O’Neill v Her Majesty’s Advocate No 2: SC 13 Jun 2013

The appellants had been convicted of murder, it being said that they had disposed of her body at sea. They now said that the delay between being first questioned and being charged infringed their rights to a trial within a reasonable time, and questioned whether they had has an impartial judge, he having also conducted a separate trial of them on different matters after which he had described them as ‘evil, determined, manipulative and predatory paedophiles of the worst sort’.
Held: The appeals failed, and the cases were remitted to the High Court of Justice. Article 6(3)(c) focussed on matters when the suspect is first interrogated: to wait until there was sufficient evidence to charge before the suspect has the right of access to a lawyer could seriously prejudice his right to a fair trial. This contrasted with the reasonable time guarantee of article 6(1): it relates to the running of time, not on what is needed to preserve the right to a fair trial. A person should not remain too long in uncertainty. Time runs from the date which the suspect’s position is substantially affected by the official notification.
In this case the initial question did not amount to the first charge as required.
As to the allegation of bias, only if the judge expressed outspoken opinions about the appellants’ character which were entirely gratuitous, and only if the occasion for making them was plainly outside the scope of the proper performance of his duties, would a fair minded and informed observer doubt the judge’s ability to perform those duties with an objective judicial mind.

Lord Hope, Deputy President, Lord Kerr, Lord Wilson, Lord Hughes, Lord Toulson
[2013] UKSC 36, [2013] 2 Cr App R 34, [2013] HRLR 25, [2013] 1 WLR 1992, 2013 SCL 678, 2013 SLT 888, 2013 GWD 21-410, [2013] WLR(D) 231, 2013 SCCR 401, UKSC 2012/0149
Bailii, WLRD, Bailii Summary, SC Summary, SC
European Convention on Human Rights 6(1) 6(3)(c), Scotland Act 1998 Sch 6, Scotland Act 2012
England and Wales
See AlsoLauchlan and Another v HM Advocate HCJ 5-Jun-2009
The appellants were charged with murder. They appealed against an extension of time given to allow the prosecution to proceed.
Held: The appeal failed. . .
See AlsoHM Advocate v Lauchlan and Another SCS 17-Jul-2009
Decision as to preliminary issues raised. . .
See AlsoHM Advocate v Lauchlan and Another HCJ 14-Jan-2010
. .
See AlsoHM Advocate v Lauchlan and Another HCJ 2-Jul-2010
. .
CitedAmbrose v Harris, Procurator Fiscal, Oban, etc SC 6-Oct-2011
(Scotland) The appellant had variously been convicted in reliance on evidence gathered at different stages before arrest, but in each case without being informed of any right to see a solicitor. The court was asked, as a devolution issue, at what . .
See AlsoLauchlan and Another v Her Majesty’s Advocate HCJ 8-Feb-2012
. .
See AlsoLauchlan and Another v HM Advocate HCJ 19-Apr-2012
. .
See AlsoO’Neill v The United Kingdom ECHR 13-Nov-2012
. .
CitedDeweer v Belgium ECHR 27-Feb-1980
The applicant, a Belgian butcher, paid a fine by way of settlement in the face of an order for the closure of his shop until judgment was given in an intended criminal prosecution or until such fine was paid.
Held: Since the payment was made . .
CitedEckle v Germany ECHR 15-Jul-1982
Two fraud prosecutions against the claimants had lasted for 15 and 20 years respectively.
Held: Article 6.1 applies to all stages of criminal proceedings, including sentencing and any appeal. The ‘reasonable time’ in criminal matters, . .
CitedDarmalingum v The State PC 10-Jul-2000
(Mauritius) The constitutional right of a defendant to have his case tried within a reasonable time applied not just to the initial trial but also to any appeal arising from that trial. Where there had been inordinate and inexcusable delay between . .
CitedDyer v Watson and Burrows PC 29-Jan-2002
Parties challenged the compliance of proceedings with the convention where there had been considerable delay.
Held: The reasonable detention provision (article 5(3)) and the reasonable time requirement (article 6(1)) conferred free-standing . .
CitedAttorney-General’s Reference (No 2 of 2001) HL 11-Dec-2003
The house was asked whether it might be correct to stay criminal proceedings as an abuse where for delay. The defendants were prisoners in a prison riot in 1998. The case only came on for trial in 2001, when they submitted that the delay was an . .
CitedSalduz v Turkey ECHR 27-Nov-2008
(Grand Chamber) The applicant had been taken into custody before he was interrogated during his detention by police officers of the anti-terrorism branch of the Izmir Security Directorate.
