Yiacoub and another v The Queen

Heard on 9 June 2014

The question in this case is whether the separate court system established by the Courts (Constitution and Jurisdiction) Ordinance 2007 for the Sovereign Base Areas of Cyprus complies in one particular with the common law requirement that justice must not only be done, but clearly be seen to be done.

Under the Ordinance, there are, for both civil and criminal cases, the Resident Judge's Court ("RJC") and the Senior Judges' Court ("SJC"). The present case concerns a criminal prosecution. Criminal trial in the Sovereign Base Areas is by judge or judges without jury. For criminal cases, the court of trial is, by section 29, normally the RJC, with appeal to the SJC.

Judges of the RCJ must be either judicial office holders in Her Majesty's Dominions or professional lawyers with a minimum of ten years since qualification. The court normally sits constituted by a single judge but there are sensible flexible powers for it to be composed where the occasion warrants it by three judges — see section 16. The usual (and current) practice is for there to be a full time Resident Judge.

There are normally only nine judges of the SJC. By section 11(1), all must be full time professional judges from England and Wales, sitting part time and more or less ad hoc in Cyprus. Generally they are Circuit Judges. As such they enjoy security of tenure in England and Wales. They are appointed as Senior Judges by the Administrator of the Sovereign Base Areas on the instructions of the Secretary of State. This follows the recommendation of the Lord Chancellor on the advice of a panel convened under the Chairmanship of the Senior Presiding Judge of England and Wales (a Lord Justice of Appeal). Apart from subsistence allowances, they are unpaid for the additional work in Cyprus.

One of the nine Senior Judges acts as Presiding Judge of the SJC. The current holder of that office is an English Circuit Judge of long experience. He is an ordinary member of the court, but in addition has a co-ordinating administrative function of the kind which the senior member of many courts has. Section 4(3) of the Ordinance provides:

"(3) The disposition and distribution of the duties of the Senior Judges' Court is regulated by the Presiding Judge."

This means that one of the functions the Presiding Judge exercises is to supervise listing in the court and thus to oversee the constitution of the panels to hear cases There is in section 5(3) of the Ordinance an identically worded provision for the Resident Judge to perform the same function for the RJC. Such arrangements are extremely common. In England and Wales such leadership functions are exercised by many judges, not only the Lord Chief Justice and Heads of Division, but also, for example, Resident Judges in a Crown Court, or the Designated Civil or Designated Family Judges in particular geographical areas.

The complication which has arisen in the present case derives from flexible arrangements under which judges of the SCJ may from time to time sit when convenient as judges of the RCJ. The Ordinance provides specifically in section 6(3) that this may be done and specifies that in such circumstances the Senior Judge's powers are limited to those of a judge of the RJC. One of the functions of the Presiding Judge of the SCJ is to determine whether a particular case or category of cases justifies a court of three rather than of one in the RCJ: see section 16(3). It is no doubt sensible for Senior Judges sometimes to form the court of trial in a criminal case, and this happened in the present proceedings. The trial court consisted of three Senior Court Judges, including the Presiding Judge, all sitting in their capacity as judges of the RCJ. One defendant pleaded guilty. Three others contested the case; they were acquitted of one charge but convicted of the others.

Two of the defendants appealed against their convictions. They sought to challenge the factual findings of the RCJ on the evidence. Appeal is as of right, so it was necessary for a division of the SCJ to be constituted to hear the appeal. Because the trial court had consisted of three judges, a new panel of three Senior Court Judges was convened to hear the appeal. In the ordinary way, the arrangements for this were overseen by the Presiding Judge under section 4(3), who thus nominated another Senior Judge, who had not been a member of the trial court, to chair the panel of three for this purpose. That other judge then made arrangements for two other members of the court to sit with him. The appeal was dismissed by the SCJ.

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