Yiacoub & Anor v The Queen

Factual and Procedural Background

The Sovereign Base Areas of Cyprus operate under the Courts (Constitution and Jurisdiction) Ordinance 2007, which creates two tiers of courts for criminal matters: the Resident Judge’s Court (“RJC”) at first instance and the Senior Judges’ Court (“SJC”) on appeal. Trials are conducted without a jury.

In the case at hand, three Senior Judges—including the Presiding Judge of the SJC—were temporarily deployed to sit as the RJC under section 6(3) of the Ordinance. One accused pleaded guilty; three others were tried. Two of those defendants, after being convicted on some charges, exercised their right of appeal to the SJC.

Because three judges had tried the case, a fresh three-judge panel was required for the appeal. Acting under section 4(3) of the Ordinance, the Presiding Judge (who had sat on the trial) selected another Senior Judge to chair the appellate panel. That panel dismissed the appeal. The appellants then sought further review, asserting that the Presiding Judge’s administrative involvement created an appearance of bias.

Legal Issues Presented

1. Whether the Presiding Judge’s role in constituting the appellate panel—after having sat on the trial court—created a real possibility of bias in violation of the common-law requirement that justice must be seen to be done.
2. If such an appearance of bias existed, what remedy was appropriate: quashing the convictions or only the appellate decision?

Arguments of the Parties

Appellants' Arguments

• The impartiality requirement is objective; a fair-minded and informed observer would perceive a real possibility of bias when a trial judge influences the composition of the appellate court reviewing that very trial.
• Because the appearance of justice was compromised, their convictions could not be considered safe.

Prosecution's (Respondent's) Arguments

• As submitted by Attorney Guthrie, the appellate panel consisted of independent, full-time professional judges with security of tenure comparable to Circuit Judges in England and Wales; this would reassure the objective observer of their impartiality.
• Comparable cases—such as inquiries or tribunals appointed by ministers—demonstrate that the presence of judicial members ordinarily dispels any concern over independence.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by reaffirming the Porter v Magill objective test. It accepted that the appellate judges themselves were independent; however, the procedural question centered on the Presiding Judge’s dual role:

• As a member of the trial court, the Presiding Judge was subject to potential appellate scrutiny.
• Under section 4(3) he also controlled the “disposition and distribution of duties” for the SJC, including selection of the appellate panel.

While no actual bias or influence was alleged, the court held that a reasonable observer would find an appearance of partiality when a judge involved in the original decision selected those who would review it. This scenario is materially different from ministerial appointments to independent inquiries because it entails a direct link between the decision-maker and the reviewing body.

The court noted that the problem was avoidable. The Presiding Judge could have delegated panel-selection to the next most senior available judge or, if necessary, requested appointments of acting judges under section 9.

Holding and Implications

Holding: The appellate process failed the common-law test of objective fairness; the decision of the SJC dismissing the appeal is quashed. The convictions themselves remain unaffected, but the appeal must be reheard before a panel comprising judges who did not participate in either the trial or the first appeal.

Implications: The ruling underscores that administrative court functions must be arranged so as to avoid any appearance of bias, even where no actual partiality exists. Courts within the Sovereign Base Areas—and by extension other small jurisdictions—should adopt procedures ensuring that judges involved at first instance take no part, direct or indirect, in constituting appellate panels reviewing their judgments. No new legal principle was created; the decision applies established impartiality standards to the court’s internal listing practices.