Scottish High Court of Justiciary Decisons

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Cite as: 2006 JC 178, [2006] HCJAC 35, 2006 SCCR 272, [2006] ScotHC HCJAC_35, 2006 GWD 14-262, 2006 SLT 468

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Osborne

Lord Johnston

Lord Dawson

[2006] HCJAC 35

Appeal No: XC75/06

OPINION OF THE COURT

delivered by LORD OSBORNE

AN APPEAL AGAINST REFUSAL OF

EXTENSION OF TIME

at the instance of

WILLIAM McKENNA BECK

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Shead; Brodies

Respondent: A, Mackay, A.D. Crown Agent

31 March 2006

The background

[1] The appellant, following a trial in the High Court of Justiciary, was convicted on 30 March 1982 on two charges, the first being one of theft, the second being one of assault involving the use of hammers as weapons and robbery of certain property, including £21,000 of money. He was sentenced to a period of six years imprisonment. Thereafter, an intimation of intention to appeal was given on the appellant's behalf. There followed an extension of time for the lodging of a note of appeal. A note of appeal was then lodged on 27 May 1982 by the appellant himself. It contained two brief grounds of appeal. Subsequently the appellant elaborated these grounds of appeal in further documents which were submitted to the Clerk of Justiciary, dated 24 June 1982, 17 July 1982, 9 August 1982 and 19 August 1982. All of these documents were prepared by the appellant himself, since he did not have the benefit of legal aid. It has not been made clear to us exactly what transpired when the appellant's appeal was heard by the Criminal Appeal Court, but, on 7 October 1982, the court refused the appellant's appeal against conviction. We are not aware whether any opinion was issued in association with that decision; suffice it to say that no opinion is available to us. Following the refusal of the appellant's appeal against conviction, he thereafter served his sentence. At some date, which was not specified, the appellant made an application to the Scottish Criminal Cases Review Commission, with a view to having his case referred to the Criminal Appeal Court for reconsideration. We were informed that that Commission did not make such a referral.

[2 ] By letter dated 28 November 2005 from solicitors acting on behalf of the appellant what bore to be an application for extension of time within which to lodge a note of appeal against conviction under section 111(2) of the Criminal Procedure (Scotland) Act 1995 was made. In that application the background of the matter was set forth. Reference was made to the former appeal. Thereafter it was said:

"It appears that the appeal was refused but it may have been the position that the court simply refused leave to argue any of the grounds of appeal. He was denied legal aid and was as a consequence unrepresented. By contemporary standards at least he was denied the fair hearing to which he was entitled. He now seeks an opportunity to challenge his conviction but on grounds which were, so far as can be understood with one exception, not presented to the court at the original appeal."

Thereafter, the application set forth a number of criticisms of the original proceedings at the trial, which might be characterised as, in effect, grounds of appeal. The document concludes in this way:

"The applicant has always maintained his innocence. He is anxious to have the opportunity to persuade your Lordships that there has been a miscarriage of justice. Given the nature of the issues it is submitted that it is in the interests of justice that the time period be extended to allow the necessary grounds of appeal to be drafted and lodged."

[3 ] When the appellant's application for extension of time was submitted, in accordance with section 103(5)(a) of the 1995 Act, it was placed before a single judge of the High Court of Justiciary, who refused the application as incompetent, in view of the interlocutor of the Criminal Appeal Court dated 7 October 1982, refusing the appellant's appeal against conviction. Thereafter the appellant expressed himself to be dissatisfied with that decision. Accordingly, in accordance with section 105 of the 1995 Act, the application was submitted to this court and was the subject of a hearing before us on 14 March 2006. Prior to that hearing, there were submitted what were described as grounds of appeal against the decision of the single judge. They were in the following terms:

"It is respectfully submitted that the court erred in refusing to grant the application for an extension. The appellant maintains that he has been wrongfully convicted. He has, it is submitted, obviously arguable grounds of appeal. Properly understood there is no statutory bar to the remedy sought. He has tried to persuade the Scottish Criminal Cases Review Commission to refer his case to your Lordship's court, but the Commission had declined to do so. The reasons given are not sustainable.

