Hoekstra v HM Advocate (No.3)
| Jurisdiction | Scotland |
| Judgment Date | 09 March 2000 |
| Neutral Citation | 2000 SCCR 367 |
| Date | 09 March 2000 |
| Docket Number | No 48 |
| Court | High Court of Justiciary |
JC
LJ-G Rodger, Lord Sutherland and Lady Cosgrove
Procedure—Solemn procedure—Declinature of jurisdiction—Appeal Court hearing and unanimously refusing various grounds of appeal principally involving alleged violations of European Convention on Human Rights—Appeal Court chairman publishing article in national newspaper one week after delivering opinion of court—Newspaper article critical of certain aspects of incorporation into Scots criminal law of European Convention rights—Chairman considering that he could not be sufficiently detached to be able to determine motion to decline jurisdiction—Motion heard by differently constituted court—Whether chairman objectively impartial—Whether appeal should be re-heard by differently constituted court—European Convention on Human Rights, art 6(1)1
Four pannels were convicted after trial of contraventions of sec 170(2)(b) of the Customs and Excise Management Act 1979 and appealed against conviction on grounds alleging, inter alia, violations of their rights under arts 6 and 8 of the European Convention on Human Rights. After various of the grounds had been heard and refused by a quorum of the High Court of Justiciary on 28 January 2000 and leave to appeal to the Privy Council had been refused, the pannels moved the court to decline to hear the remaining grounds of the appeal and to remit them to be heard by a differently constituted court. The ground of challenge to the impartiality of the court was based on the publication by the chairman of the court of an article in Scotland on Sunday one week after he had delivered the unanimous opinion of the court. In the article the chairman had expressed personal views critical of certain aspects of the incorporation into Scots criminal law of European Convention rights. The court remitted the motion to be heard by a differently constituted court before whom the pannels argued that the earlier decision of the court should be set aside and the grounds of appeal re-heard by a differently constituted court.
Held (1) that if one of the judges who sat to hear the appeal could not properly be regarded as impartial, it would be necessary to treat the interlocutor of the court as invalid and accordingly the appropriate course was to set aside the purported interlocutor in the exercise of the High Court's nobile officium, there being no interlocutor which could be regarded as final and conclusive in terms of sec 124(2) of the Criminal Procedure (Scotland) Act 1995 (p 397F–H); (2) that the nature and tone of the language used by the chairman in his article criticizing the European Convention gave rise to a legitimate apprehension that he could not apply that particular branch of the law impartially, whether or not he did in fact do so, in the earlier opinion of 28 January 2000, and he was therefore not objectively impartial (p 401F–G); and (3) that the chairman having been bound to excuse himself, the purported interlocutor of 28 January 2000 had to be set aside so that further proceedings could be heard by a differently constituted court (p 402A–B); and interlocutor of 28 January 2000set aside.
Lieuwe Hoekstra, Jan Van Rijs, Ronny Van Rijs and Hendrik Van Rijs were charged along with other persons on an indictment at the instance of the Right Honourable
the Lord Mackay of Drumadoon, QC, Her Majesty's Advocate, the libel of which set forth a contravention of sec 170(2)(b) of the Customs and Excise Management Act 1979.The pannels pled not guilty and proceeded to trial in the High Court of Justiciary at Dunfermline. After trial, on 20 February 1997, the pannels were found guilty and on 13 March 1997 the first and second pannels were sentenced to 14 years' imprisonment and the third and fourth pannels were sentenced to ten years' imprisonment.
The pannels thereafter appealed against conviction and sentence.
On 7 July 1999 the High Court appointed the appeals to be heard in part and directed various grounds of appeal to be argued on 23 November 1999. After hearing parties the court, comprising Lord McCluskey, Lord Kirkwood and Lord Hamilton, made avizandum.
At advising, on 28 January 2000, the court refused the appeal insofar as relating to the grounds of appeal argued and appointed 6 March 2000 for further grounds of appeal to be heard. At the further hearing of the appeals, the pannels moved the court to decline jurisdiction. On 7 March 2000, the court continued the motions to be heard by a differently constituted court: See Hoekstra v HM Advocate (No 1)SC2000 JC 387.
