Scottish High Court of Justiciary Decisons

PETITION OF JOSEPH GRANGER TO THE NOBILE OFFICIUM [2001] ScotHC 17 (11th April, 2001)

[1] The petitioner was convicted of perjury at the High Court of Justiciary at Glasgow on 14 March 1985 and sentenced to five years imprisonment. He appealed against the conviction and his appeal was heard on 27 September 1985 and 6 March 1986. The petitioner had been refused legal aid to enable him to be represented at the said appeal which was refused. Thereafter the petitioner applied to the European Court of Human Rights and in terms of a judgment dated 28 March 1990 that court determined that there had been a violation of the petitioner's rights under Article 6(3) of the Convention for the Protection of Human Rights and Fundamental Freedoms. Following the issue of the judgment of the European Court of Human Rights the petitioner requested the Secretary of State for Scotland to remit the case back to the High Court of Justiciary to enable the petitioner to seek the quashing of the said conviction. The Secretary of State for Scotland refused said request. On 14 April 2000 the petitioner requested the Scottish Criminal Cases Review Commission (hereinafter referred to as "SCCRC") to examine his case with a view to it being referred back to the High Court of Justiciary. The SCCRC declined to do so but suggested that the petitioner should present a petition to the nobile officium. In these circumstances the present petition was presented to the court and came before me on 3 April 2001 for an order for intimation and service.

[2] It is clear from the prayer of the petition that the petitioner seeks to set aside his conviction in the light of the decision of the European Court of Human Rights. Such a course would inevitably involve this court subjecting to review the interlocutor which dismissed the petitioner's appeal in 1986. Section 124(2) of the Criminal Procedure (Scotland) Act 1995, as amended, (hereinafter referred to as "the 1995 Act") prohibits the review by any court of every interlocutor and sentence pronounced by the High Court of Justiciary except in cases referred to that court by the SCCRC in terms of section 194B of the 1995 Act, or cases which are appealed to the Judicial Committee of the Privy Council under paragraph 13 of schedule 6 of the Scotland Act 1998. In my opinion it is clear from the terms of section 124(2) that unless the petitioner can bring himself within either of these exceptions the present petition is incompetent.

[3] Counsel for the petitioner sought to persuade me that notwithstanding the unequivocal language of section 124(2) it was nevertheless competent for the court in the exercise of its nobile officium to consider the procedure which was adopted by the court in 1985 and 1986 when the petitioner's appeal was heard, but it became clear that the only meaningful purpose of such an exercise would be the review of the interlocutor of the court in 1986. Indeed the terms of the prayer in seeking to set aside the petitioner's conviction must, of necessity, involve the review of the court's interlocutor in 1986. I was referred to the cases of Beattie v HMA 1995 S.C.C.R. 93 and Hoekstra and Others v HMA (No.2) 2000 S.C.C.R. 367. I did not consider that either of these cases assisted the petitioner's contention that notwithstanding the terms of section 124(2) of the 1995 Act it was competent for the court in the exercise of its nobile officium to review its earlier decision. Beattie v HMA was a case in which the Secretary of State for Scotland had exercised his power under section 263 of the Criminal Procedure (Scotland) Act 1975 (hereinafter referred to as "the 1975 Act") to refer the case to the court. Section 262 of the 1975 Act was a similar provision to section 124(2) of the 1995 Act relating to the finality of the interlocutors and sentences pronounced by the High Court of Justiciary, but that section was subject to the provisions of section 263. Thus there was a similar relationship between these provisions as exists between section 124(2) and section 194B of the 1995 Act. The case of Beattie therefore falls within one of the statutory exceptions to which I have referred and is of no assistance to the petitioner in the present case. As far as the case of Hoekstra v HMA (No.2) is concerned, that was a case of the High Court of Justiciary, in the exercise of its nobile officium, setting aside a purported interlocutor. The circumstances of that case were such that the court which purported to pronounce the interlocutor complained of was not a properly constituted court and therefore was incapable of pronouncing a valid interlocutor. In his submissions counsel for the petitioner accepted that the court in 1985 and 1986 was properly constituted and no criticism in that regard could be made of its interlocutor refusing the appeal. The only complaint which the petitioner had about the proceedings in 1985 and 1986 was that he had not been provided with free legal assistance to conduct his appeal.

[4] The case of Perrie, Petitioner 1991 S.C.C.R. 475, to which I was not referred, appears to me to be in point. In that case, at page 480G, the Lord Justice General stated:

In respect of the latter sentence the Lord Justice General then referred to an example where the court had pronounced an incompetent interlocutor and continued:

It appeared to me that the ultimate purpose of this petition was to enable the petitioner to argue the merits of the case with a view to the court altering its previous decision. Such a remedy is distinct from merely seeking the correction of an obvious error on the face of an interlocutor or the setting aside of an incompetent interlocutor and is specifically excluded by section 124(2).

[5] In all the circumstances I have concluded that the present petition is incompetent. Accordingly I have refused to grant an order for intimation and service.