APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lord Macfadyen Lord Marnoch	[2006] HCJAC 38 Appeal No: MISC. 147/05   OPINION OF LORD OSBORNE   in   PETITION   to the nobile officium   by   GEORGE MACKIE THOMPSON BRYCELAND (aka NELSON) Petitioner;   against   HER MAJESTY'S ADVOCATE Respondent:   _______

 

 

Petitioner: Shaffer, Q.C., Heaney; Bruce Short, Dundee

Respondent: Beckett, Q.C., A.D.; Crown Agent

 

13 April 2006

 

The background

[1] The petitioner was convicted after trial in the High Court at Edinburgh on 11 December 2002 on four charges under section 4(3)(b) of the Misuse of Drugs Act 1971, all relating to class A drugs, and on one charge under section 2 of the Road Traffic Act 1988. He subsequently appealed against that conviction on the ground of misdirection of the jury by the presiding judge. The subject-matter of that appeal is unrelated to the subject-matter of the present petition. That appeal was heard and refused on 6 January 2004.

[2] The background to the petitioner's trial in the High Court at Edinburgh was unusually complicated. Prior to its being held, there had been a number of indictments, diets of trial, and miscellaneous procedure, including a previous petition to the nobile officium of the court. In particular, on 12 July 2002, a trial had commenced in the High Court of Justiciary at Glasgow on an indictment brought against the petitioner, one Steven Millar, and Rosemary Burns Lynch. It was presided over by a particular judge, to whom I shall refer as "the judge in question". At that time, the petitioner was remanded in custody in Perth Prison. The other two accused were on bail. On 12 July 2002 a jury was empanelled and sworn. The court did not sit on 15 July 2002, since that was Glasgow Fair Monday. Nor did it sit on 16 July 2002. When the diet was called again on 17 July 2002, the accused Steven Millar did not appear. In consequence the trial was adjourned to 18 July 2002 to enable the Crown to make enquiries. On 18 July 2002 the accused Steven Millar was still missing. The court, on the motion of the Advocate depute, granted a warrant to apprehend and commit the accused Steven Millar to prison until liberated in due course of law. The court also, on the motion of the Advocate depute, in respect that the Crown wished to proceed to trial against the three accused together, there being no objection, deserted the trial diet pro loco et tempore and discharged the jury, reserving to the Crown the right to raise a new indictment. In addition, the court, on the motion of the Advocate depute and having heard senior counsel for the petitioner, extended the 110 day time limit in the case of the petitioner so that it expired on 17 September 2002, in terms of section 65(4) of the Criminal Procedure (Scotland) Act 1995. That motion had been opposed on the petitioner's behalf. At that time, application was made on the petitioner's behalf for his release on bail until a new trial could take place. It is averred in the present petition that, for the Crown and for the petitioner, on that occasion, conflicting versions of the facts in support of the opposing contentions were advanced. The Crown argued that the petitioner had been complicit or involved in the non-attendance of the accused Steven Millar at that trial and had known all along that he was not going to return to the court after 12 July 2002. For the petitioner, that was denied. In connection with that aspect of the matter, the Crown relied on a tape recording of telephone calls from Perth Prison made by the petitioner after 12 July 2002, which was played to the court. While there was no dispute as to what had actually been said by the petitioner in those telephone calls, a different gloss was put upon the words used by the Crown and senior counsel for the petitioner. The petitioner avers that, in these circumstances, his credibility was thus put sharply in focus. He contends in the petition that the judge in question had to decide between the competing versions. It is averred that he decided in the Crown's favour, granting its motions and refusing the petitioner's application for bail.

[3] The petitioner avers that, in exercising his judicial duty on the occasion just described, the judge in question had to choose between mutually contradictory versions of the facts. The decision he took meant that he rejected the petitioner's version and so found him to be a liar on an important matter, or at least of questionable honesty. Any member of the public present in court on 18 July 2002 was bound to have thought that that was in effect what the judge was declaring. Accordingly, the petitioner avers that from the moment that the judge in question announced his decision on 18 July 2002 he could not have been seen, considered objectively, as impartial and unbiased in relation to the petitioner.

