Pubdate: Fri, 10 Mar 2000
Source: Independent, The (UK)
Copyright: 2000 Independent Newspapers (UK) Ltd.
Contact:  1 Canada Square, Canary Wharf, London E14 5DL
Website: http://www.independent.co.uk/
Author: Robert Verkaik, Legal Affairs Correspondent 

DRUG CASE JUDGES ARE ORDERED TO STAND DOWN

Three of Scotland's most senior judges were ordered to stand down from an
appeal hearing yesterday after one of them wrote a newspaper article
criticising the country's newly enacted human rights legislation.

The appeal by four foreign drug smugglers will now have to begin again,
adding UKP250,000 to the Scottish taxpayers' costs.

Lawyers for the appellants argued before the Scottish Supreme Court in
Edinburgh that Lord McCluskey's comments meant the tribunal was no longer
impartial. Three new judges will have to be appointed to replace Lord
McCluskey as well as Lord Kirkwood and Lord Hamilton, who, the lawyers
argued, have been tainted by association.

The four Dutch nationals are serving prison sentences totalling 48 years
for their part in a UKP10m cannabis-smuggling racket. The men were jailed
at the High Court in Edinburgh in1997.

Their appeal is being heard in sections. The first part went before the old
tribunal in January and the second was due to be heard earlier this week
with another five days of court time set aside for the case.

But the drug dealers' lawyers challenged the presence of Lord McCluskey as
the chairman of the bench, arguing that his views on the European
Convention on Human Rights expressed in Scotland on Sunday in February
meant he could not be impartial in their case.

Part of the Dutchmen's appeal relied on the convention, which was
introduced in Scotland last May under the Human Rights Act.

The three members of the Supreme Court panel - the Lord Justice-General of
Scotland, Lord Rodger of Earlsferry, Lord Sutherland and Lady Cosgrove -
said that they would uphold the challenge brought against the original
appeal bench. Lord Rodger, Scotland's senior judge, said: "In light of the
submissions made today we are satisfied that future stages of this appeal
should be heard by a differently constituted bench.

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

The decision means the earlier phase of the legal challenge, which took up
10 days of the Court of Criminal Appeal's time and resulted in a 79-page
judgment rejecting some of the grounds of appeal, will not stand.

The legal challenge follows Lord McCluskey's attack on the convention,
which has already had a significant impact on the Scottish legal system,
including a ruling outlawing temporary sheriffs.

In the article, Lord McCluskey said he had not changed his views since a
Reith lecture he delivered in 1986 on Canada's bill of rights, which is
modelled on the convention. He said: "I warned [that] the Canadian Charter
would provide a field day for crackpots, a pain in the neck for judges and
a gold mine for lawyers."

He also said that if you canvassed opinion on the convention since it was
introduced to the Scotland in May last year you could expect "a somewhat
jaundiced reply.

"So far, it is not clear that anyone has benefited from the cases, other,
one has to say, than the lawyers and a fair number of persons who have been
spared the necessity of appearing in court to answer criminal charges,"
Lord McCluskey said.
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