George Mackie Thompson Bryceland or Nelson v. Her Majesty's Advocate [2006] HCJAC 38

On 12 July 2002 a trial had commenced in the High Court of Justiciary at Glasgow on an indictment brought against the petitioner (who was on remand), and his 2 co-accused (who were on bail). It was presided over by a particular judge (hereinafter referred to as "the judge in question"). The diet called on 17 July 2002, when one of the petitioner's co-accused did not appear. The following day after the co-accused could not be located the court granted a warrant to apprehend the co-accused. The court also, on the motion of the Advocate depute deserted the trial diet pro loco et tempore and discharged the jury. The court also, on the motion of the Advocate depute extended the 110 day time limit in the case of the petitioner so that it expired on 17 September 2002, in terms of section 65(4) of the Criminal Procedure (Scotland) Act 1995. That motion had been opposed, the petitioner had sought bail until a new trial could take place. The Crown had argued that the petitioner had been complicit or involved in the non-attendance of the co-accused at that trial and had known all along that he was not going to return to the court after 12 July 2002 after tape recordings of the petitioner's phone calls whilst in custody were played to the judge in question. The petitioner here contended that the judge in question formed a less than favourable impression in relation to the truthfulness or otherwise of the petitioner and that the decision he took meant that he rejected the petitioner's version of events and so found him to be a liar on an important matter. The petitioner's conviction was the subject of an appeal on 6 January 2004 the bench consisted of two judges who had had no previous connection with the case, and the judge in question. The petitioner averred that the lack of impartiality and bias of the judge in question towards the petitioner had the effect of disabling him from sitting on the appeal bench. The petitioner here claimed that only two qualified judges, in the sense of impartial judges, heard the petitioner' s appeal and any purported interlocutor relating to them were said to be invalid. The petitioner referred to section 103(2) of the CP(S) Act 1995 and to Hoekstra v H.M. Advocate (No. 2) 2002 S.C.C.R. 367. The petitioner claimed to have suffered a wrong in that his right to challenge his conviction in the trial held in Edinburgh was taken from him and he contended that his right to have his appeal heard and determined according to law has been aborted and no other remedy for that wrong was available to the petitioner other than to follow this course. Here the Court looked at the judge in question's ability to impartially deal with the case from both a subjective and objective standpoint.