[4] When the petitioner's conviction was the subject of an appeal on 6 January 2004 the bench consisted in two judges who had had no previous connection with the case, and the judge in question. As regards that, the petitioner avers that the lack of impartiality and hence bias, both viewed objectively, of the judge in question towards the petitioner had the effect of disabling him from sitting on the appeal bench. Any reasonable observer at the appeal, knowing what had happened on 18 July 2002 would have said that the judge in question was not impartial in relation to the petitioner when the appeal was argued and decided. Accordingly, he contends that justice was not seen to be done in the appeal. The matter is further elaborated in the petitioner's averments. It is indicated that it was not being suggested that the judge in question in fact lacked impartiality or felt bias towards the petitioner at the appeal, on 18 July 2002, or at any other time. The petitioner believes that, by the time of the appeal, the judge in question had forgotten his involvement in the matters relating to the petitioner which occurred on 18 July 2002. Senior counsel for the petitioner in the appeal had represented him throughout. When he appeared at the appeal, he also had forgotten that the judge in question had presided over the abortive trial in Glasgow and, in particular, had arrived at the decisions made on 18 July 2002. It is also averred that the instructing solicitors had forgotten about the involvement of the judge in question. It is averred that the petitioner himself did remember the former involvement of the judge in question, but only after the appeal hearing was over. Thus no person was able to alert the judge in question to his earlier involvement. The petitioner suggests that, if this could have been done, or, if the judge had himself remembered, he would have disqualified himself from sitting at the appeal. The petitioner believes that, when lists of appeal cases are prepared, efforts are made to exclude judges from a particular appeal, if there has been an earlier judicial involvement with the appellant. It is claimed that, in the petitioner's case, that system failed, probably due to the very long prior history of the case.

[5] In these circumstances, the petitioner claims that only two qualified judges, in the sense of impartial judges, heard the petitioner's appeal. The petitioner claims that for the reasons given, the judge in question was not qualified to sit in the appeal. The petitioner avers that the quorum of three judges required for the appeal against the petitioner's conviction did not exist at the appeal. Accordingly, the proceedings at the appeal and any purported interlocutor relating to them are said to be invalid. In that connection, the petitioner refers to section 103(2) of the 1995 Act and to Hoekstra v H.M. Advocate (No. 2) 2002 S.C.C.R. 367. The petitioner claims to have suffered a wrong in that his right to challenge his conviction in the trial held in Edinburgh has been taken from him. It is contended that the petitioner's right to have his appeal heard and determined according to law has been aborted. No other remedy for that wrong is available to the petitioner, other than the present petition. In the prayer of the petition, the petitioner seeks recall of all purported interlocutors relating to the purported proceedings in the petitioner's appeal, in particular the interlocutor following the purported hearing in such appeal on 6 January 2004 and for an order appointing the petitioner's appeal to be heard at a date to be fixed.

[6] In view of the significance which it assumed in the course of argument before us, it is appropriate to record that there was available to the court a transcript of the proceedings before the judge in question on 12, 17 and 18 July 2002. In announcing his decision to refuse bail to the petitioner, he stated:

"Well, I have listened very carefully to the comprehensive and persuasive submissions by Mr. Shaffer on the matter of bail. I do have to balance these things out and in the circumstances it seems to me that the principal matters I have to consider are first of all a statement apparently made, and I think it is conceded that he did make this statement, on the telephone to a third party along the lines that Mr. Millar has been sorted out for the night and that if he doesn't turn up the following day, Mr. Bryceland should get out. It is, I must say, the phrase sorted out for the night which is of significance. This seems to suggest or it may suggest that there is a connection between Mr. Bryceland's state of knowledge and the second cogent factor in this issue which is the failure of Mr. Millar to turn up this morning for trial. There is also, it would appear, an awareness that in that event the trial would not proceed. The third matter which I take into account is the averment by the Crown that there is a large sum of money available to Mr. Bryceland and these matters are serious.

In view of all these matters, I have come to the view that while it is extremely regretted and unfortunate that someone should be remanded in custody for longer than is necessary, the overall interests of justice require that bail is refused at this time."

[7] The averments made in the petition were intimated to the judge in question and he has furnished the court with a Report in relation to the matter. In that Report he has stated:

"I have no comment to make on the factual history as narrated in the petition to the nobile officium, which so far as I can see, is accurate. I would also confirm that I had no recollection of the original abortive trial when I sat in the appeal court on 6 January 2004. I would add a few comments in supplement of what is contained in the petition.

As indicated in the petition, the original trial which started in Glasgow High Court in July 2002 was deserted on the third day when a co-accused, who had appeared in court on the first two days, failed to turn up. The issue which then arose was whether or not Mr. Bryceland should be admitted to bail. The Crown opposed Mr. Bryceland's application for bail on the grounds that they had evidence of taped telephone calls made by or to Mr. Bryceland while he was in prison, which suggested that he had been complicit in the failure of his co-accused to turn up. No evidence was led, although the contents of the taped telephone calls was (sic) available to the court either in the form of a transcript or by being directly played. Counsel for Mr. Bryceland argued that the proper interpretation of what was said during these calls did not necessarily mean that Mr. Bryceland had been involved in the failure of his co-accused to turn up for the third day of the trial. The view that I think I would have formed was simply that as the Crown had presented a prima facie case that there may have been an attempt to pervert the course of justice, and in the absence of any fuller investigation, then bail should be refused.

