APPEAL COURT, HIGH COURT OF JUSTICIARY
C.G.B. Nicholson, CBE, QC
Appeal No: MISC140/05
OPINION OF THE COURT
delivered by LORD MACFADYEN
PETITION TO THE NOBILE OFFICIUM
HER MAJESTY'S ADVOCATE
Appellant: Ms. Ogg, Solicitor Advocate; Gilfedder & McInnes
Respondent:Di Rollo, Q.C., A.D.; Crown Agent
16 August 2005
Procedural History On 4 November 2004 the petitioner, Garry Strang, was convicted at the High Court in Edinburgh of three charges of contravening section 4(3)(b) of the Misuse of Drugs Act 1971. On 26 November 2004 a cumulo sentence of six years imprisonment was imposed.  On 8 March 2005 a Note of Appeal against conviction and sentence was lodged on the petitioner's behalf under section 110 of the Criminal Procedure (Scotland) Act 1995 ("the Act"). Solicitors in Paisley were acting on his behalf in the proposed appeal, and the Note of Appeal identified them, and also the firm of solicitors acting as their Edinburgh agents. The Note of Appeal was signed by Ann Ogg, the solicitor advocate instructed to represent the petitioner in the proposed appeal.  The Note of Appeal contained three grounds of appeal, two directed against conviction, and one which contained three points directed against sentence. The first ground of appeal challenged the soundness of the decision by the trial judge to admit, in terms of section 259 of the Act, evidence of a tape-recorded interview with a witness, Wendy Garden, who could not be found at the time of the trial. The second ground of appeal challenged the directions given by the trial judge as to the proper approach to the evidence of Wendy Garden in respect that she had been interviewed as a suspect. The ground of appeal against sentence raised points relating to the petitioner's lack of analogous record and his role in the offences, and an issue of comparative justice as between the petitioner and his co-accused, James McBride.  The Note of Appeal and the other relevant documents were, in accordance with section 107 of the Act, placed before a judge of the High Court for a decision as to whether to grant leave to appeal for the purposes of section 106(1) of the Act. On 9 May 2005 the judge refused leave to appeal, and stated his reasons for doing so. Those reasons were expressed in the following terms:
"The trial judge clearly sets out in his report at pages 3 to 6 inclusive the steps taken to locate the witness. Having regard to that, it cannot be said that the trial judge erred in reaching the conclusion which he did. Ground 1 of the appeal is unarguable. In relation to ground 2 the direction given by the trial judge was appropriate and adequate. There is no merit in the appeal against conviction. In relation to the appeal against sentence, the appellant was convicted unanimously of being concerned in the supplying of a controlled drug over a period of three and a half years. He played a significant role in this operation. In the whole circumstances it cannot be said that the period selected by the trial judge was excessive. There is no merit in this appeal."
That decision was intimated by the Depute Clerk of Justiciary to the Edinburgh agents by letter dated 11 May 2005. The letter stated:
"You have the right to appeal against this refusal of leave to appeal by intimating same to this office within 14 days from the date of this intimation."
"We are writing to advise you that we wish to appeal against that refusal."
On the same date, the Edinburgh agents wrote to Ms Ogg in the following terms:
"GARRY STRANG. APPEAL.
We enclose herewith a copy of the first sift judicial comments in connection with the above case. Leave to appeal has been refused. We have intimated an appeal against that decision.
If there are any written submissions you wish to have lodged in support of this appeal we would be obliged to have them as soon as possible as the last date for lodging is 25 May 2005."
"Further to your letter of 11 May 2005 Mr Strand (sic) wishes to appeal against the refusal of leave to appeal.
In relation to the first ground of appeal attempts are being made to recover the witness citations in respect of the witness Wendy Garden. As soon as they are to hand further detailed submissions for the second sift will be lodged. On behalf of [the Paisley solicitors] I would be grateful if this appeal could be withheld from the second sift until then."
"We agree with the reasons given by [the first sift judge]. No attempt has been made by the appellant's solicitor to suggest why those reasons are wrong. We also agree with the response of the trial judge in his careful and helpful note."
Ms Ogg was informed of that state of affairs by telephone on 26 May, and by letter of the same date.
