Hoekstra & Ors v Her Majesty's Advocate High Court of Justiciary (Scotland) [2000] UKHL D2 (26 October 2000)

DP Nos. 2, 3, 4, 5, 8 and 9 of 2000

(1) Lieuwe Hoekstra
(2) Jan Van Rijs
(3) Ronny Van Rijs and
(4) Hendrick Van Rijs	Petitioners
	v.
Her Majesty’s Advocate	Respondent

	FROM

	THE HIGH COURT OF JUSTICIARY
	---------------

	REASONS FOR DECISION OF THE LORDS OF THE
THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL,
UPON A PETITION FOR SPECIAL LEAVE TO APPEAL,
of the 2nd October 2000, Delivered the 26th October 2000
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	Present at the hearing:-
			Lord Slynn of Hadley
			Lord Hope of Craighead
			Lord Clyde

		  [Judgment of the Board delivered by Lord Hope of Craighead]
	------------------

	These are six petitions for special leave to appeal from the High Court of Justiciary under paragraph 13 of Schedule 6 to the Scotland Act 1998.  They were put out for an oral hearing by the Board on 2nd October 2000.  At the conclusion of the oral hearing their Lordships announced that, for reasons to be given later, they had decided to dismiss the petitions.  The following are the reasons which their Lordships now give for their decision.

	As the circumstances in which these applications have come before the Board are somewhat complicated their Lordships must first provide the following summary of the background.  

	The petitioners were found guilty on 13th March 1997 in the High Court at Dunfermline of a contravention of section 170 of the Customs and Excise Management Act 1979.  Lieuwe Hoekstra and Jan Van Rijs were sentenced to fourteen years’ imprisonment.  Ronny and Hendrik Van Rijs were sentenced to ten years’ imprisonment.  All the sentences were backdated to 29th July 1996, which was the date when the petitioners were arrested and taken into custody.  They appealed against their conviction, and arrangements were made for their appeals to be heard by the Appeal Court.  As it was anticipated that they would be lengthy it was decided that their appeals would be heard in two stages.  The hearing of the first stage began on 23rd November 1999.  It lasted until 3rd December 1999, when the court made avizandum.  Among the issues which the Appeal Court had to consider as part of the first stage were two devolution issues.  These were the subject of devolution issue minutes which the appellants had lodged shortly before the hearing was due to commence.  One of these related to the prior involvement in the case of counsel who had become an advocate depute.  The other alleged that there had been a failure to disclose certain information by the Lord Advocate.

	On 28th January 2000 the Appeal Court (Lords McCluskey, Kirkwood and Hamilton) pronounced interlocutors in which they dismissed the devolution issue minutes relating to the involvement in the case of the advocate depute, refused the grounds of appeal which had been argued on the petitioners’ behalf at the first stage and directed that the hearing of the remaining grounds of appeal should proceed on 6th March 2000.  The effect of these interlocutors was that both of the devolution issues which had been raised by the petitioners at that stage (“the advocate depute issue” and “the disclosure issue”) were dismissed.  On 31st January 2000 the same court refused the petitioners leave to appeal against its decision to the Judicial Committee.  The petitioners then applied to the Judicial Committee for special leave to appeal.  Their applications are comprised in the first four of the six petitions which are now before the Board.  

	On 6th February 2000 an article by Lord McCluskey was published in the Scotland on Sunday newspaper which in due course gave rise to a further issue in the case which the petitioners raised as a third devolution issue.  Lord McCluskey had retired from his office as a Senator of the College of Justice on 8th January 2000.  His retirement from that office was the occasion for the publication of the article.  This was the first of three articles written by him about the Scottish legal system and the Scottish judiciary. On his retirement Lord McCluskey was appointed to sit as a retired judge under section 22 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985.  He was sitting in that capacity when the interlocutors of 28th January 2000 were pronounced.  At the outset of the hearing of the second stage of the appeal on 6th March 2000 the petitioners submitted that, in view of the tone and content of various comments about the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd 8969) which were contained in his article, Lord McCluskey could not be regarded as impartial in relation to issues of human rights. They submitted that both he and the other judges of the court of which he was a member were disqualified from hearing any further part of the appeal.  

