Lord McLuskey then sat in judgement of Hoekstra which concerned principally Human Rights Issues therefore he was not deemed to be fit to hear such a case when he obviously had made it clear he was against such rights.
Another Scottish case from 2006 is that of Raymond Gilmour a Scottish Criminal Cases Review Commission Referral.
In Gilmour, Lord Marnoch had acted as an Advocate Depute (Prosecutor) against Gilmour in 1982 he was not deemed fit to be hearing his appeal in 2006.
What follows is the hearing in Gilmour:
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.
