Davidson v Scottish Ministers (No.2) [2004]

English Constitutional Law

Davidson v Scottish Ministers (No.2) [2004]
‘The Prisoner’ by Vladimir Makovsky

The pollution of judicial impartiality was an issue raised by a prison inmate when campaigning for a transfer on grounds of Convention rights and when faced with a verdict that ran contrary to his calculated expectations.

While serving sentence in HMP Barlinnie, Scotland, the appellant took issue with the prison when complaining that his living conditions ran counter to his rights under art.3 of the European Convention on Human Rights (ECHR) (Prohibition of torture) which explained that:

“1. No one shall be held in slavery or solitude.

2. No one shall be required to perform forced or compulsory labour.

3. For the purpose of this Article the term “forced or compulsory labour” shall not include:

(a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;

(b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;

(c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community;

(d) any work or service which forms part of normal civic obligations.”

And so citing he was justified a transfer to a more suitable prison, the appellant raised a petition and an order for specific performance under a claim for damages, while further requesting that the respondents personally arrange for his transfer and compensation.

In the first instance the Court of Session refused to issue orders against them on grounds that s.21(a) of the Crown Proceedings Act 1947 explained that:

“(a)where in any proceedings against the Crown any such relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance, the court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties…”

However the court denied such an order while the Extra Division followed suit for the same reasons before the appellant was again denied recourse before the House of Lords until the appellant discovered that one of the presiding judges (Hardie LJ) had been involved in the amendment of the 1947 Act while serving as Lord Advocate, and that his presence contributed to the inclusion of Scottish Ministers when protecting members of the Crown under s.38(2), which stated that:

“”Civil proceedings’’ includes proceedings in the High Court or the county court for the recovery of fines or penalties, but does not include proceedings on the Crown side of the King’s Bench Division;…’’Officer’’, in relation to the Crown, includes any servant of His Majesty, and accordingly (but without prejudice to the generality of the forgoing provision includes a Minister of the Crown and a member of the Scottish Executive.”

Thus the appellant alleged ‘actual bias’ within the reclaim hearing and sought a re-trial under the rule of law for the purposes of objectivity and equity, whereupon the House of Lords referred to Porter v Magill in which they had held that:

“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.”

And so after careful examination of the actual degree to which Lord Hardie had been involved in the amending of the statute, the House dismissed the appeal on grounds that the origins of that particular legislative change had stemmed directly from the mind of Donald Stewart MP who was at the time the Secretary of State for Scotland, and that Lord Hardie had merely been representative of those actions within his professional capacity, while clarifying for the parties that:

“[A] risk of apparent bias is liable to arise where a judge is called upon to rule judicially on the effect of legislation which he or she has drafted or promoted during the parliamentary process.”

Author: Neil Egan-Ronayne

Author and foodie...

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