Case Comment: O’Neill No 2 v Her Majesty’s Advocate (Scotland)  UKSC 36
07 Monday Oct 2013
The case concerned the scope of the right to a fair trial under ECHR, art 6, specifically the right to a trial within a ‘reasonable time’ under art 6(1) and the right to an independent and impartial tribunal, also under art 6(1).
The two appellants, Lauchlan and O’Neill, were charged with the murder of Allison McGarrigle on the 5 April 2005. Allison McGarrigle disappeared in 1997. Mrs McGarrigle had a son named Robert, who at the time of her disappearance was subject to a residential supervision requirement. It required him to live with his father during the week, but he was permitted to visit his mother on Saturdays. On Saturday 14 June 1997 Robert did not return to his father’s address after visiting his mother. Instead he and his mother went to Largs, where they met the appellants and went to live with them at a property in Largs. On or about 20 June 1997 a drinking session took place where the appellants, Mrs McGarrigle and Robert were present. Mrs McGarrigle subsequently disappeared. On 16 February 1998 she was reported to the police as a missing person and by September 1998 a murder enquiry was being conducted into her disappearance. On 17 June 1998 the appellants were convicted of a number of sexual offences, including offences against Robert McGarrigle, and in August 1998 were sentenced to 6 years and 8 years imprisonment respectively. On 17 September 1998 the appellants were released into the custody of the police for questioning on the basis that they were suspected of having committed a conspiracy to murder. Both appellants were asked if they had murdered Mrs McGarrigle. The interviews were unproductive and the appellants were not arrested or charged as a result of them, but instead returned to prison to serve the remainder of their sentences. They were released on license in 2003 and 2003.
On 22 April 2004 the appellants were arrested in Spain in connection with the apparent abduction of a fourteen year old boy. On 5 April 2005 they were charged with the murder of Allison McGarrigle and with concealing and disposing of her body in an attempt to pervert the course of justice. The appellants were tried in 2010 in two trials, one for a variety of sexual offences and one for the murder of Mrs. McGarrigle. Both trials were heard before the same judge, Lord Pentland, but with different juries. The trial for the sexual offences charges took place between 26 April and 12 May 2010. The judge reserved sentencing for the sexual offences until after the trial for murder was complete. At the time of informing the appellants of this, the judge referred to their records and made comments to them that they were ‘evil, determined, manipulative and predatory paedophiles of the worst sort’. The murder trial commenced on 17 May 2010 and they were convicted on 10 June 2010.
The case focused on two main contentions by the appellants. They argued that for the purposes of a trial taking place within a ‘reasonable time’ as per art 6 (1) the starting point should be the 17 September 1998. The appellants also argueed that comments of Lord Pentland at the end of the sexual offences trial gave rise to concerns as to the right to a fair trial by an impartial tribunal also under art 6 (1).
The Decision of the Supreme Court
The date on which the suspects were charged
The word ‘charge’ is referenced twice within art 6. Article 6(1) provides that in the determination of any “criminal charge against him” a person has the right to a fair trial within a reasonable time and art 6(3)(c) provides a right to legal assistance for anyone “charged with a criminal offence”. Lord Hope, giving the judgment, held that while both rights required that a precise point be identified at which the suspect should be considered ‘charged’, the rights protected under each sub-section are different. The rationale of art 6(3)(c) is to ensure that the trail is fair and that the suspect has legal advice from the earliest possible point:
“The first interrogation of a suspect may take place, and often does, before the person is officially alerted to the likelihood of criminal proceedings against him. To wait until the stage is reached when there is sufficient evidence to bring a charge before the suspect has the right of access to a lawyer could seriously prejudice his right to a fair trial. So the focus, for the purposes of this part of article 6, is on the state of affairs when the suspect is first interrogated.” 
In contrast, the focus of the reasonable time guarantee in article 6(1) is:
“on the running of time, not on what is needed to preserve the right to a fair trial. Its rationale is that a person charged should not remain too long in a state of uncertainty about his fate”. 
Therefore, in some cases the same date may be equally appropriate for each of the purposes of art 6(3) and art 6(1), but they are separate guarantees, and the relevant date for each of them will not necessarily be the same. Therefore, with regard to the reasonable time guarantee under art 6 (1) the appellants would have been ‘charged’ only if they had been officially notified that they would be prosecuted, or officially alerted to the likelihood of criminal proceedings against them. The Court found that:
“They were both asked directly whether they had killed Mrs McGarrigle. But, in the context in which these questions were being put, it cannot be said that that this amounted to an official notification that they were likely to be prosecuted. All the indications during the prolonged questioning to which they were subjected were that the police were not in a position to report the proceedings with a view to prosecution without having obtained more evidence.”
