Pubdate: Fri, 10 Mar 2000
Source: Scotsman (UK)
Copyright: The Scotsman Publications Ltd 2000
Contact:  http://www.scotsman.com/
Forum: http://www.scotsman.com/
Author: John Robertson, Law Correspondent

UKP250,000 BILL AS COURT DECIDES APPEAL CASE SHOULD BEGIN AFRESH

A NEWSPAPER article by the outspoken retired judge, Lord McCluskey, has
landed the taxpayer with a bill estimated at UKP250,000 after a ruling
yesterday that a major appeal case he had heard partially should start again.

In another blow to the Scottish legal system from the European Convention
on Human Rights, four Dutch nationals convicted of drug-smuggling succeeded
in having Lord McCluskey disqualified from continuing to sit in their appeals.

The men's lawyers had argued that Lord McCluskey's impartiality was in
doubt because of his "overwhelmingly negative" views on the ECHR, described
as a "field day for crackpots" in the article in Scotland on Sunday.

It was published last month, within days of a 79-page judgment by Lord
McCluskey and Lords Kirkwood and Hamilton, in which they had rejected
ECHR-based grounds of appeal by the Dutchmen.

The smugglers had claimed their rights to privacy were breached when a
tracking device was hidden on their boat.

The same judges were to have heard further grounds of appeal, but the
defence lawyers fought to have all three removed because Lord McCluskey's
colleagues had been "infected" by his opinions.

Yesterday, Scotland's senior judge, Lord Rodger, the Lord Justice-General,
sitting with Lord Sutherland and Lady Cosgrove at the Court of Criminal
Appeal in Edinburgh, said they had been persuaded that the case should go
before a differently constituted bench.

Lord Rodger added: "We are also satisfied that the [judgment] of 28 January
must be set aside and a fresh hearing held to consider the grounds of
appeal dealt with in that decision."

The men have legal aid for their appeals. Each is represented by a senior
Dutch advocate, a junior Scottish advocate and Scottish solicitors.

The original hearing, which has now effectively been wiped out, lasted ten
days. In 1997, Lieuwe Hoekstra, 60, and Jan van Rijs, 55, were given
14-year sentences after being convicted of major roles in smuggling
UKP10million of cannabis into Scotland.

Ronny van Rijs, 32, a son of Jan, and Hendrik van Rijs, 27, a nephew of
Jan, received ten-year terms.

The prosecution's case was that all four had been aboard a boat, the
Isolda, which carried the cannabis from Spain to a rendezvous off the
Caithness coast with another boat, the Ocean Jubilee.

After the drugs had been transferred, customs officers, who had been
tracking the gang, moved in and boarded the Ocean Jubilee. One of the
officers, Alastair Soutar, died in the operation.

In his article, Lord McCluskey said he had warned in the Reith lectures of
1986 that the Canadian charter on human rights, copied from the European
convention, would provide "a field day for crackpots, a pain in the neck
for judges and a goldmine for lawyers."

At yesterday's hearing, Jan Sjocrona, one of the defence advocates, said:
"Lord McCluskey's hostility to embracing the convention has shocked the
appellants and the lawyers in this case.

"We have conducted arguments based on the ECHR and there are many more to
come. The way those are dealt with in the [January] judgment must have been
influenced by the ideas he has made public in the newspaper. It would not
be logical to think otherwise."

Mr Sjocrona said Lord McCluskey had depicted the convention as a Trojan
horse and a kind of atomic bomb, rather than an instrument to protect human
rights.

He added: "Lord McCluskey wholeheartedly underscores that the ECHR is for
weirdos and a pain in the neck for judges.

"A pain in the neck can cause a headache and it is difficult, if not
impossible, to think clearly in such a condition."

"The article expresses a strong aversion to the ECHR by Lord McCluskey and
he cannot be considered to be impartial. That reflects on the bench as a
whole - the bench needs to be impartial for a fair hearing in terms of the
convention."

Lord Rodger said full reasons for disqualifying Lords Kirkwood and
Hamilton, as well as Lord McCluskey, would be issued later.
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