A JUDGE’S casual Sunday afternoon chat with his wife has caused a murder trial to be abandoned.
Sean Murphy, QC, discovered during the conversation that his wife was a distant relative through marriage of the man whose death was at the centre of the trial.
In what are believed to be unprecedented circumstances, Judge Murphy decided he had to stand down from hearing the case at the High Court in
It was the second attempt to try two men accused of murdering a man at a public house in Musselburgh, East Lothian. A first trial had to be halted because the judge on that occasion, Lady Dorrian, discovered that she knew one of the witnesses.
The third staging of the trial before another judge and jury will take place in October.
Judge Murphy told jurors that it had become “horribly apparent” to him that his wife was related to the deceased, David McCardle, 40, of Musselburgh, and that he had decided it would be inappropriate to continue as trial judge. The jury had heard five days of evidence.
“It is very unfortunate things have turned out this way and I very much regret this has happened… you appreciate that justice must not only be done but must be seen to be done,” he added.
Ross Tait, 22, and Ryan Cameron, 25, denied murdering Mr McCardle on 12 August last year at a lane, or vennel in North High Street, Musselburgh, by kicking him on the head and body, and striking him repeatedly with a hammer, a metal beer barrel and a brush.
A trial at the High Court in Glasgow in April ran for three days before Lady Dorrian recognised a witness and decided she had to withdraw from hearing the case.
It started again in Edinburgh ten days ago before Judge Murphy, who normally sits as a sheriff but is drafted in as a
temporary judge at the High Court when the need arises.
Last weekend, Judge Murphy had “a casual domestic conversation” and learned that his wife’s late aunt had been a sister of Mr McCardle’s grandmother. Judge Murphy said he knew his wife had relatives from Musselburgh and before the trial he had checked names in the charges and on the witness list, but found nothing to cause him any disquiet.
It turned out, however, that the connection between his wife and Mr McCardle had been through marriage when surnames had changed.
“To my knowledge, I had not met him or any other member of his side of the family. Had I been aware that his family were related to my wife, I would have declined to hear this case,” he said.
Judge Murphy noted that 12 witnesses had given evidence and some had clearly found it an upsetting experience, which would have to be repeated at a new trial.
Defence lawyers insisted there was no criticism to be made of the judge but they submitted that the trial had to be aborted.
“The potential difficulties [of continuing the trial] are not so much real as ones of perception and the idea of justice being seen to be done,” said Brian McConnachie, QC, for Tait.
The prosecution argued that the link with the judge was so tenuous that the trial could continue, but Judge Murphy decided to “recuse” himself.
Judge Murphy said: “Any connection to the deceased’s family on my part could give rise to a perception that a fair trial has not taken place. This is a trial for murder. The two accused face the most serious charge in our criminal law and there must be no question of doubt as to the fairness of the trial and the
impartiality of the judge.”