	When this argument was presented to the court presided over by Lord McCluskey (“the first Appeal Court”) the judges of that court were of the opinion that the issue of declinature ought to be considered by a differently constituted bench: Hoekstra v. H.M. Advocate (No. 1) 2000 S.L.T. 602.  On 9th March 2000 a differently constituted Appeal Court comprising the Lord Justice General (Lord Rodger), Lord Sutherland and Lady Cosgrove (“the second Appeal Court”) was convened to deal with this issue.  At the end of this hearing the second Appeal Court pronounced an interlocutor setting aside the first Appeal Court’s interlocutors of 28th January 2000 and ordered that any further proceedings in the appeal be heard by a differently constituted bench: Hoekstra v. H.M. Advocate (No.2) 2000 S.L.T. 605.  

	At a procedural hearing on 23rd March 2000 which was held to consider how the appeals should proceed the petitioners lodged minutes giving notice of their intention to raise a further devolution issue relating to the decision of the second Appeal Court on 9th March 2000 to set the first Appeal Court’s interlocutors of 28th January 2000 aside.   Their contention was that the setting aside of the previous interlocutors amounted to an attempt by that court to amend section 124(2) of the Criminal Procedure (Scotland) Act 1995 which confers finality on all interlocutors of the High Court of Justiciary.  It was thus a purported exercise of functions which under the Scotland Act 1998 are functions of the Scottish Ministers, the First Minister or the Lord Advocate.  On 2nd June 2000 an Appeal Court comprising the Lord Justice General and Lords Phillip and Carloway refused the petitioners’ motion to refer the matter to the Judicial Committee on the ground that the minutes did not raise a devolution issue, and it refused leave to appeal.  Counsel for the petitioners invited the Advocate Depute on behalf of the Lord Advocate to require the court to refer the matter to the Judicial Committee under paragraph 33 of Schedule 6 of the Scotland Act 1998, but she declined to do so.  This issue (“the amendment issue”) is the subject of the remaining two petitions for special leave.  One of these is at the instance of Hoekstra and Jan Van Rijs.  The other is at the instance of Ronny and Hendrik Van Rijs.  

	Paragraphs 13 and 33 of Schedule 6 to the Scotland Act 1998 provide:-
“13. An appeal against a determination of a devolution issue by –

(a)		a court of two or more judges of the High Court of Justiciary (whether in the ordinary course of proceedings or on a reference under paragraph 9), or

(b)		a court of three or more judges of the Court of Session from which there is no appeal to the House of Lords,

shall lie to the Judicial Committee, but only with leave of the court concerned or, failing such leave, with special leave of the Judicial Committee.

33.	  The Lord Advocate, the Advocate General, the Attorney General or the Attorney General for Northern Ireland may require any court or tribunal to refer to the Judicial Committee any devolution issue which has arisen in proceedings before it to which he is a party.”
	At the outset of the oral hearing Mr. Gebbie for Hoekstra, whose submissions were adopted by counsel for the other petitioners, accepted that the effect of the second Appeal Court’s interlocutor of 9th March 2000 was that none of the first four petitions raised a live question for consideration by their Lordships’ Board.  This was because the effect of that interlocutor was to set aside the first Appeal Court’s interlocutors of 28th January 2000 which dealt with the advocate depute issue and the disclosure issue with which alone these four petitions were concerned.  These issues have not yet been determined by the High Court of Justiciary, as they have been remitted by the second Appeal Court for further consideration by a differently constituted court.  There can be no question as to whether or not leave or special leave should be given to appeal to the Judicial Committee until these devolution issues have been determined by that court.  Their Lordships express no view as to whether or not it would be appropriate for leave to be granted for an appeal to the Judicial Committee in respect of these issues.

	The question which is raised by the fifth and sixth petitions is whether the amendment issue, which is the only issue to which they relate, is a devolution issue within the meaning of paragraph 1 of Schedule 6 to the Scotland Act 1998.  That paragraph lists six issues which fall within the meaning of that expression, of which the ones to which the petitioners addressed their argument are these:-
“(b)  a question whether any function (being a function which any person has purported, or is proposing, to exercise) is a function of the Scottish Ministers, the First Minister or the Lord Advocate.

(e)  a question whether a failure to act by a member of the Scottish Executive is incompatible with any of the Convention rights or with Community law.”

