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William Hugh Lauchlan+charles Bernard O'neill V. Her Majesty's Advocate

Judgment Cited authorities 27 Cited in 5 Precedent Map Related
Vincent
JurisdictionScotland
JudgeLord Hodge,Lord McEwan,Lord Justice Clerk
Neutral Citation[2012] HCJAC 20
Published date08 February 2012
Year2012
Date08 February 2012
CourtHigh Court of Justiciary
Docket NumberXC424/10

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Hodge Lord McEwan [2012] HCJAC 20 Appeal No: XC424/10

XC435/10

XC402/10

XC406/10

OPINION OF THE LORD JUSTICE CLERK

in

THE APPLICATION UNDER SECTION 107(8) OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995

by

(1) WILLIAM HUGH LAUCHLAN and (2) CHARLES BERNARD O'NEILL

Applicants;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

For the first Applicant: McVicar, Considine, sol advs; Capital Defence Lawyers

For the second Applicant: J Carroll, A Ogg, sol advs; Drummond Miller LLP; McClure Collins

For the Crown: Bain QC; Crown Agent

8 February 2012

[1] I agree with the Opinion that is to be delivered by Lord Hodge and with his conclusions. I therefore propose to your Lordships that we should dispose of these cases in accordance with Lord Hodge's conclusions.

[2] At the hearing in these applications the solicitor advocate for Charles O'Neill submitted that there was an appearance of bias in the procedural decisions made by Lord Hardie and Lord Brailsford in these cases and in the conduct of Lord Pentland at the trial.

[3] The appearance of bias, even where actual bias does not exist, is of itself sufficient to invalidate a judicial decision. For there to be public confidence in our legal system justice must be done and be seen to be done.

[4] If an appellate pleader should apprehend that there was an appearance of bias in the proceedings in the court below, for whatever reason, it is his duty to complain of the matter to this court courteously but fearlessly. It is the duty of the court in that event to be sedulous in considering the merits of the complaint.

[5] But the duty to complain of an appearance of bias arises only where there is reasonable cause to think that the proceedings lacked the appearance of impartiality that is essential to the proper administration of justice.

[6] I understood the solicitor advocate for Charles O'Neill to base his submissions on that question on his client's subjective reactions to the matters of which he complained. Those submissions, in my view, were misconceived. We have to apply an objective test by considering the reactions of a fair-minded and informed observer.

[7] Applying an objective test in that way, I cannot see how such an observer would conclude that on any of the points of complaint, there was any real possibility of bias.


APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Hodge Lord McEwan [2012] HCJAC 20 Appeal No: XC424/10

XC435/10

XC402/10

XC406/10

OPINION OF LORD HODGE

in

THE APPLICATION UNDER SECTION 107(8) OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995

by

(1) WILLIAM HUGH LAUCHLAN and (2) CHARLES BERNARD O'NEILL

Applicants;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

For the first Applicant: McVicar, Considine, sol advs; Capital Defence Lawyers

For the second Applicant: J Carroll, A Ogg, sol advs; Drummond Miller LLP; McClure Collins

For the Crown: Bain QC; Crown Agent

8 February 2012

[8] This is an application under section 107(8) of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act") by William Hugh Lauchlan and Charles Bernard O'Neill who were convicted at the High Court in Edinburgh of certain sexual offences on 12 May 2010, and on 12 June 2010 of the murder of Mrs McG and attempting thereafter to defeat the ends of justice by disposing of her body at sea. Because the charges relating to the sexual offences had been separated from the charges of the latter two crimes, the trial took place in two parts in front of different juries.

[9] The charges in the first part of the trial of which the accused were found guilty were the following:

"(5) on an occasion between 1 June 2003 and 21 June 2003, both dates inclusive, the exact dates being to the Prosecutor unknown, at 10 Fleming Terrace, Irvine, you CHARLES BERNARD O'NEILL did assault IY, born 4 July 1988, c/o Strathclyde Police, Irvine, drug him, take hold of him by the body, tickle him, rub him on the body, pull him down onto a bed, remove his lower clothing and penetrate his hinder parts by means unknown to his injury.