The legislation Before we turn to the terms of the petition and the submissions advanced before us by Ms Ogg on behalf of the petitioner, it is convenient to set out the relevant provisions of the Act. Section 106(1) confers on a person convicted on indictment a right to appeal to the High Court "with leave granted in accordance with section 107 of this Act". In terms of section 107(1) the decision whether to grant leave to appeal is made by a single judge of the High Court, the so-called first sift judge. In terms of section 107(1)(b)(ii), where leave is refused to an appellant who has been sentenced to imprisonment but is on bail, the first sift judge grants warrant to apprehend and imprison him. Subsection (3) provides as follows:
"A warrant granted under subsection (1)(b)(ii) above shall not take effect until the expiry of the period of 14 days mentioned in subsection (4) below (and if that period is extended under subsection (4A) below before the period being extended expires, until the expiry of the period as so extended) without an application to the High Court for leave to appeal having been lodged by the appellant under that subsection."
Subsection (4) provides as follows:
"Where leave to appeal is refused under subsection (1) above the appellant may, within 14 days of intimation under subsection (10) below [of the decision under subsection (1)], apply to the High Court for leave to appeal."
Subsection (4A) permits the High Court, on cause shown, to extend (prospectively or retrospectively) the period of 14 days mentioned in subsection (4). Subsection (5) provides that in deciding the application under subsection (4) the High Court, the so-called second sift judges, like the first sift judge, shall consider the documents mentioned in subsection (2), namely: (a) the note of appeal; (b) in appeals from the sheriff court, the record of proceedings at the trial; (c) the trial judge's report; and (d) where applicable, the transcript of the charge. There is no express provision contemplating the making of additional submissions in support of the application to the second sift judges under section 107(4).
The petition On 9 June 2005 the petitioner presented this petition to the nobile officium of the court. The prayer of the petition seeks (1) an order quashing the decision of the second sift judges to refuse leave to appeal, and (2) an extension of the period of 14 days [referred to in subsection (4)] "to allow submissions to be made by the Petitioner to the second sift".  The statement of facts in the petition, after setting out the procedural history which we have summarised in paragraphs  to  above, proceeded as follows:
That when intimating the appeal to the second sift on 13 May 2005 [the Edinburgh agents] proceeded on the basis that a period of 14 days was available to lodge submissions on the Petitioner's behalf and that the appeal would not proceed to the second sift until that period had expired. This would allow any further submissions to be made by the Petitioner's solicitor advocate.
That in terms of section 107(4) of [the Act] the petitioner has 14 days from the refusal at the first sift of leave to appeal to appeal against that decision. That period should have expired before the appeal is placed before the second sift for consideration. This would have allowed further amplification of the basis of the appeal or a request for an extension of time to be made. The procedure followed by [the Edinburgh agents] was in accordance with the procedure set out in the opinion of the Appeal Court in Ryan Petitioner 2002 SCCR 295 at paragraph 1 (sic; sc 7). The period of 14 days not having expired the appeal was not properly before the second sift and accordingly the decision of their Lordships was not competent."
In statement of facts 9, the relief sought is described, and it is then averred:
"The Petitioner has no remedy other than this Petition to the Nobile Officium of Your Lordship's (sic) Court."
Submissions for the petitioner The submission advanced by Ms Ogg in support of the petition was that for a period of 14 days after the intimation to an appellant's solicitors of refusal by the first sift judge of leave to appeal, proceedings were in effect suspended - as Ms Ogg put it, "in limbo". Irrespective of the date on which an application to the second sift judges under section 107(4) was intimated, that application could not competently be placed before the second sift judges, or considered by them, until the 14 day period mentioned in subsection (4) (and any extension of it granted under subsection (4A)) had expired. That proposition depended in part on a construction of section 107 and in part on an interpretation of an observation made in Ryan, Petitioner 2002 SCCR 295.  Ms Ogg submitted that support for her contention could be found in subsection 107(3). The fact that that subsection suspended the effect of any warrant granted under section 107(1)(b)(ii) until the expiry of the 14 day period indicated, she submitted, that the whole 14 day period had to pass before the application to the second sift judges could be considered.  Ryan, Petitioner was concerned with the construction of section 107 before it was amended by the insertion of subsection (4A). After refusal by the first sift judge of leave to appeal, the appellant's solicitors sought the advice of counsel on the drafting of the subsection (4) application. As a result of a series of mishaps, that application was not lodged timeously. The appellant then applied to the nobile officium for leave to appeal. The court, although critical of the inflexibility of section 107(4), held that the application was incompetent. Section 107 was subsequently amended by the insertion of subsection (4A) permitting extension of the time limit set in subsection (4). In the present case Ms Ogg relied on the following passage in the Opinion of the Court in Ryan, Petitioner at 297, paragraph :
"It would have been open to the petitioner's solicitors to comply with section [107(4)] by sending a short letter to the court simply intimating an appeal against the decision of the single judge. That would have preserved the petitioner's position and would have left open the opportunity to amplify the basis of the appeal before it was considered at the second sift."
