O'Neill and Lauchlan v HM Advocate

The Supreme Court considered two compatibility issues arising from convictions for murder and allied charges: (1) the proper starting point for the running of the reasonable time guarantee in article 6(1) of the European Convention on Human Rights, and (2) whether the Lord Advocate’s decision to proceed with the murder trial before the same judge who had presided at the earlier sexual‑offences trial was incompatible with the appellants’ article 6(1) right to an impartial tribunal. The court distinguished the article 6(1) reasonable‑time inquiry from the article 6(3)(c) right to legal assistance (as explained in Salduz and Cadder). Applying the established tests in Eckle and Attorney General’s Reference (No 2 of 2001) for when a person is ‘charged’ for the purposes of reasonable time, the court held the relevant starting point was 5 April 2005 (the date of formal charge), not 17 September 1998 when the appellants were detained and interviewed. On apparent bias the court applied the objective Porter v Magill test and held that, in context, the trial judge’s remarks were made in the course of judicial functions and did not give rise to a real possibility of bias; the Lord Advocate’s decision to proceed was therefore not incompatible with article 6(1).

Background and facts: The appellants, Lauchlan and O’Neill, were convicted at separate trials in 2010 for the murder of Allison McGarrigle and for attempting to defeat the ends of justice. The murder charges had been separated from earlier sexual‑offences charges and tried before the same judge but different juries. The appellants appealed, advancing grounds including alleged undue delay (period from initial detention in 1998 to conviction in 2010) and apparent bias arising from comments made by the trial judge at the conclusion of the sexual‑offences trial after being shown the appellants’ previous convictions.

Procedural posture and relief sought: The appellants sought leave to appeal on grounds that sifting judges and the Appeal Court had regarded as unarguable or restricted; the Appeal Court granted leave on an undue‑delay ground and on an apparent‑bias ground ([2012] HCJAC 51; [2012] HCJAC 20). Because of changes under the Scotland Act 2012 and the related transitional order the points were treated as compatibility issues under the Criminal Procedure (Scotland) Act 1995 (as amended) and came to the Supreme Court under section 288 AA / references procedure. The relief sought before this court was determination of those compatibility issues (and consequential relief if incompatibility were found).

Issues before the court: (i) For article 6(1) reasonable time, whether the appellants were to be regarded as ‘charged’ from 17 September 1998 (when detained and interviewed under section 14 of the 1995 Act) or from 5 April 2005 (when they were formally charged); (ii) whether the judge’s earlier comments and the Lord Advocate’s decision to proceed with the murder trial before the same judge gave rise to a real possibility of bias and so breached article 6(1).

Court’s reasoning and conclusions:

• Reasonable time: The court explained the distinction between the article 6(1) reasonable‑time guarantee (focused on running of time from the moment a person is officially alerted to the likelihood of prosecution) and the article 6(3)(c) right to legal assistance (focused on safeguarding a fair trial from first interrogation). Relying on Eckle, Attorney General’s Reference (No 2 of 2001) and Strasbourg jurisprudence, the court concluded that the period for reasonable time began when the appellants were officially charged on 5 April 2005, not at the date of their 1998 interviews when the police lacked sufficient evidence to prosecute.
• Apparent bias: Applying the Porter v Magill objective test, the court assessed the context in which the judge’s remarks were made (obligation to inform the convicted men of notification requirements and the pending risk‑assessment application under section 210B) and noted the remarks were limited, made in open court and relevant to matters the judge had to address. The absence of any contemporaneous objection by the defence was also relevant. The court found no real possibility of bias and therefore no incompatibility.

Disposition: The Supreme Court determined the compatibility issues against the appellants (holding the reasonable‑time starting point to be 5 April 2005 and that there was no incompatibility in proceeding with the trial); the proceedings were remitted to the High Court of Justiciary.

This appellate court held (1) that for the purposes of article 6(1) the reasonable‑time period began on 5 April 2005 (the date of formal charge) rather than 17 September 1998 when the appellants were detained and interviewed; and (2) that the Lord Advocate’s decision to proceed with the murder trial before the same judge was not incompatible with the appellants’ article 6(1) right to a tribunal that was independent and impartial. The court applied the established Strasbourg and domestic authorities distinguishing the article 6(1) reasonable‑time enquiry from the article 6(3)(c) right to legal assistance and applied the Porter v Magill test for apparent bias, concluding there was no real possibility of bias given the context and limited nature of the judge’s remarks. The proceedings were remitted to the High Court of Justiciary.

Convictions in the High Court of Justiciary at Glasgow (trial on sexual offences April–May 2010; trial on murder charges May–June 2010); appeals and sentencing challenges were lodged with sifting judges (some leave refused); O’Neill and Lauchlan applied under section 107(8) Criminal Procedure (Scotland) Act 1995. Appeal Court proceedings concerned leave decisions and granted leave on an undue‑delay ground and (for O’Neill) on an apparent‑bias ground: [2012] HCJAC 20; [2012] HCJAC 51. The issues were brought to the Supreme Court as compatibility issues under Schedule 6 / the 1995 Act as amended by the Scotland Act 2012 and related transitional provisions, resulting in this determination: [2013] UKSC 36.