The appeal on 6 January 2004 was based on a short technical point (the description given by the appellant's counsel of the only ground of appeal,) which was to the effect that the judge at the second trial of Mr. Bryceland should have given the jury a direction in respect of the evidence of a witness named Skelly. ... The appeal court felt that any issues raised in this area had been fully and correctly covered by the general directions given in the charge by the presiding judge and refused the appeal without giving further reasons."

Submissions for the petitioner

[8] Senior counsel for the petitioner said that the essential question was whether an informed and fair-minded observer of the proceedings in the criminal appeal court on 6 January 2004 would have concluded that there was a real possibility that one of the judges making up that court had an apparent bias. It was submitted that such an observer would so conclude upon the basis of what had occurred before the judge in question on 18 July 2002 in the High Court in Glasgow. He made it quite plain that it was not being suggested that the judge in question was lacking in integrity. As regards the latter proceedings, the important consideration was what should be made of the words acknowledged to have been used by the petitioner in the telephone conversation involving him while he was remanded in Perth Prison. Looking at the terms in which the judge in question announced his decision as regards bail, it was submitted that it was clear that there had been a total rejection by him of the explanation for the language used, advanced by counsel for the petitioner. It was evident that the judge in question considered that there might have been an involvement of the petitioner in an attempt to pervert the course of justice. It was submitted that anyone who had observed the proceedings on 18 July 2002 would have concluded that the judge in question had held the petitioner to be an untruthful person. The fair-minded and informed observer of the appeal proceedings would have remembered what had occurred on 18 July 2002 and would have had difficulty in accepting that the judge in question had forgotten those earlier events. Senior counsel for the petitioner accepted that, if his arguments were correct, there could be serious practical implications for the administration of justice. However, such implications ought not to deter the court from reaching a proper conclusion.

[9] In support of his submissions, senior counsel relied upon a number of reported cases. The first of these, Bradford v McLeod 1985 S.C.C.R. 379, demonstrated that what was important was not the absence of actual bias but whether a situation gave rise to an appearance of bias. In Lawal v Northern Spirit Limited [2003] ICR 856, the House of Lords had authoritatively declared the test to be this. The court must first ascertain all the circumstances which had a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the Tribunal was biased. Reliance was also placed on Kearney v H.M. Advocate (6 February 2006) (unreported). In Davidson v The Scottish Ministers 2005 S.C. (H.L.) 7 the House of Lords made clear that, while the judicial oath was an important protection against bias, it did not constitute a sufficient guarantee to exclude all legitimate doubts. The fact that forgetfulness on the part of a judge was the actual explanation for a failure to disclose some prior involvement in a case was not important; it was the fact of non-disclosure which inevitably would colour the thinking of the fair-minded and informed observer, as appeared from paragraphs 18 and 19. In paragraph 47 it was made clear that, in this context the word "bias" was used as a convenient shorthand but did not infer a pejorative meaning. Gillies v Secretary of State for Work and Pensions 2006 S.L.T. 78 in paragraph 23 showed that what was important was the need to maintain public confidence in the integrity of the administration of justice. The fact that adherence to the standards required might cause difficulties of organisation in a system of justice did not detract from the need to observe the requisite standards, as appeared from De Cubber v Belgium 1984 7 E.H.R.R. 236.

[10] Senior counsel also drew to our attention Locabail (U.K.) Limited v Bayfield Properties Limited [2000] QB 451, in which there was a passage inimical to the petitioner's submissions. In paragraph 18 of that case the court indicated that if a judge did not know of the matter relied upon as appearing to undermine his impartiality, the danger of its having influenced his judgment is eliminated and the appearance of possible bias is dispelled. Furthermore, at paragraph 25 it was said that the mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. In addition, the passage of time was a relevant consideration. Finally, senior counsel relied on Hoekstra v H.M. Advocate (No. 2) 2000 J.C. 391.

 

Submissions for the respondent

[11] The Advocate depute accepted that the nature of the issue before the court was as it had been described by senior counsel for the petitioner. The contention of the petitioner appeared to be that a judge who had made a decision on a bail application was, by reason of that fact, precluded from any further involvement in the case. That was a startling proposition. The cases of Bradford v McLeod and Hoekstra v H.M. Advocate (No. 2) showed that what the court had to be concerned with was the circumstances of each particular case. It had also to be remembered that the fair-minded and informed observer was presumed to have full knowledge of all of the facts.

