Scottish High Court of Justiciary Decisons

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Cite as: [2005] ScotHC HCJAC_128, 2005 GWD 39-723, [2005] HCJAC 128, 2005 SCCR 736, 2006 JC 147

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McLeod v. Her Majesty's Advocate [2005] ScotHC HCJAC_128 (12 October 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Macfadyen

Lady Cosgrove

Lord Emslie

[2005HCJAC128]

Appeal No: XC48/05

OPINION OF THE COURT

delivered by LORD EMSLIE

APPLICATION

under section 107(8) of the Criminal Procedure (Scotland) Act 1995

PETER McLEOD

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Ogg, Solicitor Advocate; Gilfedder & McInnes, Edinburgh

Respondent: Beckett, Q.C., A.D.; Crown Agent

12 October 2005

[1] On 12 November 2004, after trial before Sheriff Pettigrew and a jury at Paisley Sheriff Court, the appellant was unanimously found guilty of assaulting another man to his severe injury in August 2003, and of committing this offence while on bail. On 14 December 2004, the sheriff sentenced the appellant to 3 years imprisonment, of which 3 months related to the bail aggravation.

[2] The appellant appealed against both conviction and sentence, advancing one ground of appeal in respect of his conviction, and three against the sentence imposed. On 9 May 2005 the first sift judge, with reasons, refused leave to appeal on both conviction and sentence. On 25 May 2005 three second sift judges, including the Lord Justice Clerk, granted leave to appeal against conviction only, refusing leave quoad sentence for the reasons given by the first sift judge.

[3] By reference to section 107(8) of the Criminal Procedure (Scotland) Act 1995, the appellant now seeks the leave of the court, on cause shown, to pursue his appeal against sentence notwithstanding the fact that leave to do so was refused outright at both first and second sift. Put shortly, the appellant contends, first, that recourse to section 107(8) in such circumstances is competent; second, that sufficient cause exists to entitle this court to grant the application; and third, that the appeal against sentence is indeed arguable on the grounds stated.

[4] Section 107 of the 1995 Act makes provision for the grant or refusal of leave to pursue criminal appeals in solemn cases. Under subsections (1), (2) and (6), an application for leave initially falls to be determined in chambers by a single judge of the High Court on a consideration of various specified documents. This stage of proceedings is commonly referred to as the first sift. If leave is refused, the appellant may then "apply to the High Court" for the requisite leave under subsection (4), and by virtue of subsections (5) and (6) the matter is again determined in chambers on a consideration of documents. This stage of proceedings is commonly known as the second sift, and in practice involves three judges where an appeal is against conviction, and two where it is against sentence only. Both first and second sift decisions are recorded on printed forms which call for a separate determination on each of conviction and sentence if both are in issue. Under subsections (1)(b)(i) and (5)(b)(i), reasons must be given where leave to appeal is refused. By contrast, on a grant of leave, subsections (1)(a) and (5)(a) merely permit the making of such written comments as may be thought appropriate, and subsection (7) permits such comments to specify the arguable grounds of appeal on the basis of which leave to appeal is granted.

[5] Subsection (8) of section 107 then goes on to provide as follows:-

"Where the arguable grounds of appeal are specified by virtue of subsection (7) above it shall not, except by leave of the High Court on cause shown, be competent for the appellant to found any aspect of his appeal on any ground of appeal contained in the note of appeal but not so specified."

The stated exception would appear to be conceived in favour of an appellant who seeks to augment a partial grant of leave by reference to existing grounds of appeal which have not been specified as arguable. As the court confirmed in Beggs v H.M. Advocate 2005 SCCR 47, application to the second sift is not competent for that purpose. The mechanism whereby entirely new grounds of appeal may subsequently be incorporated within an existing grant of leave is contained in section 110(4) of the Act.

[6] The principal issue arising for determination in the present case concerns the proper scope of section 107(8) of the Act. In particular, can an appellant competently have recourse to that subsection with a view to resurrecting an appeal against either conviction or sentence for which leave has thus far been refused in its entirety? Clearly section 107(8) is not, on its terms, available where the appellant is unable to point to any partial grant of leave at all. In the circumstances of this case, however, while leave to appeal against sentence was refused altogether at both first and second sift, the second sift judges granted the appellant leave to appeal against his conviction. He now contends that this latter grant of leave quoad conviction entitles him to the benefit of section 107(8) quoad sentence.

[7] In developing the foregoing contention on the appellant's behalf, Miss Ogg recognised from the outset that its validity depended on the proposition that her client's appeal against conviction and sentence was single and indivisible, since only on that basis could the granting of leave to appeal against conviction be deemed a partial grant vis-à-vis the whole appeal. She therefore sought to persuade us that this was the correct analysis, founding strongly on the fact that section 106(1) of the Act confers a right of appeal ...

"(a) against conviction ... ;

(b) ... against the sentence passed on such conviction ... ;

..... or

(f) against ... both such conviction and ... sentence ... ".

Subparagraph (f), it was submitted, denoted a unitary appeal just as much as subparagraph (a) or (b), and it was significant that in all cases subsection (3) provided for miscarriage of justice to be the sole ground upon which an appeal might be granted.