Ms Ogg submitted that the present petitioner's solicitors had simply been following the guidance offered in that passage. They had sent the short letter intimating the appeal. That had preserved the petitioner's position. If it were competent for such an appeal to go immediately before the second sift judges, the opportunity to amplify the basis of the appeal was illusory. That was clearly not what the court in Ryan, Petitioner had intended. Ms Ogg pointed out that section 124 of the Act meant that the petitioner had no other remedy in the events which had happened than the present petition to the nobile officium.  Finally, Ms Ogg addressed a question put to her about what material she would seek to place before the court if the petition were granted and the question of leave to appeal fell to be reconsidered under section 107(5). As we have noted in paragraph  above, all that was mentioned by Ms Ogg in her letter of 25 May as holding up the lodging of detailed submissions at that time was an attempt to recover witness citations in respect of Wendy Garden. It has now been ascertained that these have not been preserved. Ms Ogg contemplates the presentation of an affidavit by Wendy Garden, but that requires sanction from the Scottish Legal Aid Board, which will not be forthcoming so long as the appeal procedure is spent, as it will remain unless this petition is granted. So far as the second ground of appeal is concerned, it is contemplated that a request will be made to listen to the recording of the speeches to the jury, in order to check how that point was developed at that stage. So far as the appeal against sentence is concerned, Ms Ogg placed greatest stress on the comparative justice point, but also drew attention to the fact that the trial judge, in his report at page 9, states that he "considered that the period of 5 years imprisonment was justified", when the minutes show that the sentence imposed was one of six years imprisonment.
The Crown submissions The Advocate depute submitted that section 107(4), soundly construed, did not prevent an application to the High Court under that subsection from being considered at any time after the application had been made. There was, he submitted, no justification for inferring that where an application was made before the end of the 14 day period, the balance of that period had to elapse before the application could competently be considered by the second sift judges. If more time had been required, an application could have been made under subsection (4A), but that had not been done. There was no incompetency in the manner in which the petitioner's subsection (4) application had been processed. The petition should therefore be refused.
Discussion In our opinion, Ms Ogg's construction of the relevant statutory provisions is incorrect. Soundly construed, section 107(4) provides for an application to the High Court for leave to appeal, where leave has been refused by the first sift judge. It sets a time limit for the making of that application. The time limit is 14 days from the date of intimation under subsection (10) of the first sift judge's decision. That means that the subsection (4) application may be made on any one of the fourteen days following that intimation. The application will be timeously made, whether made on the first or the fourteenth day. Subsection (4) says nothing, however, about when the application may be considered by the second sift judges. In particular, it contains nothing to suggest that an application made on the first day of the fourteen, must wait for the remaining thirteen days to pass before it can competently be considered.  There is, in our opinion, no merit in Ms Ogg's reliance, in this connection, on the terms of section 107(3). Although the warrant granted by the first sift judge is said to take effect on the expiry of the fourteen day period (or any extension of it) without an application to the second sift having been made, that lends no support to the contention that an application made within the 14 day period must wait until it expires before it can be considered. The point is that the only circumstances in which the warrant granted by the first sift judge is required is in the event of their being no application to the second sift. One cannot tell that that state of affairs has arisen until the last of the fourteen days has expired without a subsection (4) application having been made. The purpose of subsection (3), expressed as it is, is clear, and says nothing about when an application made early within the 14 day period may competently be considered.  Although section 107 has been amended so as to permit the extension, on cause shown, of the period of 14 days specified in subsection (4), that is not of direct relevance to the circumstances of the present case. The subsection (4) application here was timeously made, and there was no need for an application for an extension of time. The present case arises in the context of the practice of presenting additional written submissions in support of an application made under subsection (4). There is no express warrant in the statute for that practice. A comparison of section 107(1) with section 107(5) shows that both the first sift judge and the second sift judges are enjoined to have regard to the documents mentioned in subsection (2). The only difference is that the second sift judges must also consider the first sift judge's reasons for refusing leave to appeal. Nevertheless, the practice of