[12] It was instructive to examine cases decided in relation to Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. One such case was Hauschildt v Denmark 1989 12 EHRR 266. It was there said that the mere fact that a trial judge, or an appeal judge, in a system like the Danish, had also made pre-trial decisions in the case, including those concerning detention on remand, could not in itself justify fears as to his impartiality. Nevertheless, special circumstances might, in any given case be such as to warrant a different conclusion. That approach was also followed in Nortier v The Netherlands 1993 17 E.H.R.R. 273. Reference was made to paragraphs 35 and 36 of the judgment. It was submitted that these cases indicated that the fair-minded and informed observer should reach the view that there was no objective basis for a conclusion of bias on account of involvement in a previous bail application.

[13] The Advocate depute agreed that the present case was unusual. No evidence on the merits of the case had been led in the first trial before the judge in question. Then the issue of bail arose. Examination of the transcript of proceedings showed that the tape recording of the telephone conversations was played to the court. The Crown had had apprehensions regarding the attendance of the petitioner at a trial. That was quite unrelated to the issue of guilt or innocence. There was no question of a charge of attempt to pervert the course of justice being brought against the petitioner. Furthermore, the issue which had arisen for the appeal court was entirely separate from anything that had been considered in connection with the petitioner's bail application. The submissions of the Crown were reinforced by the fact that the fair-minded and informed observer would know that the judge in question, at the time of the appeal court sitting, had no recollection whatsoever of his previous involvement in the case. That was an important consideration, as appeared from paragraph 18 in Lochabail (U.K.) Limited v Bayfield Properties Limited. In all the circumstances, the prayer of the petition should be refused.

 

Decision

[14] Senior counsel for the petitioner was at pains during the course of his submissions to eschew any suggestion that there was any actual bias or lack of integrity on the part of the judge in question in connection with the conduct of the appeal on 6 January 2004. However, quite apart from that, in my opinion there is no factual basis in the circumstances of this case brought to our attention which could support any suggestion of actual bias. It is apparent from the Report of the judge in question in relation to this petition that, when he sat in the appeal court on 6 January 2004, he had in fact no recollection of the original abortive trial and his handling of the petitioner's bail application following its desertion and, indeed, that was accepted by senior counsel for the petitioner. That position is entirely consistent with the other circumstances of the case, in particular, the circumstance that senior counsel for the petitioner himself, his instructing solicitors and the petitioner personally did not remember anything of the involvement of the judge in question at the earlier stage, although the petitioner did remember that, but only after the appeal was concluded.

[15] In Hauschildt v. Denmark supra, a case concerned with similar issues to those arising here, it was said by the European Court of Human Rights in paragraph 46 of the judgment:

"The existence of impartiality for the purpose of Article 6(1) must be determined according to a subjective test, that is on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, that is ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect."

Looking at the circumstances to which I have just referred, in my opinion, it is quite plain that the subjective test of impartiality can be satisfied in this case. The personal impartiality of a judge is to be presumed until there is proof to the contrary. In this case there is, quite simply, no such proof, nor was it suggested that it existed.

[16] Thus it is necessary next to consider what was described as the objective test in that case. In paragraph 48 of the judgment of the court it was said:

"Under the objective test, it must be determined whether, quite apart from the judge's personal conduct, there are ascertainable facts which may raise doubts as to his impartiality. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all, as far as criminal proceedings are concerned, in the accused. Accordingly any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw.

This implies that in deciding whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the accused is important but not decisive. What is decisive is whether this fear can be held objectively justified."

Those remarks were made in the context of a consideration of the impact of Article 6(1) of the European Convention. However, I apprehend that there is now no material difference between the approach just described and that adopted as the common law test of bias, explained in Porter v McGill [2002] 2 AC 357 and quoted to us from Lawal v Northern Spirit Limited. The language used by Lord Hope of Craighead in paragraph 102 of the former case, quoting Lord Phillips of Worth Matravers M.R., giving the judgment of the court in In re Medicaments and Related Classes of Goods (No. 2) [2001] ICR 564 at p. 591 was:

" 'The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the Tribunal was biased.' "

In paragraph 103 of that case, Lord Hope continued:

"I respectfully suggest that your Lordships should now approve the modest adjustment of the test in R v Gough set out in that paragraph. ... I would however delete from it the reference to 'a real danger'. Those words no longer serve a useful purpose here, and they are not used in the jurisprudence of the Strasbourg court. The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased."