	Mr. Gebbie said that the Judicial Committee was a constitutional court and that the amendment issue was a constitutional issue which ought to be considered by their Lordships’ Board.  Mr. McLaughlin for Jan Van Rijs sought to develop a similar argument, and these submissions were adopted by counsel for the other petitioners.  But it is plain that the Judicial Committee can only act within the limits which have been set for it by the statute.  An appeal can only be brought, or a reference made, to the Judicial Committee under Schedule 6 to the Scotland Act 1998 if it raises a devolution issue.  Some of the issues which fall within the description of devolution issues in paragraph 1 of the Schedule may well raise constitutional issues.  But it does not follow that all issues which are of a constitutional nature are devolution issues within the meaning which is given to the expression by that paragraph.  Furthermore the Judicial Committee has not been given a general power by the statute to review interlocutors of the High Court of Justiciary.   Except in regard to devolution issues as defined by paragraph 1, the position remains that every interlocutor of the High Court of Justiciary is final and conclusive and not subject to review by any court whatsoever: see Criminal Procedure (Scotland) Act 1995, section 124(2).   

	The argument which the petitioners wish to raise as a devolution issue in terms of paragraph 1(b) of Schedule 6 takes as its starting point the provisions of section 124(2) to which their Lordships have just referred.  The proposition which they seek to advance, in terms of paragraphs 2 vii and viii of their devolution issue minutes, is that the interlocutor of the second Appeal Court of 9th March 2000 which set aside the interlocutors of the first Appeal Court of 28th January 2000 amounted to an attempted amendment of section 124(2).  Mr. Gebbie said that the question whether that subsection should be amended was a matter of policy, and that the formulation of matters of policy was a function of the Ministers of the Scottish Executive not of the court.

	The basis on which the second Appeal Court was proceeding when it decided to set aside the first Appeal Court’s interlocutors was explained in paragraph 13 of the opinion of the court which was delivered by the Lord Justice General: Hoekstra v. H.M. Advocate, (No. 2) 2000 S.L.T. 605, 609H-K.  Section 103(2) of the Criminal Procedure (Scotland) Act 1995 provides that a quorum of the High Court of Justiciary for the purpose of hearing and determining any appeal under Part VIII of the Act shall be three.  If Lord McCluskey could not properly be regarded as impartial, it followed that he ought not to have sat.  So the proceedings should be treated as if only two, rather than three, impartial judges were sitting to hear and determine the appeal.  The result was that there was no properly constituted Appeal Court, and the appropriate course was to set aside the interlocutors of 28th January 2000 in the exercise of the nobile officium.  

	There is no hint in this process of reasoning of any attempt to amend section 124(2) of the 1995 Act, nor is there any suggestion that that subsection is in need of amendment.  In reaching its decision the court had to construe the statute, and it had to consider whether what it proposed to do was within its powers in the exercise of the nobile officium.  But these are functions which it performs day and daily in the course of its work: see Perrie, Petitioner 1992 S.L.T. 655, Beattie v. H.M. Advocate 1995 J.C. 33 and Express Newspapers Plc, Petitioners 1999 J.C. 176 for some of the more important examples. There are many more that could be cited.  They are judicial functions which belong to the High Court of Justiciary as the supreme court of criminal jurisdiction in Scotland.  The limits within which its powers may be exercised are for determination by that court.  They have nothing to do with the functions of the Scottish Ministers, the First Minister or the Lord Advocate.  

	The argument that what the second Appeal Court did raises a devolution issue within the meaning of paragraph 1(b) of the Schedule is therefore entirely without substance.  The argument that the refusal of the Advocate Depute to require the court to refer this issue to the Judicial Committee under paragraph 33 of the Schedule raises a devolution issue within the meaning of paragraph 1(e) is equally unsound, as the power which that paragraph gives to the Lord Advocate relates only to devolution issues.  If there is no devolution issue, the Lord Advocate has no power under that paragraph to require the court or tribunal to make a reference.  For these reasons their Lordships were in no doubt that the issues which the petitioners wish to raise are not issues which can be determined by the Judicial Committee in the exercise of the jurisdiction which has been given to it by paragraph 13 of the Schedule, and they dismissed the petitions.