presenting additional submissions at the stage of the application to the second sift has developed. It is commonly, although by no means universally, done. So long as the additional written submissions are confined to a re-articulation of the points made in the note of appeal, and do not stray into the stating of additional grounds of appeal, the practice may be helpful. The matter becomes more complex, however, when the additional written submissions do not accompany or form part of the subsection (4) application, but come after it. The practice that has developed is that solicitors, when lodging a subsection (4) application, may intimate that they are enlisting counsel's or a solicitor advocate's help in formulating the additional submissions, and ask for the case to be withheld from consideration by the second sift judges until that additional material is available. Such requests, when made, are frequently acceded to. More recently, however, in order to keep control of the period for which the matter is postponed, it has been usual for the Justiciary Office to indicate that the case will be withheld from the second sift only for a stated period. These are matters of informal administrative arrangement. We do not express any disapproval of them. It is important to note, however, that they depend on a request being made by the solicitors that the case be withheld from second sift. If no such request is made, there is nothing to prevent the subsection (4) application being placed before the second sift judges immediately. In this case no such request was made when the application under subsection (4) was intimated on 13 May 2005. The request made by Ms Ogg on 25 May came too late, because by the time she made it the application had already been considered and determined.  We do not consider that what was said in paragraph  of the Opinion of the Court in Ryan, Petitioner affords any ground for a belief that applications under subsection (4) will not be considered by the second sift judges until the expiry of the 14 day period. In that case the court was concerned with the regime which existed before extension of time under subsection (4A) was introduced. In paragraph  the court was identifying a step which might have been taken to ensure that an application was timeously made, while keeping open the possibility of amplifying the submissions in support of it in the light of counsel's advice. It seems to us that the court had in mind the not uncommon situation that some time elapses between the making of the subsection (4) application and its consideration under subsection (5), and was pointing out the possibility that amplified submissions might be made during that period. We do not consider that there is any reason to think that the court had specifically in mind the balance of the 14 day period either as the only period, or as a guaranteed period, affording the opportunity of presenting the additional material.  In the result, we are of opinion that Ms Ogg's submissions as to the proper construction of section 107 are not well founded. On a sound construction of the section, an application under subsection (4) may be made at any time during the 14 day period mentioned in the subsection. Once such an application has been made, it may competently be considered by the second sift judges at any time. There is no incompetency in their considering the application during the 14 day period. There is provision in subsection (4A) for prospective or retrospective extension of the 14 day period on cause shown. There is also an informal practice of withholding cases from the second sift, pending the lodging of additional submissions, if that is requested. In the present case there was neither an application for extension of time under subsection (4A) nor an informal request that the case be withheld from the second sift until further material had been submitted. There was therefore no proper basis for supposing that the application might not immediately be submitted for consideration by the second sift judges. There was no incompetency in its being so submitted and so considered during the currency of the remainder of the 14 day period after the making of the subsection (4) application. The basis on which the petition to the nobile officium has been presented has therefore not been made out.  We need only add that we do not consider that it is open to us, having rejected the challenge to the competency of the way in which the subsection (4) application was processed, nevertheless to grant relief under the nobile officium. We accept that the Edinburgh agents and Ms Ogg proceeded in the genuine belief that the application could not be determined by the second sift judges until the expiry of the 14 day period mentioned in subsection (4). That much is reasonably clear from their correspondence. For the reasons we have set out, however, we consider that that belief was mistaken. We do not consider that that mistake affords grounds for exercise of the nobile officium in the petitioner's favour. In any event, on the account given by Ms Ogg and summarised in paragraph  above, we are not persuaded that the additional material which might have been presented had the petitioner's contention on competency been well founded is more than merely speculative. We have no doubt that the trial judge's reference in his report to a sentence of five years imprisonment is no more than a clerical error.
Result For the reasons which we have set out, the petition is refused.