R v Spear; R v Hastie; R v Boyd; R v Williams and nine other defendants (Conjoined appeals)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWS,MR JUSTICE HOLMAN |
| Judgment Date | 15 January 2001 |
| Neutral Citation | [2001] EWCA Crim 2 |
| Docket Number | No: 200002270/S2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 15 January 2001 |
[2001] EWCA Crim 2
IN THE COURTS MARTIAL APPEAL COURT
Royal Courts of Justice
The Strand
London WC2
Lord Justice Laws
Mr Justice Holman and
Mr Justice Goldring
No: 200002270/S2
MR J Mackenzie appeared on behalf of the Appellants HASTIE & SPEAR
MR G BLADES appeared on behalf of the Appellant BOYD
MR P HAVERS QC & MISS E BELSON appeared on behalf of the Crown
Before the judgment is finally given in this case there is a matter with which it is necessary for the Court to deal. The position is as follows. After the conclusion of the hearing last term the Criminal Appeal Office received two letters from Mr Mackenzie, who acts for Spear and Hastie, respectively dated 1st December and 4th December. The first of these referred to my position as First Junior Counsel to the Treasury, Common Law, before my appointment to the Bench. As is well known, Treasury Counsel represents government departments, including the Ministry of Defence. The second letter referred again to my previous position and also to a passing comment which I had made in the course of argument in the case, which it was suggested showed a bias on my part against the vindication of Convention rights. Mr Mackenzie sought a fresh hearing before a differently constituted tribunal, asserting that I could not objectively be regarded as an independent or impartial judge for the purpose of Article 6(1) of the European Convention on Human Rights. We had in mind to deal with this complaint in the course of our judgment, Mr Mackenzie having set it out very fully in his letters. We intended that he should be replied to to that effect. He has indicated, however, in a later document that his letters were not answered. If that is so we wish to apologise to him for that. We prepared our draft judgment, which is now in the hands of all the parties. As will have been seen, paragraphs 53 to 56 deal with these points raised by Mr Mackenzie. There the view is taken that there is no merit in the application for a fresh hearing and reasons are given.
On 5th January 2001 (that is the date that the document bears) Mr Mackenzie prepared a skeleton argument reiterating the points made in his letters in somewhat greater detail and annexing copies of Strasbourg and municipal authority. He had not by then seen our draft judgment. That was collected from the Royal Courts of Justice on Wednesday 10th January. Mr MacKenzie's skeleton argument was delivered to us however, so far as I am aware, not on 5th January but on the evening of the 11th or the morning of 12th January; after, I assume, he would have received the draft judgment.
We have each of us read and reread the skeleton argument and the attached materials with great care and we have discussed the matter, so as fully to reconsider our earlier view in the light of it. We will, in addition, now hear any further short submissions which Mr Mackenzie may wish to make in support of the skeleton argument. I reiterate, we have read all of the materials. First, I have a question for Mr Blades. Mr Blades, you have seen Mr Mackenzie's skeleton argument and correspondence, I hope?
My Lord, yes.
Do you associate yourself with or adopt any of those points?
My Lord, no.
Mr Mackenzie, would you like to add anything?
Can I say that the date that I drafted the skeleton argument, 5th January, is the day that I sent copies both to Mr Blades, to the prosecution, to Mr Havers and to this Court.
I myself did not see it until the 12th.
It is quite correct that I received the copy of the judgment on Wednesday.
The difficulty I have is this. At the end of the judgment, as you rightly pointed out, you have dealt with the basis of my application, I assume on the letter dated 4th December in which I specifically said that I asked for the case to be re-listed so I could make the application in open court. The difficulty I have is this. In your judgment you have ruled against me on the application before I have in fact made the application to this Court.
We proposed to deal with it in our judgment, that is entirely right, but we are now advisedly, and I hope carefully, giving you an opportunity to make any further submissions you like. As I have said, we will fully reconsider the matter.
My application is for the application that I would wish to make for a rehearing to be made to another Court, because the difficulty that this Court has is that you have effectively ruled on the application before I have made it.
We will consider that, Mr MacKenzie. Provisionally do you wish to say anything as to the merits of your application?
I would, yes. The letters that I wrote were letters and no more, although in one of them I referred to an earlier letter and said that I wished that to be added to my skeleton. That was purely a precaution in case I was not in a position to present a full skeleton. I was in a state of considerable uncertainty having written a number of letters to the Court and not had an acknowledgement, so I could not even be sure that the letters were being received, let alone acted on.
Is there anything else?
My Lord, as you will see from my skeleton, the basis —and I rely today purely on the two main bases —is your comment during the argument when you refer to Convention rights as being like a iatrogenic disease —if I can quote it in full:
“I have a wholly unorthodox fear, which I am sure I am not allowed to voice or even entertain, that Convention rights bear some similarity to iatrogenic disease. I suspect that until these points were taken, fuelled by the Convention, nobody dreamt of supposing that there was unfairness in the president system.”
That is taken from the transcript. I have, after greater consideration, put forward my interpretation of those remarks in this form. You were expressing the view that Convention rights generally have no intrinsic merit, and that there would be no expectation of an entitlement to such rights were it not for the existence of the Convention. The second interpretation that I put on it is that you were saying it would not have occurred to the appellants or their solicitor, ie me, that there could be any basis for an objection to the system of permanent president had it not been for the existence of the Convention, that you were acknowledging that the views you were expressing were inappropriate ones.
I would have to submit, unfortunately, that you were showing yourself to have an unreasoned prejudice against the Convention and that you considered the appellant's case based on the Convention to be cynical and without merit. I would provide the Court with this information. The Findlay case was one that I was involved in from the very beginning, in 1990, and I presented by way of affidavit evidence in his case to the Divisional Court, through counsel, setting out broadly the same sort of arguments that I have set out on behalf of these appellants in this case. That was under domestic law, not under the Convention; although once the Divisional Court had rejected Mr Findlay's application, the application was then made to the European Human Rights Commission.
The other basis on which I make this application for a rehearing is your previous appointment before being appointed to the bench as first Junior Treasury Counsel, Common Law. It is my understanding that you, as with other senior Treasury Counsel at that time, were appointed to the High Court without becoming Queen's Counsel. That has to appear to the appellants in this case as some form —in some form as a reward for your period as Treasury Counsel, that this should have been declared to the appellants so that they could make an assessment as to whether you could comply with the requirements of Article 6 in terms of impartiality.
I have set out the authorities that I think are of assistance to the Court. The Wettstein v Swizerland case is one which sets out the principles that were being dealt with by this Court during the substance of the appeal at great length and deals with the question of subjective and objective impartiality in the court. The case of Piersack v Austria —and I have set that out in the skeleton, page 7 —is a more detailed authority —page 6, I am sorry. It may well be that on the authority of that case, although it is a somewhat old case now, the objective basis could not be made out solely on your previous appointment. But this application is placed firmly on both features of the case, your comments during argument and your previous appointment. I then pray in aid the authority of Locabail v Bayfield. There is one very short pronouncement in the judgment in Locabail where I think Lord Bingham said, and this is paragraph 15, page 9 of my skeleton:
“By contrast, a real danger of bias might well be thought to arise if on any question of issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt upon his ability to try the issue with an objective judicial mind. In most cases we think the answer one way or the other will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of refusal.”
It is the appellants' case that you lack subjective and objective impartiality and that this matter should be heard under Convention law and domestic law by another court by way of a rehearing.
Mr Havers, there is the question whether we should...
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