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Ecclesiastical Case Reports
McGonnell v United Kingdom
European Court of Human Rights, February 2000
Separation of judiciary and executive – Article 6 – fair trial
The Bailiff of Guernsey is appointed by the sovereign and holds office during the sovereign’s pleasure. He is President of the States of Election, President of the States of Deliberation, President of the Royal Court, President of the Court of Appeal and Head of the Administration. In his judicial capacity he is the sole professional judge with lay Jurats in the Royal Court. The applicant complained that there had been a breach of Article 6(1) of the European Convention on Human Rights, the right to a fair trial. The applicant pointed to the non-judicial functions of the Bailiff contending that they gave rise to such close connections between the Bailiff as a judicial officer and the legislative and executive functions of government that the Bailiff no longer had the independence and impartiality required by Article 6. In particular the Bailiff had presided over the States of Deliberation when a particular development plan was adopted. The court ruled that there was no suggestion that the Bailiff was subjectively prejudiced or biased. It was solely concerned with the question of whether the Bailiff had the required appearance of independence or the required ‘objective’ impartiality. The court stated that holding even a purely ceremonial constitutional role must be classified as a ‘function’. The ECHR considered that any direct involvement in the passage of legislation or of executive rules is likely to be sufficient to cast doubt on the judicial impartiality of a person subsequently called on to determine a dispute over whether reasons exist to permit a variation from the wording of the legislation or rules at issue.
[JG]
Note: With effect from 2 October 2000, the European Convention on Human Rights will become directly justiciable in English courts including consistory courts. Although this case turned on very particular facts, the roles of the Dean of the Arches, the Vicars General and certain chancellors who both sit in the legislative chamber of General Synod and also exercise judicial functions may need to be reconsidered. See M Hill, The Impact for the Church of England of the Human Rights Act 1998 at page 341 of this volume.
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