Cases referred to:
Bradford v McLeod 1986 SLT 244
De Cubber v BelgiumHRC Series A No 86 (1984); 7 EHRR 326
Doherty v McGlennan 1997 SLT 444
Hauschildt v DenmarkHRC Series A No 154 (1989); 12 EHRR 266
Law v Chartered Institute of Patent AgentsELR [1919] 2 Ch 276
Livesey v New South Wales Bar AssociationUNK (1983) 151 CLR 288
Locabail (UK) Ltd v Bayfield Properties LtdUNK [2000] 1 All ER 65
Montgomery v HM Advocate 16 November 1999, unreported, Criminal Appeal Court
Piersack v BelgiumHRC Series A No 53 (1982); 5 EHRR 169
President of the Republic of South Africa v South African Rugby Football Union 1999(4) SA 147(CC)
R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) [2000] 1 AC 119
R v GoughELR [1993] AC 646
Starrs v Ruxton; Ruxton v StarrsSC2000 JC 208
Textbooks, etc referred to:
McCluskey, Law, Justice and Democracy (1987), p 42
The cause called before the High Court of Justiciary, comprising the Lord Justice-General (Rodger), Lord Sutherland and Lady Cosgrove for a hearing on 9 March 2000.
Eo die the opinion of the court was delivered by the Lord Justice-General (Rodger).
Opinion of the Court—[1] The appellants are Lieuwe Hoekstra, Jan van Rijs, Ronny van Rijs and Hendrik van Rijs, who were all convicted in the High Court at Dunfermline on 13 March 1997 of a contravention of sec 170 of the Customs and Excise Management Act 1979. Hoekstra and Jan van Rijs were both sentenced to 14 years' imprisonment backdated to 29 July 1996, while the others were sentenced to ten years' imprisonment, backdated to the same date. The first three appealed against their conviction, while initially Hendrik van Rijs appealed against sentence only. In due course he was allowed to lodge an appeal against conviction also. It is unnecessary to rehearse the various procedural twists and turns which ensued, save to say, first, that eventually the appellants came to instruct Dutch counsel and, secondly, that, because it was anticipated that the proceedings might be lengthy, the court directed that the appeal should be heard in stages. Shortly before the first stage of the appeal was due to be heard on 23 November 1999, the agents for the appellants lodged minutes raising various devolution issues. At the hearing the court comprised Lord McCluskey, in the chair, Lord Kirkwood and Lord Hamilton. In the result, only a limited number of grounds of appeal were considered and the court was addressed mainly on the devolution issues. The hearing lasted for ten court days, ending on 3 December 1999 when the court madeavizandum. On 28 January 2000 the Appeal Court issued a single opinion in the name of the court rejecting the various devolution issues and the grounds of appeal which had been argued. On 31 January, without issuing an opinion, the Appeal Court refused the appellants' motion for leave to appeal to the Privy Council on the devolution issues. The appellants then applied to the Privy Council for special leave to appeal but at the time of the hearing before this court those applications had not been determined.
[2] Having refused leave to appeal, the court, comprising the same judges, was due to proceed to deal with the appeal by considering the grounds of appeal which had not been reached in the first hearing. In the order of 28 January, the court directed that the hearing should proceed on Monday, 6 March 2000. On the afternoon of Friday, 3 March, however, the agents for each of the appellants lodged identical minutes respectfully moving “the bench currently comprising the Court of Appeal in this case, to disqualify itself from hearing further submissions in this appeal, on the basis that justice cannot be seen to have been done in the past or be seen to be done in the future to the Minuter by this court”. As we explain in more detail below, the basis for the motion was an article by Lord McCluskey which appeared inScotland on Sunday on 6 February 2000. In the event, on 6 March, when counsel for the fourth appellant addressed the court on behalf of the appellants, he indicated that, despite the wording of the minute, his submission was that a different bench should sit to consider whether the original bench should be disqualified from dealing with any further stages of the appeal. Having considered the submissions, Lord McCluskey held (at paras 5–6 of his opinion dated 7 March) that: “As the author of the article that has given rise to the present motion, and referred to in paragraph 4 of the minute, I am not persuaded that I could sufficiently detach myself from the matters that might have to be considered in order to reach a sound conclusion as to the view that a fair-minded and informed member of the public would be likely to form. I emphasise that I reach this view as the author of the article referred to in the...
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