noble and learned friend Lord Hope of Craighead and adopted by the House of Lords in Porter v Magill (paras 57, 59, 103, 131, 161): whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.
[4] Stripped to its bare essentials, the appellant's charge rests solely on the hybrid role of the Lord Advocate as, under sec 44(1)(c) of the Scotland Act 1998, a member of the Scottish Executive and also, as he has traditionally been, the public officer responsible for the conduct of criminal prosecutions in Scotland. It is not, I think, in doubt that a person exercising judicial functions should not be placed in a position where his freedom to discharge those functions without fear or favour, affection or ill-will, might be or appear to be jeopardised by his relationship with the executive. The question is whether that principle is infringed in the present case by Mr Macdonald's relationship with the Lord Advocate as head of the Scottish prosecution service.
[5] I find nothing in the manner of Mr Macdonald's appointment to suggest that the principle was infringed in any way. As the head of the Scottish judiciary, with overall responsibility (no doubt in conjunction, in practice, with the Lord Justice-Clerk) for the handling and dispatch of business in the higher courts, it is the Lord President who first recognises and can best predict the need for temporary judges to supplement the permanent members of those courts. Thus the evidence shows, as one would expect, that it is he who instigates the making of a temporary appointment and he who suggests the names of suitable appointees. The...
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