O'Neill No 2 v Her Majesty's Advocate (Scotland)

The reasonable-time guarantee in article 6(1) of the European Convention on Human Rights is distinct from the protection of access to legal assistance required to secure a fair trial. Time begins when the accused is officially notified of, or officially alerted to, the likelihood of criminal proceedings. Detention and questioning as a suspect do not alone satisfy that test.

Apparent bias is determined by asking whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias. The assessment is fact-sensitive and must consider the judicial context, the judge’s professional training and the proper performance of judicial duties. A failure by those directly affected to object contemporaneously may inform the observer’s assessment, without amounting to waiver.

The appellants were convicted in the High Court of Justiciary of murder and attempting to defeat the ends of justice. They had first been detained and interviewed as suspects in 1998, but were not charged until 5 April 2005. Following appeals and applications to the Appeal Court, both received permission to raise undue delay and O’Neill received permission to allege apparent bias: [2012] HCJAC 20; [2012] HCJAC 51.

The apparent-bias allegation arose because the same judge conducted an earlier sexual-offences trial and the later murder trial. At the conclusion of the first trial, after seeing the appellants’ records, he made strongly adverse comments about their character while addressing notification and risk-assessment matters.

The compatibility issues were whether reasonable time under article 6(1) began with the 1998 interviews or the 2005 charges, and whether proceeding with the murder trial before the same judge infringed the right to an independent and impartial tribunal.

1. The compatibility issues were determined against the appellants and the proceedings remitted to the High Court of Justiciary. Lord Hope delivered the judgment, with which Lord Kerr, Lord Wilson, Lord Hughes and Lord Toulson agreed.

2. The reasonable-time guarantee in article 6(1) is separate from the fair-trial protection secured by article 6(1) read with article 6(3)(c). Access to a lawyer may be required from the first police interrogation because an early failure can prejudice the fairness of a later trial. The reasonable-time guarantee instead protects an accused from remaining too long in uncertainty about prosecution and punishment.

3. For reasonable-time purposes, time begins when the individual is officially notified that prosecution will occur or is officially alerted to the likelihood of criminal proceedings. The broader language in Ambrose v Harris, [2011] UKSC 43, concerned the protection of trial fairness and required that qualification. Suspicion, detention and questioning may engage access-to-lawyer protections without starting reasonable time.

4. The appellants were not formally or substantively charged during the 1998 interviews. The police indicated that they were conducting interviews and still lacked evidence sufficient to initiate murder proceedings. Direct accusations and questions about the victim did not, in that context, constitute official notification of likely prosecution. Reasonable time therefore began on 5 April 2005. Whether the subsequent period was unreasonable remained for the Appeal Court to determine.

5. The apparent-bias test from Porter v Magill, [2001] UKHL 67, asks whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias. Its application is wholly fact-sensitive. The observer takes account of the context, the judicial oath, professional training and the judge’s ability to decide the later case impartially.

6. The trial judge’s remarks were made while performing judicial duties following sexual-offence convictions. They were relevant to notification requirements, a proposed risk assessment and the eventual sentencing exercise. They were neither gratuitous nor outside the proper conduct of the first trial. The lack of a contemporaneous objection was also a relevant circumstance, though the point was not one of waiver. There was no apparent bias, and the Lord Advocate acted compatibly with article 6(1) by proceeding with the murder trial before that judge.

1. United Kingdom Supreme Court: Determined that reasonable time began on 5 April 2005 and that proceeding before the trial judge was compatible with article 6(1). Remitted the proceedings to the High Court of Justiciary: [2013] UKSC 36.

2. High Court of Justiciary, Appeal Court: Granted both appellants permission to appeal on undue delay and O’Neill permission to appeal on apparent bias: [2012] HCJAC 51.

3. High Court of Justiciary, Appeal Court: Refused Lauchlan permission on the relevant additional conviction grounds and granted O’Neill permission on one trial-judge ground: [2012] HCJAC 20.

4. High Court of Justiciary: Convicted both appellants of murder and attempting to defeat the ends of justice.