Scottish High Court of Justiciary Decisons

IN PETITION TO THE NOBILE OFFICIUM BY DAVID ALEXANDER KERR v. HER MAJESTY'S ADVOCATE [2000] ScotHC 64 (2nd June, 2000)

On 28 February 1986, the petitioner, David Alexander Kerr, was sentenced to a period of 4 years and 3 months imprisonment in respect of a number of different charges. This period of imprisonment was to be served from the expiry of a sentence of 8 years, which had been passed on him in respect of a previous conviction. The petitioner appealed against the sentence of 4 years and 3 months imprisonment. Opinions were issued by the High Court of Justiciary in relation to that appeal, on 5 March 1999 and 13 August 1999. As is indicated in these opinions, the petitioner in his appeal against the sentence of 4 years and 3 months wished, but was not permitted, to raise matters which related to the previous conviction which resulted in the sentence of 8 years imprisonment. It is not necessary for us to consider that matter further.

[2] On 5 March 1999, the court was persuaded to allow the petitioner to submit an additional ground of appeal against sentence. According to the terms of that ground of appeal, it was stated that given the delay in bringing the appeal to a conclusion, and having regard to the appellant's health and the length of time that had elapsed since he was granted interim liberation, it would be contrary to the interests of justice for him to be returned to custody. In the opinion issued by the court on 13 August 1999, consideration is given to a proposition put forward by the petitioner's counsel, that there had been an unreasonable delay in the progressing of his appeal. In particular, the court considered a submission that over two periods, there had been delays which had come about through no fault on his part. The court was satisfied that in the whole circumstances the case was not one in which it could be said that there was any unreasonable delay which would justify their interfering with the sentence which was imposed upon him. In these circumstances the appeal was refused.

[3] By the present petition to the court's nobile officium, the petitioner asks us to set aside the decision of the Appeal Court of 13 August 1999, and to allow a further hearing of the appeal, with an opportunity for the petitioner to be heard. Both in the written petition, and in certain of the submissions advanced by Mr. Kerr, who appeared on his own behalf, there are some indications that Mr. Kerr wished this court, in this petition, to reconsider the merits of his appeal in relation to delay, and in effect to appeal against the refusal of his appeal. That would of course be entirely incompetent; but in the event, Mr. Kerr made it plain that this was not his intention. He acknowledged that the law was as stated in Windsor, Petitioner 1994 SCCR 59. He wanted to be heard again upon the issue of unreasonable delay - but he wanted this to occur in the appeal proceedings, and appreciated that that could only happen if the decision to refuse his appeal were to be quashed. Moreover, he acknowledged that in presenting this petition to the court's nobile officium, he could not ask for the Appeal Court's decision to be quashed upon the basis of a re-opening of the merits of the appeal. He was asking that the Appeal Court's decision should be quashed on the basis that they had exceeded their powers - which as Windsor demonstrated, might afford a ground for recourse to the nobile officium and the quashing of the decision which had been taken effectively ultra vires.

[4] The respect in which Mr. Kerr contends that the court went beyond its powers is this. After the additional ground of appeal was allowed on 5 March 1999, two summaries were prepared by the clerk to the court, setting out a history of the interlocutors which had been pronounced in the long course of the appeal proceedings, and a history of correspondence relating to the appeal. Mr. Kerr's position is that these contain material errors, and that the court not merely relied upon these erroneous documents, but did so with no opportunity having been afforded to Mr. Kerr, his solicitor or his counsel either to consider the documents, or to make submissions to the court in relation to them, pointing out the respects in which they were wrong and should not be relied upon.

[5] Mr. Kerr drew our attention in particular to the record which these documents contain of events on 9 July 1992. The history of interlocutors records "Petition presented under section 252 of the Criminal Procedure (Scotland) Act 1975 dismissed by Court." Mr. Kerr acknowledged that a petition had been presented under that section of the 1975 Act, but said that it had been granted rather than dismissed, certain documents which he had sought being obtained by him. This does not, however, appear to be an error made by the clerk in compiling the history of interlocutors, since the interlocutor indeed records dismissal. However, in the other document, recording the history of correspondence, what appears in respect of this date is an entry recording "Petition to nobile officium heard on 9 July 1992 - petition dismissed." It is clear that this is an error: it is acknowledged that there was never such a petition to the nobile officium, and that the petition which was heard on that date was a petition in terms of section 252 of the 1975 Act, as the interlocutor shows. The matter is not entirely without significance, since the Opinion of the Court dated 13 August 1999, evidently relying upon this entry in the history of correspondence, states that "a petition to the nobile officium was presented to this court and was dismissed on 9 July 1992" and subsequently mentions this petition to the nobile officium and its dismissal again - in the context of a paragraph which acknowledges that the appellant was apparently taking steps, or endeavouring to take steps, in order to challenge the 1985 conviction, during the period between 1992 and 1995. If there was never such a petition to the nobile officium, then whatever steps the petitioner was taking did not include that step, for which the Appeal Court was thus giving him "credit" in considering the question of delay.

