New Judgment: O’Neill (No 2) v Her Majesty’s Advocate; Lauchlan v Her Majesty’s Advocate  UKSC 36
13 Thursday Jun 2013
The appellants were questioned by the police in 1998 in relation to a murder, but due to a lack of evidence at the time proceedings were not commenced against them. They were eventually charged in 2005 and found guilty of the murder in 2010. Before their 2010 trial the appellants were found guilty of a series of sexual offences relating to children, and after the verdicts the trial judge referred to their records and commented that they were “evil, determined, manipulative and predatory paedophiles of the worst sort”. They were later tried by the same judge on the murder charge.
The issues for the Supreme Court were whether the appellants were ‘charged’ for the purposes of their right to a trial within a reasonable time in terms of ECHR, art 6 (the appellants argued that the clock started to run when they were first questioned in 1998); and whether the comments and conduct of the trial judge amounted to a breach of their right to a fair trial by an impartial tribunal under art 6(1).
The Supreme Court held that the date when the reasonable time began for the purposes of the appellants’ rights under art 6 was 5 April 2005; and that the trial judge’s conduct was not incompatible with the appellants’ right to a trial before an independent and impartial tribunal.
For the purposes of art 6 the rationale is that the person should not remain too long in a state of uncertainly; time runs from the date which the suspect’s position is substantially affected. In the UK this could be some time after a suspect is first questioned. Their preliminary questioning did not amount to an official notification that they were likely to be prosecuted.
On the issue of bias, the test in Porter v Magill  UKHL 67 states that a judge would have to express outspoken opinions about the appellants’ character that were entirely gratuitous and plainly outside the scope of the proper performance of their duties for a fair minded and informed observer to doubt the judge’s ability to perform their duties with an objective judicial mind.