O'Neill v Her Majesty's Advocate No 2 (Scotland)

Factual and Procedural Background

Two co-accused, hereafter “Appellant 1” and “Appellant 2,” were tried in 2010 before Judge Pentland on separated charges. The first trial concerned sexual offences against children and resulted in guilty verdicts. After that verdict the prosecution produced schedules of the appellants’ prior convictions and Judge Pentland made critical remarks about their character while the jury was still present. A second trial, before a new jury but the same judge, followed immediately and resulted in both appellants being convicted of murdering a woman and of attempting to defeat the ends of justice by disposing of her body at sea. Life sentences (with punishment parts of 26 and 30 years) and concurrent eight-year sentences were imposed.

Both appellants lodged statutory appeals. They were granted leave to challenge sentence, and Appellant 1 obtained restricted leave to appeal conviction. The remaining conviction grounds were refused as “unarguable.” Subsequently, each sought leave to appeal to the Supreme Court under the Scotland Act 1998. The Appeal Court granted leave on two Convention grounds: (1) undue delay contrary to Article 6(1) ECHR, and (2) (for Appellant 2 only) apparent judicial bias. Legislative changes introduced by the Scotland Act 2012 converted those “devolution issues” into “compatibility issues” to be decided under ss 288AA & 288ZA of the Criminal Procedure (Scotland) Act 1995. The Supreme Court (Judge Hope giving the opinion) heard the consolidated appeal in April 2013.

Legal Issues Presented

1. Whether, for Article 6(1) purposes, the “reasonable time” clock began on 17 September 1998 (the date of police detention and interview under statute) or on 5 April 2005 (the date of formal charging on petition), and thus whether there was undue delay.
2. Whether Judge Pentland’s comments following the first trial created the appearance of bias such that proceeding with the murder trial infringed the appellants’ right to an impartial tribunal under Article 6(1), and if so whether the Lord Advocate acted incompatibly in continuing the prosecution.

Arguments of the Parties

Appellants’ Arguments

• The appellants were “charged” for Convention purposes upon their detention and caution on 17 September 1998; the period until conviction therefore exceeded a reasonable time.
• Judge Pentland’s statement that they were “evil, determined, manipulative and predatory paedophiles of the worst sort,” delivered in the jury’s presence, raised a legitimate apprehension of bias, infecting the subsequent murder trial.

Crown’s Arguments

• The reasonable-time period starts only when an accused is officially alerted to likely prosecution; that occurred on 5 April 2005 when the petition was served.
• The judge’s remarks were made in the ordinary course of sentencing considerations and risk-assessment procedure; a fair-minded observer would not infer bias. No objection or recusal motion was raised at the outset of the murder trial, underscoring the absence of perceived partiality.

Table of Precedents Cited

Court's Reasoning and Analysis

1. Undue Delay

• The Court distinguished between two discrete Article 6 protections: (a) the right to a fair trial (engaging Article 6(3)(c) and Salduz principles) and (b) the reasonable-time guarantee.
• While Article 6(3)(c) is engaged as soon as police interrogation might prejudice fairness, the reasonable-time clock runs only once an accused is “officially alerted” to prosecution (Eckle; Attorney General’s Reference No 2).
• On 17 September 1998 the appellants were merely suspects; police lacked sufficient evidence and expressly refrained from charging them.
• They were first officially notified of impending prosecution on 5 April 2005 when they appeared on petition. Therefore, reasonable-time began then.

2. Apparent Bias

• Applied the Porter v Magill “fair-minded and informed observer” test, noting harmony with Strasbourg jurisprudence.
• Judge Pentland’s comments arose while performing a judicial duty—explaining statutory notification requirements and signalling a pending risk-assessment motion.
• The remarks, although strong, were germane to sentencing considerations and were temporally confined; the judge reserved further comment until after the second trial.
• No objection or recusal motion was advanced by counsel at the outset of the murder trial, a fact the hypothetical observer would notice.
• Comparisons with illness-related adjournment decisions during the murder trial showed even-handed case management, undermining any inference of hostility.
• Accordingly, no real possibility of bias existed; the Lord Advocate’s decision to proceed was compatible with Article 6.

Holding and Implications

HELD: (1) The reasonable-time period under Article 6(1) commenced on 5 April 2005, not on 17 September 1998; (2) Judge Pentland’s conduct did not create an appearance of bias, and the prosecution’s continuation before him was compatible with Article 6(1). The Supreme Court therefore dismissed the compatibility challenges and remitted the case to the High Court of Justiciary.

Implications: The judgment clarifies that, in Scottish criminal procedure, the reasonable-time guarantee ordinarily begins with formal charging/first appearance rather than initial detention and interview. It also confirms that robust judicial comments made in the course of sentencing or related statutory duties will not, without more, ground an apparent-bias claim. No new precedent was created, but authoritative guidance was provided on the interaction between Articles 6(1) and 6(3)(c) and on the scope of the fair-minded observer test.