Lieuwe Hoekstra and Others (Petitioners) v HM Advocate
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hope of Craighead |
| Judgment Date | 02 October 2000 |
| Neutral Citation | 2000 SCCR 1121 |
| Judgment citation (vLex) | [2000] UKPC J1002-1 |
| Court | Privy Council |
| Docket Number | DP Nos. 2, 3, 4, 5, 8 and 9 of 2000 |
| Date | 02 October 2000 |
[2000] UKPC J1002-1
Privy Council
Present at the hearing:-
Lord Slynn of Hadley
Lord Hope of Craighead
Lord Clyde
[Judgment of the Board delivered by Lord Hope of Craighead]
These are six petitions for special leave to appeal from the High Court of Justiciary under paragraph 13 of Schedule 6 to the Scotland Act 1998. They were put out for an oral hearing by the Board on 2nd October 2000. At the conclusion of the oral hearing their Lordships announced that, for reasons to be given later, they had decided to dismiss the petitions. The following are the reasons which their Lordships now give for their decision.
As the circumstances in which these applications have come before the Board are somewhat complicated their Lordships must first provide the following summary of the background.
The petitioners were found guilty on 13th March 1997 in the High Court at Dunfermline of a contravention of section 170 of the Customs and Excise Management Act 1979. Lieuwe Hoekstra and Jan Van Rijs were sentenced to fourteen years' imprisonment. Ronny and Hendrik Van Rijs were sentenced to ten years' imprisonment. All the sentences were backdated to 29th July 1996, which was the date when the petitioners were arrested and taken into custody. They appealed against their conviction, and arrangements were made for their appeals to be heard by the Appeal Court. As it was anticipated that they would be lengthy it was decided that their appeals would be heard in two stages. The hearing of the first stage began on 23rd November 1999. It lasted until 3rd December 1999, when the court made avizandum. Among the issues which the Appeal Court had to consider as part of the first stage were two devolution issues. These were the subject of devolution issue minutes which the appellants had lodged shortly before the hearing was due to commence. One of these related to the prior involvement in the case of counsel who had become an advocate depute. The other alleged that there had been a failure to disclose certain information by the Lord Advocate.
On 28th January 2000 the Appeal Court (Lords McCluskey, Kirkwood and Hamilton) pronounced interlocutors in which they dismissed the devolution issue minutes relating to the involvement in the case of the advocate depute, refused the grounds of appeal which had been argued on the petitioners' behalf at the first stage and directed that the hearing of the remaining grounds of appeal should proceed on 6th March 2000. The effect of these interlocutors was that both of the devolution issues which had been raised by the petitioners at that stage ("the advocate depute issue" and "the disclosure issue") were dismissed. On 31st January 2000 the same court refused the petitioners leave to appeal against its decision to the Judicial Committee. The petitioners then applied to the Judicial Committee for special leave to appeal. Their applications are comprised in the first four of the six petitions which are now before the Board.
On 6th February 2000 an article by Lord McCluskey was published in the Scotland on Sunday newspaper which in due course gave rise to a further issue in the case which the petitioners raised as a third devolution issue. Lord McCluskey had retired from his office as a Senator of the College of Justice on 8th January 2000. His retirement from that office was the occasion for the publication of the article. This was the first of three articles written by him about the Scottish legal system and the Scottish judiciary. On his retirement Lord McCluskey was appointed to sit as a retired judge under section 22 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985. He was sitting in that capacity when the interlocutors of 28th January 2000 were pronounced. At the outset of the hearing of the second stage of the appeal on 6th March 2000 the petitioners submitted that, in view of the tone and content of various comments about the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd 8969) which were contained in his article, Lord McCluskey could not be regarded as impartial in relation to issues of human rights. They submitted that both he and the other judges of the court of which he was a member were disqualified from hearing any further part of the appeal.
When this argument was presented to the court presided over by Lord McCluskey ("the first Appeal Court") the judges of that court were of the opinion that the issue of declinature ought to be considered by a differently constituted bench: Hoekstra v. H.M. Advocate (No. 1) 2000 S.L.T. 602. On 9th March 2000 a differently constituted Appeal Court comprising the Lord Justice General (Lord Rodger), Lord Sutherland and Lady Cosgrove ("the second Appeal Court") was convened to deal with this issue. At the end of this hearing the second Appeal Court pronounced an interlocutor setting aside the first Appeal Court's interlocutors of 28th January 2000 and ordered that any further proceedings in the appeal be heard by a differently constituted bench: Hoekstra v. H.M. Advocate (No. 2) 2000 S.L.T. 605.
At a procedural hearing on 23rd March 2000 which was held to consider how the appeals should proceed the petitioners lodged minutes giving notice of their intention to raise a further devolution issue relating to the decision of the second Appeal Court on 9th March 2000 to set the first Appeal Court's interlocutors of 28th January 2000...
To continue reading
Request your trial
-
"R" v HM Advocate and Another
... ... : see Montgomery v H M Advocate , 2001 SC (PC) 1 , 11-13; Hoekstra v H M Advocate (No 3) , 2001 SC (PC) 37 , 41D-F; Brown v Stott , 2001 ... placed upon the phrase in one provision must be apt for the others too. The interpretation must also take account of the fact that in section ... ...
-
Petitions To The Nobile Officium By William Beck+nat Fraser+luke Mitchell+colin Murphy+alexander Gallagher+petitions Under The Human Rights Acts 1998 By Nat Fraser+alexander Gallagher
...incompetent to determine the issues before it. This approach was not disapproved in the Privy Council (Hoekstra v HM Advocate (No.4) 2000 SCCR 1121, per Lord Hope of Craighead at page 1126). Accordingly, although the order disposing of the relative grounds of appeal was, in terms of section......
-
Kinloch v HM Advocate
...Gilchrist v HM AdvocateUNK 2005 1 JC 34; 2004 SLT 1167; 2004 SCCR 595 Hoekstra v HM Advocate (No 3)SCELR 2001 SC (PC) 37; 2001 SLT 28; [2001] 1 AC 216 Khan v UKHRCUNK (2001) 31 EHRR 1016; 8 BHRC 310; [2000] Po LR 156; [2000] Crim LR 684 Lawrie v MuirSC 1950 JC 19; 1950 SLT 37; 1949 SLT (Not......
-
Brown v Stott (Procurator Fiscal, Dunfermline)
... ... , Dunfermline and (2) Her Majesty's Advocate General for Scotland Appellants and ... Others (such as articles 8, 9, 10 and 11) permit a measure of ... has arisen: British Broadcasting Corporation, Petitioners (No. 2) 2000 S.L.T. 860 , 866L per Lord Kirkwood ... That was what the Board did in Hoekstra and Others v. H.M. Advocate (DP Nos. 2, 3, 4, 5, 8 and 9 ... ...