APPEAL COURT, HIGH
COURT OF JUSTICIARY
|
Lord Justice Clerk
Lord Abernethy
Lord Marnoch
|
[2006]
HCJAC 73
Appeal
No: XC464/03
OPINION OF THE COURT
delivered by THE LORD JUSTICE
CLERK
in
REFERRAL BY THE SCOTTISH
CRIMINAL CASES REVIEW COMMISSION
in the case of
RAYMOND McKENZIE GILMOUR
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
|
For the Appellant: Shead, Miss
Mitchell; Gordon Ritchie & Co., Paisley
For the Crown: Miss Grahame,
A.D.; Crown Agent
4 October 2006
[1] This referral
relates to the conviction of the appellant at Glasgow High Court on 7
June 1982 on
a charge of rape and murder. The
appellant unsuccessfully appealed against conviction (cf. Gilmour v HM Adv, 1982
SCCR 590). The advising of the appeal
took place on 17 December 1982.
[2] The hearing
in this referral was fixed to begin yesterday.
Shortly before the case was called it was discovered that Lord Marnoch,
who took no part in the prosecution or in the appeal itself, had appeared as
advocate depute at the advising of the appeal.
The minutes of that advising show that the court merely announced its
decision and that there was no further discussion of any kind.
[3] Counsel for
the appellant objected at the outset to Lord Marnoch's taking part in the
referral. He submitted that since Lord
Marnoch had been personally involved in the case on behalf of the Crown in
respect of his appearance at the advising, a fair-minded observer would
apprehend that he had had access to the Crown papers in the case and therefore
that justice would not be seen to be done (cf Haney v HM Adv, 2003 SCCR 253, at para [7]). Counsel did not accuse Lord Marnoch of actual
bias, but he submitted that there would be an appearance of bias.
[4] Lord Marnoch
was an advocate depute in December 1982.
He accepts that he must have appeared for the Crown at the advising; but
he has assured the parties that he has no recollection whatever of the case. Counsel for the appellant accepts Lord
Marnoch's word; but declines to waive his objection nonetheless.
[5] The advocate
depute submitted that in view of Lord Marnoch's assurance to parties, no
reasonable and fair-minded observer would have any cause to apprehend that
there could be a possibility of bias on Lord Marnoch's part.
[6] On the face
of it, when the judge in question has no recollection of the case and when the
referral relates to a purely formal appearance at an advising held more than 24
years ago, there would seem to be no reasonable cause for concern as to that
judge's participation in the present hearing.
In this case, however, two matters cause us concern. The first is that the Criminal Justice
(Scotland) Act 1980 (Sched 2, para 18), by an amendment to section 254(1)
of the Criminal Procedure (Scotland) Act 1975, provided that when allowing an
appeal against conviction, the court, instead of quashing the conviction, was
entitled to set aside the verdict of the trial court and to grant authority to
the Crown, if so advised, to bring a new prosecution in accordance with section
255 of that Act. From this it follows
that when the appeal in the present case was at avizandum, the Crown must have had to consider whether, if the
appeal were to succeed, it should seek authority to bring a new
prosecution. It is reasonable to suppose
that the point was discussed within Crown Office and that Lord Marnoch, as the
advocate depute who was to appear at the advising, may have been involved in that
discussion.
[7] The second matter
that concerns us is the possibility that, if Lord Marnoch took part in any
discussion of the case in 1982 and if he were to take part in this referral, a
detailed consideration of the evidence and of the Crown papers that have been
produced might cause him to recall significant points that would make his
continued participation inappropriate.
[8] We therefore
consider that a fair-minded and informed observer who took these considerations
into account would be justified in thinking that Lord Marnoch's participation
in this hearing lacked the necessary appearance of fairness. Lord Marnoch therefore recuses himself.