Therefore the date when the reasonable time began was 5 April 2005, and not 17 September 1998 when the appellants were detained and interviewed.
The question of bias
With regard to the issue of an independent and impartial tribunal, the Court turned to the test in Porter v Magill  UKHL 67:
“The question is whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”
This test has reconciled the common law test of bias and the requirement under art 6 of an independent and impartial tribunal. Applying this test the Court found that in making his remarks Lord Pentland was addressing the appellants in the performance of his judicial function, and the fair-minded and informed observer would appreciate that he was a professional judge who had taken the judicial oath and had years of relevant training and experience, and would hear and understand the context in which the remarks were made. It would only be if the judge expressed outspoken opinions about the appellants’ character that were entirely gratuitous and plainly outside the scope of the proper performance of his duties in conducting the trial, that the fair minded observer would doubt the professional judge’s ability to perform those duties with an objective judicial mind.
In the context of the appellants’ case there was no evidence that the judge has acted improperly. The judge had been asked to defer sentencing until after the murder trial but the appellants were entitled to some indication as to what they might expect. The judge’s comments on the appellants’ character were directly relevant to that issue. The fair minded observer would also understand that, if the judge had been passing sentence on the appellants, the remarks he made would have been entirely appropriate as background to the sentences which he would have been obliged to pass. The Court placed particular weight on the fact that the appellants raised no objection to Lord Pentland presiding over both the sexual offences and murder trial during the proceedings. Accordingly:
“The fair-minded and informed observer would not have overlooked this fact. It might well have seemed to him to be odd, if there was any real basis for an objection, that those with the most immediate interest did not take the opportunity of raising the point at that stage.”
The Court therefore found no basis that the judge was apparently biased.
The findings with regard to bias were to be expected. Of course, any reference to the fictional ‘fair minded observer’ is open the same pitfalls as references to the infamous ‘reasonable man’, however given the context it seems unlikely that the Court would have made a finding of bias. The situation of two trials in a short period of time presided over by the same judge was unusual, but the Court was clearly heavily influenced by the lack of complaint from the appellants at the time of the trials.
The findings regarding the expectation of a trial in a ‘reasonable time’ are more interesting. It is worth placing the judgment in O’Neill within the wider context of the debate over the content of fair trial rights. The scope of art 6 rights have proved a problematic issue for the European Court of Human Rights in its jurisprudence, and a considerable body of case law has been required to clarify and define the terms ‘charge’ and ‘criminal’ under art 6 (see Engel v. Netherlands (1979) 1 EHRR 647; Ozturk v. Germany (1984) 6 EHRR 40; Benham v. United Kingdom (1996) 22 EHRR 293; Clingham v. Kensington and Chelsea LBC; R (McCann) v. Manchester Crown Court  1 AC 787). In many ways the approach of Lord Hope in O’Neill provides an interesting contrast to the approach of the ECtHR. The ECtHR has tended to adopt the ‘autonomous meanings’ approach with regard to art 6, assuming that certain terms within the Convention have an independent empirical meaning. A focus of rigidly defined meanings for Convention terms such as ‘criminal’ has been problematic and led to some controversial case law (for example Ozturk v Germany (1984) 6 EHRR 409). In contrast to this approach, rather than focusing on finding an autonomous definition for the concept of ‘charge’, the Supreme Court instead focused on the protections flowing from the finding that an individual had been ‘charged’ and the purpose of such protections. The result is that ‘charge’ can have a different meaning in different contexts, but the focus is on the overall purpose of the protections under art 6 rather than essentialist definitions.
O’Neill also illustrates the complex interaction between the various parts of art 6. The very concept of what makes a trial ‘fair’ in accordance with art 6 remains a subject of both academic and jurisprudential debate. Is ‘fairness’ a holistic concept, or does art 6 simply provide a ‘checklist’ of fair trial rights? The judgment in O’Neill did not address such wide-ranging questions of fairness, but by suggesting that the reasonable time requirement has little to do with questions of fairness, and instead only serves to preserve peace of mind on the part of the defendant suggests that, with regard to art. 6, fairness is not everything. Overall, the decision in O’Neill largely affirms existing case law but does provide some further clarification on the complex nature of art 6 rights.