(7) between 14 April 2004 and 20 April 2004, both dates inclusive, at a car park at Caprabo Supermarket, Avenida de Albir de Alfaz de Pi El Albir, Spain, within motor home the registration number of which is meantime to the Prosecutor unknown, you WILLIAM HUGH LAUCHLAN and CHARLES BERNARD O'NEILL did assault DPW, born on 25 November 1989, c/o Fife Constabulary, Fife, detain him against his will within said motor home, struggle with him, repeatedly attempt to kiss him, remove your clothing in his presence, attempt to induce him to consume controlled drugs, conceal him within a locked wardrobe, urinate on him, hold him down, and attempt to pull down his trousers and have unnatural carnal connection with him: CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995, Section 16B;

(10) on various occasions between 10 December 2007 and 23 March 2008, both dates inclusive, the exact dates being to the Prosecutor meantime unknown, at 38 Mavisbank Avenue, Shieldhill, Falkirk, The Holmcliffe Hotel, Carshalton Road, Blackpool, The Palace Hotel, Prince Street, Peterhead, The Metro Inn, West Beancross Farm, Polmont, Falkirk, Whitehaven, the Lake District, Glasgow and Aberdeen and elsewhere in the United Kingdom, you WILLIAM HUGH LAUCHLAN and CHARLES BERNARD O'NEILL having on at least one earlier occasion met or communicated with SA, born 6 September 2001, c/o Central Scotland Police, Falkirk, by means of the telephone directly or through his mother, PR or JG, both c/o Central Scotland Police, Falkirk, said SA being a person under 16 years of age, did while not reasonably believing that said person was 16 or over, intentionally meet said person and intend to engage during or after the meeting in unlawful sexual activity involving said person or in the presence of said person: CONTRARY to the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005, Section 1."

[10] The charges of which the accused were convicted in the second part of the trial were as follows:-

"(2) on 21 June 1997 at 16A Waterside Street, Largs or elsewhere to the Prosecutor meantime unknown, you CHARLES BERNARD O'NEILL and WILLIAM HUGH LACHLAN having between 23 June 1994 and 21 June 1997 engaged in criminal sexual activity with R McG, born 15 December 1983, c/o Strathclyde Police, Pollok, then aged between 9 and 13 years, and knowing that A McG, his mother then residing there, was aware of such activity and believing that she intended to report such activity to the authorities did detain her against her will within said house at 16A Waterside Street, Largs, and thereafter assault said A McG, seize hold of her neck, compress her throat and did murder her and you did previously evince malice and ill will towards said A McG;

(3) between 21 June 1997 and 1 September 1997, both dates inclusive, at 16A Waterside Street, Largs and elsewhere in Ayrshire meantime to the Prosecutor unknown, having committed the crime libelled in charge (2) hereof and being conscious of your guilt in respect thereof you CHARLES BERNARD O'NEILL and WILLIAM HUGH LAUCHLAN did

(a) remove the body of A McG, now deceased, from said premises;

(b) transport said body to Largs Beach and conceal same under rocks there;

(c) thereafter recover said body and deposit same in a bin or similar container and transport same onto a boat; and

(d) deposit said bin or similar container and the body of said A McG into the sea,

and this your did with intent to conceal or destroy evidence in respect of said crime and with intent to defeat the ends of justice and you did attempt to defeat the ends of justice."

[11] Mr Lauchlan has been granted leave to appeal against his conviction for the sexual offences and on two grounds in relation to his conviction for murder and attempting to defeat the ends of justice (grounds 4 and 7). He has also been granted leave to appeal the punishment part of his life sentence. Mr O'Neill was granted leave to appeal concerning the sufficiency of evidence in relation to the sexual offences charges (but not charge 10). Otherwise the sifting judges refused him permission to argue his grounds of appeal. Mr Lauchlan and Mr O'Neill seek leave under section 107(8) to found on grounds of appeal which the sifting judges have ruled are not arguable.

William Hugh Lauchlan

(a) The murder charge: sufficiency of evidence

[12] Mr McVicar, solicitor advocate, submitted that the trial judge had erred in rejecting the submission on behalf of Mr Lauchlan of no case to answer under section 97 of the 1995 Act. The evidence against Mr Lauchlan was, he submitted, only circumstantial and there was no basis on which the jury could be satisfied that he was an actor in her death or was guilty art and part of her murder. At most the evidence supported his involvement in an attempt to defeat the ends of justice by disposing of Mrs McG's body.

[13] I consider that there is no substance in this submission and that the sifting judges were correct in their conclusion that this ground of appeal was not arguable. As the advocate depute submitted, while Mrs McG's body was never found, there was a strong circumstantial case against both accused in relation to her murder and the disposal of her body which contained ample corroboration.

[14] There was evidence that Mrs McG and her son, R McG, had met the accused in Rothesay and that over a period of three years the accused had groomed R McG and sexually abused him. Social workers gave evidence that the accused behaved as if they owned R McG and that Mr Lauchlan behaved in a domineering manner towards Mrs McG and R McG in care proceedings. In June 1997 Mrs McG and R McG had been staying in the flat at 16A Waterside Street, Largs, which Mr Lauchlan and Mr O'Neill occupied. There was evidence from, among others, Mr Colin Higgins, which showed that each of the accused hated and...

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