[6] The other main matter upon which Mr. Kerr submitted that there was material error relates to the events of 8 May 1992. At that date, his 8 year term of imprisonment was finished, and he was serving the 4 years and 3 months against which the appeal was taken. Mr. Kerr said that he had obtained weekend leave from the open prison where he was held, and that when he had phoned the prison to ask for an extension for personal reasons, he was told that he did not need this, as he was "out on parole". Whether or not there was any such reference to "parole", it is evident that he was granted interim liberation pending the appeal, and was in fact thus at liberty until 13 August 1999. A document purportedly signed by him, a few days later, accepting bail conditions, was said by Mr. Kerr to be a forgery. What appears in this connection in the documents prepared by the clerk of court is to be found in the history of interlocutors. Under 30 April 1992, there is a record of the petition for bail being scheduled to be heard on 8 May 1992; and on that latter date, there is the name of counsel and an entry to the effect that "petition for bail allowed and appellant admitted to bail." Mr. Kerr has not persuaded us that these entries are in any way incorrect, and indeed we find it hard to understand how there could be any such record of interlocutors if, as Mr. Kerr appears to be suggesting, his continued liberty after that date was attributable not to liberation by the court, but to some kind of liberation without the court's intervention.

[7] Mr. Kerr referred to certain other entries contained in the clerk's documents - in particular a continuation recorded on 20 February 1992 to await the decision in Windsor and because shorthand notes had not been extended. It did not, however, appear that he was claiming that this was erroneous in itself, although he explained problems which he had had in relation to a person who had been acting as his solicitor, and who had gone missing with significant documents. We should also mention a separate argument, to the effect that there was no record of any warrant upon which he could be held in prison after 13 August 1999: it is not apparently suggested that there was no warrant granted by the court when his appeal was refused, and on his return to prison, what would be required would not be a new warrant, but the original warrant upon which he was held in respect of the sentence of 4 years and 3 months. We can see no relevance in this matter to any argument that the court exceeded its powers.

[8] Overall, the argument that the court exceeded its powers in some way, in relation to the documents prepared by the clerk to the court, seems to us to be misconceived. In so far as Mr. Kerr or those advising him wished the court to consider questions of unreasonable delay, it would be for them to put to the court the history of events which they relied upon. So far as the court is concerned, it is of course entirely proper for it to rely upon the court's records, whether in interlocutors or in correspondence, and to be properly prepared upon that basis, with such notes or summaries as may appear useful, prior to any hearing in which submissions are to be heard from an appellant upon a given matter. If, in the course of such submissions, it appears that there is some conflict between what is put to the court on behalf of an appellant, and the court's own records or notes, then in response to such submissions, the court can raise the matter, and if the records contain any material error, that will emerge.

[9] It is clear that the court, in refusing the appeal and issuing the opinion of 13 August 1999, had heard the submissions of Mr. Kerr's counsel upon the question of unreasonable delay. The interlocutor of 13 August, and at least some recollection on the Crown's side, suggests that counsel for Mr. Kerr indeed addressed the court on 13 August. Mr. Kerr told us that his recollection was that while his counsel had addressed the court on 5 March, neither he nor the Advocate Depute had ever got to their feet on 13 August. The court had therefore simply proceeded upon the basis of these documents, which had been handed up to the court on that date. Mr. Kerr's recollection was also that there had been no opportunity afforded to his counsel to see these documents in advance. That again appears to be contradicted by others. It is, however, in our opinion unnecessary to resolve these conflicts as to precisely what happened. There is no obligation upon a court to supply those appearing before it with preparatory notes of this type. It may on occasion be useful to the court or the parties for something along these lines to be done. But it was for Mr. Kerr and those representing him to decide what matters they wished to bring to the court's attention, and there is in our opinion no excess of power in a court considering its own records and relying upon them if nothing in conflict is said on behalf of the appellant. In this case, it appears to us that the only error, in relation to the petition to the nobile officium, was either neutral or in Mr. Kerr's favour. It is not for us to consider whether there was any basis for the claim that there had been unreasonable delay: that was a matter for the Appeal Court, and has been disposed of. We see no basis for thinking that in disposing of it, the court erred in any way in its obligations to Mr. Kerr and those who were representing him, or took into account any matter which, either in response to counsel or otherwise, required to be brought to the attention of Mr. Kerr and those acting for him.

[10] In the whole circumstances, we are satisfied that this petition to the nobile officium lacks the necessary foundation of a relevantly averred excess of power, and the petition must accordingly be dismissed as incompetent.