Hoekstra v HM Advocate (No 2)
| Jurisdiction | Scotland |
| Judgment Date | 07 March 2000 |
| Neutral Citation | 2000 SCCR 602 |
| Docket Number | No 47 |
| Date | 07 March 2000 |
| Court | High Court of Justiciary |
JC
Lord McCluskey, Lord Kirkwood and Lord Hamilton
Procedure—Solemn procedure—Declinature of jurisdiction—Appeal Court hearing and unanimously refusing various grounds of appeal—Motion by pannels for differently constituted court to hear further grounds of appeal because of Appeal Court chairman's alleged personal bias—Chairman considering that he could not be sufficiently detached to be able to determine motion—Whether appropriate for motion to be heard by differently constituted court
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, 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 an national newspaper one week after he had delivered the unanimous opinion of the court refusing the grounds of appeal. In the article the chairman had expressed personal views critical of certain aspects of the incorporation into Scots criminal law of European Convention rights.
Held (1) (per Lord McCluskey) that where a judge did not consider that he had to accede to a motion to decline jurisdiction, two initial stages required to be considered: first, the judge had to consider whether to invite submissions from the parties as to whether he himself should determine the motion or simply rule that the motion should be heard by another competent judge and, secondly, he had to endeavour to apply the law properly to the circumstances since a judge had a duty to hear the case if not disqualified and was not entitled to decline jurisdiction without proper cause (p 389F–H); and (2) that since the chairman did not consider that he could sufficiently detach himself from the matters which might have to be considered in order to reach a sound conclusion as to the view which a fair-minded and informed member of the public would be likely to form, and since the court would be inquorate without the participation of the chairman, the appropriate course was to have the motion heard by a differently constituted court (pp 390C–E, 390F, 390G); and motion continued.
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'...
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