Held: There had been a violation of art 6(3)(c) of the . .
CitedZaichenko v Russia ECHR 18-Feb-2010
(First Section) The claimant complaned that he had not been allowed access to a lawyer when being questioned by police when he was not under arrest. He had been stopped driving home from work and his car inspected by the police after reports of . .
CitedCadder v Her Majesty’s Advocate SC 26-Oct-2010
Statement without lawyer access was inadmissible
The accused complained that he had been convicted for assault and breach of the peace on the basis of a statement made by him during an interview with the police where, under the 1995 Act, he had been denied access to a lawyer.
Held: The . .
CitedAmbrose v Harris, Procurator Fiscal, Oban, etc SC 6-Oct-2011
(Scotland) The appellant had variously been convicted in reliance on evidence gathered at different stages before arrest, but in each case without being informed of any right to see a solicitor. The court was asked, as a devolution issue, at what . .
CitedLeggate v HM Advocate 1988
The judge has a wide discretion to refuse any application by the advocate depute to cross-examine the appellant on his previous convictions. . .
CitedPorter and Weeks v Magill HL 13-Dec-2001
Councillors Liable for Unlawful Purposes Use
The defendant local councillors were accused of having sold rather than let council houses in order to encourage an electorate which would be more likely to be supportive of their political party. They had been advised that the policy would be . .
CitedLawal v Northern Spirit Limited HL 19-Jun-2003
Counsel appearing at the tribunal had previously sat as a judge with a tribunal member. The opposing party asserted bias in the tribunal.
Held: The test in Gough should be restated in part so that the court must first ascertain all the . .
CitedSalduz v Turkey ECHR 26-Apr-2007
The applicant complained that he had been arrested and detained by anti-terrorist police. At his trial evidence of his statement was challenged on the basis that it had been extracted from him under duress and that he had not had access to a lawyer. . .
CitedRegina v Abdroikof, Regina v Green; Regina v Williamson HL 17-Oct-2007
The House was asked whether a jury in criminal trials containing variously a Crown Prosecution Service solicitor, or a police officer would have the appearance of bias. In Abdroikof, the presence of the police officer on the jury was discovered only . .
CitedHelow v Secretary of State for the Home Department and Another HL 22-Oct-2008
The appellant, a Palestinian, challenged the involvement of Lady Cosgrove as a judge in her case, saying that Lady Cosgrove’s involvement as a jew in pro-Jewish lobby organisations meant that there was an appearance of bias. The applicant had sought . .
CitedYankov And Manchev v Bulgaria ECHR 22-Oct-2009
. .
CitedSimeon Szypusz v The United Kingdom ECHR 21-Sep-2010
The applicant, relied on Article 6-1 of the Convention, to allege that he had not had a fair trial as there were insufficient guarantees to exclude legitimate doubt regarding the independence and impartiality of the tribunal which tried him on . .
CitedPresident of the Republic of South Africa v South African Rugby Football Union 4-Jun-1999
Constitutional Court of South Africa – The court considered an allegation of bias in the judge, it being said that they should have recused themselves: ‘The question is whether a reasonable, objective and informed person would on the correct facts . .
CitedLocabail (UK) Ltd, Regina v Bayfield Properties Ltd CA 17-Nov-1999
Adverse Comments by Judge Need not be Show of Bias
In five cases, leave to appeal was sought on the basis that a party had been refused disqualification of judges on grounds of bias. The court considered the circumstances under which a fear of bias in a court may prove to be well founded: ‘The mere . .
CitedJSC BTA Bank v Ablyazov (Recusal) CA 28-Nov-2012
The question was whether a judge had been right not to recuse himself as the nominated judge of trial, in circumstances where he had had to hear, prior to trial, an application to commit one of the parties for contempt of court and had found a . .

Cited by:
CitedKapri v The Lord Advocate (Representing The Government of The Republic of Albania) SC 10-Jul-2013
The Court was asked whether it would be compatible with the appellant’s Convention rights within the meaning of the Human Rights Act 1998 for the appellant, who is an Albanian national, to be extradited to Albania. On 7 April 2001, while he was in . .

Lists of cited by and citing cases may be incomplete.

Scotland, Crime, Human Rights

Updated: 14 November 2021; Ref: scu.510829