[8] Under sections 109 and 110, moreover, a single notice of intention to appeal, and a single note of appeal, required to be lodged on the appellant's behalf, and his grounds of appeal thus related to the whole appeal and were in that respect indivisible. Since any contrary practice at the stage of the first or second sift was non-statutory and administrative, it could carry no weight in supporting a different conclusion. As was observed by the Lord Justice General in Beggs, supra, at paragraphs 7 and 9, grounds of appeal not specified by a sifting judge under section 107(7) were not to be taken as refused; the position was that they were merely not to be founded on unless with leave of the court, on cause shown, under section 107(8); and the corollary was that recourse to the second sift was not competent in respect of such a partial grant of leave. For these reasons, Miss Ogg urged us to construe section 107 as dealing with a single appeal, and the sift process as concerning all of the grounds of that appeal. In her submission it would be wrong to approach the appellant's appeal against conviction and sentence as if it comprised two separate appeals. On the contrary, the granting of leave quoad conviction opened the way for an application under section 107(8) in respect of the appellant's grounds of appeal against sentence.

[9] In reply, the learned advocate depute maintained that the appellant's approach was misconceived, and that on a proper construction of the legislation section 107(8) was not available in respect of any appeal (such as, for example, the appellant's appeal against sentence) for which leave had previously been refused in its entirety. Section 106(1) of the Act began by listing (in subparagraphs (a) and (b)) an appeal against conviction separately from an appeal against sentence, and it was significant that section 118 made separate and distinct provision as to the court's powers of disposal in these two different modes or categories of appeal. This was unsurprising, since the subject-matter of these modes or categories of appeal was entirely different, and the court's practice at the sifting stage correctly reflected the reality of the situation. According to the advocate depute, it would be absurd if section 107(8) allowed an appellant to seek leave to pursue an appeal against conviction, or an appeal against sentence, where leave to pursue the relevant mode or category of appeal had been refused altogether by the sifting judge or judges.

[10] As intimated orally at the conclusion of the hearing, we are satisfied that the appellant's application under section 107(8) is incompetent and must be refused on that ground. An appeal against conviction is in its nature quite different from an appeal against a consequent sentence or other disposal. There can be no overlap of grounds between the two categories of appeal, and the appellate court's powers are separately specified in section 118. While it is true that sections 106(1)(f), 109 and 110 permit appeals in both categories to proceed in tandem, and without administrative duplication, we do not regard that fact as sufficient to assimilate the two categories or to blur their essential differences. Prima facie we think that it would be strange if the grant of leave to appeal in one category were to be understood as affecting, or a fortiori as weakening, an outright refusal of leave in the other.

[11] In practice, therefore, the sifting judges deal separately with the grant or refusal of leave to appeal quoad conviction and sentence. Similarly, notwithstanding a grant of leave by the first sift judge in one category, recourse to the second sift is regarded as competent against refusal of leave in the other. In the present case the appellant proceeded (albeit unsuccessfully) to the second sift on the basis that leave to appeal had been refused under section 107(1). Logically, and as the court held in the case of Beggs, if a supposed partial grant along the lines suggested by the appellant had arisen at the first sift stage, for example by reason of leave to appeal being granted in respect of conviction alone, that would have precluded any competent recourse to the second sift on the arguability of the grounds of appeal against sentence, and would have left the appellant with no option but to try to meet the test of "cause shown" under section 107(8). In our view, this would represent an inappropriate and undesirable construction of the legislation from the point of view of appellants in general. We therefore have no difficulty in rejecting the same contention for present purposes also.

[12] Looking at the matter a little more broadly, it is clear that under section 107(1) and (4) of the Act, Parliament has provided for a two-stage sifting procedure to determine whether or not an appeal should, in whole or in part, be regarded as arguable and thus suitable to go forward to a full hearing. Where, as in this case, an appeal against sentence fails altogether at both stages, it seems to us that to allow an appellant to persist further would run counter to the desirable objectives of certainty and finality in the appeal process. A three-judge quorum has already ruled against the arguability of the appellant's appeal on sentence, and we are unable to accept that the certainty and finality of that ruling should be capable of being opened up merely because, at the same time, leave to appeal on a quite different matter, namely conviction, was granted. Moreover, since the latter grant applied to the totality of the appeal against conviction, it did not in its proper context amount to a partial grant for the purposes of section 107(8), and a fortiori we see no good reason why it should be held to amount to a partial grant with regard to the appellant's appeal against sentence.

[13] For the foregoing reasons the present application is dismissed as incompetent.

[14] In these circumstances it is unnecessary for us to deal in any detail with Miss Ogg's contentions on "cause shown" and "arguability". As regards the former, we would merely record that Miss Ogg sought to rely on a genuine error on her part, in thinking that the whole of the 14-day time-limit for an application to the second sift would remain available for the submission of supplementary material. In the event, an early application was determined within the 14-day period, and without reference to the supplementary material which it had been intended to submit. As regards the latter issue of arguability, even allowing for Miss Ogg's supplementary material, it is highly unlikely that our conclusion would have differed from that reached by the first and second sift judges. In all probability, therefore, had the application been competent, we would have refused it on its merits.