In both Hauschildt v Denmark and Nortier v The Netherlands, there are observations to suggest that the mere fact that a trial judge or an appeal judge has also made pre-trial decisions in the case, including those concerning detention on remand, could not of itself justify fears as to his impartiality. Nevertheless in paragraph 51 of the former case it was recognised that special circumstances might, in a given case, be such as to warrant a different conclusion. In these circumstances, in my opinion, it is necessary to examine particularly what occurred in this case on 18 July 2002. It would not be proper simply to conclude that, because what was involved on that occasion was a consideration by the judge in question of an application for bail, the objective test would be satisfied. Proceeding then in that way, looking at what was said by the judge in question in expressing his decision following upon hearing submissions concerning the petitioner's application for bail, I conclude that it cannot be said, as was sought to be argued on behalf of the petitioner, that anyone considering what occurred would conclude that the judge in question had held the petitioner to be a liar. It seems to me that the judge in question was proceeding on the basis that the telephone conversations founded upon by the Crown were accepted to have occurred. The task then was for that judge to balance the various considerations both supporting and militating against the petitioner's application for bail. That was inevitably in the nature of a discretionary exercise. In conducting that kind of consideration it was not necessary for the judge in question to reach a concluded view as to the interpretation to be placed upon the language used in the telephone conversations, which was, in any event, ambiguous. The conclusion reached by the judge in question was that that material might suggest that there was some unspecified connection between the petitioner's state of knowledge and the failure of Mr. Steven Millar to appear on 18 July 2002 for trial. It appears to me that the judge in question also considered that the petitioner had some awareness that, in the event of Mr. Steven Millar not appearing for trial, the trial would not proceed. The judge also took into account averments by the Crown in relation to the availability of a certain sum of money to the petitioner. What is important, it seems to me, is that the judge in question did not reach any concluded view as to whether the petitioner had been a party to an attempt to pervert the course of justice. He simply took into account what he had heard on the tape recording and other relevant factors. Nor did anything that the judge in question said or did on the occasion of the bail hearing suggest to me that he was branding the petitioner a liar, or of questionable honesty. What he was doing was conducting a discretionary exercise as to whether the petitioner should be admitted to bail in the light of all the circumstances of the case. In my opinion, that is what the fair-minded and informed observer would have concluded.

[17] A further factor of importance, it appears to me, is that, by the time that the appeal was heard and determined on 6 January 2004 the judge in question had no recollection of the matters which had occurred earlier. In the light of what was said in Lochabail U.K. Limited v Bayfield Properties at paragraph 18, that would be a factor tending to dispel the appearance of possible bias. The point of time at which the judgment of the fair-minded and informed observer is to be made would be the date on which the appeal was heard and determined.

[18] In all these circumstances, the conclusion which I reach is that, applying the test of the fair-minded and informed observer, the so-called objective test, it is impossible to conclude that there was a real possibility that the judge in question was biased. Thus, there being acknowledged to be no actual bias, the basis of the petition disappears. I would therefore move your Lordships to refuse the prayer of the petition.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lord Macfadyen Lord Marnoch	[2006] HCJAC 38 Appeal No: MISC. 147/05   OPINION OF LORD MACFADYEN   in   PETITION   to the nobile officium   by   GEORGE MACKIE THOMPSON BRYCELAND (aka NELSON) Petitioner;   against   HER MAJESTY'S ADVOCATE Respondent:   _______

 

 

Petitioner: Shaffer, Q.C., Heaney; Bruce Short, Dundee

Respondent: Beckett, Q.C., A.D.; Crown Agent

 

13 April 2006

 

[19] I agree with your Lordship in the chair.

 

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lord Macfadyen Lord Marnoch	[2006] HCJAC 38 Appeal No: MISC. 147/05   OPINION OF LORD MARNOCH   in   PETITION   to the nobile officium   by   GEORGE MACKIE THOMPSON BRYCELAND (aka NELSON) Petitioner;   against   HER MAJESTY'S ADVOCATE Respondent:   _______

 

 

Petitioner: Shaffer, Q.C., Heaney; Bruce Short, Dundee

Respondent: Beckett, Q.C., A.D.; Crown Agent

 

13 April 2006

 

[20] I confess to being less confident than your Lordships that the particular knowledge had by the judge in question of the contents of the tape recorded telephone conversations was not such as might in other circumstances have disabled him from sitting in the petitioner's appeal, whatever may have been the precise nature of the discussion in the Appeal Court. However, for the other reasons given by your Lordship in the chair and having regard, particularly, to senior counsel's acceptance that the judge in question had no recollection of his earlier involvement when presiding in the Appeal Court, I am quite satisfied that there is no merit in the present petition. I accordingly agree that the prayer should be refused.