It appears that the Crown failed to disclose material information to the defence at the time of the trial which they were duty bound to do. That information bore on the critical issue of identification evidence. Their failure to do so deprived the appellant of the fair trial to which he was entitled. It does not appear to have been a matter which was raised by the advocate depute at the time of the appeal hearing.

The appellant appeared unrepresented at the hearing of his appeal. There was a duty on the court to ensure that he had a fair hearing and yet it seems that the court did not raise the issue of the apparent misdirection in the judge's charge. If it was an arguable ground of appeal (or at least stateable) then it was the court's duty to raise it ex propiu (sic) motu. The apparent failure to do so rendered the hearing of the appeal unfair. That being so the interlocutor then pronounced would require to be set aside.

In any event if the court acted or failed to act in a way which denied the appellant the fair hearing to which he was entitled then only your Lordship's court can offer the necessary redress by now allowing the grounds of appeal to be presented so that the issues can be properly argued on the appellant's behalf.

In the circumstances your Lordships are invited to allow the appeal or in any event extend the time limit for lodging grounds of appeal."

Submissions

[4 ] When this matter came before us, counsel for the appellant entered upon a wide-ranging consideration of a number of aspects of the appellant's situation. He drew our attention to the unsuccessful application to the Scottish Criminal Cases Review Commission for a referral to the court. In that connection, reference was made to Cochrane v H.M. Advocate (unreported) 7 March 2006. He also laid emphasis upon the fact that, so it appeared, the appellant did not have the benefit of legal aid or legal representation at the time of his appeal in 1982. Reference was made to Bonar and Maxwell v United Kingdom 1995 S.C.C.R. 1, in which the European Court of Human Rights indicated that legal representation was necessary to achieve equality of arms and hence a fair trial in terms of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Looking back, it was submitted that the appeal hearing in 1982 was unfair. There was also considerable discussion of the possible impact of section 124(2) of the 1995 Act upon the appellant's position. In that connection counsel referred to a number of cases in which the court had exercised the nobile officium in such circumstances as to show that that enactment had to be seen as qualified by the power of the court, in the exercise of its nobile officium, to remedy injustices. In that connection reliance was placed upon Hoekstra 2000 S.C.C.R. 367. In the course of argument before us consideration was also given to the effect of sections 6(1), 7(1) and 22(4) of the Human Rights Act 1998. Counsel acknowledged that the issue of the retrospective operation of the provisions of the 1998 Act was a matter of great complexity and uncertainty. Reliance was also placed on Higson and Docherty v H.M. Advocate 2004 S.C.C.R. 63 and Holland and Sinclair v H.M. Advocate 2005 S.C.C.R. (P.C.) 417. Counsel for the appellant indicated that, if the court were to reach the conclusion that the present application under section 111(2) of the 1995 Act was incompetent, it should treat the application as one to the nobile officium of the court.

[5 ] The Advocate depute submitted that section 111(2) of the 1995 Act provided a power which could be used to extend the statutory period of time available for lodging a note of appeal. However, that enactment did not enable an individual who had already appealed and had his appeal determined to apply subsequently for an opportunity to lodge a second note of appeal. The only circumstances in which there might be, as it were, a second appeal, were those described in section 194B(1) of the 1995 Act which dealt with referrals of a case by the Scottish Criminal Cases Review Commission to the court. In such a situation, where a referral was made, that enactment provided that:

" ... the case shall be heard and determined subject to any directions the High Court may make, as if it were an appeal under Part VIII or, as the case may be, Part X of this Act."

The decision

[6 ] It has to be borne in mind that what we are considering in this case is what bears to be an application for extension of time under section 111(2) of the 1995 Act and nothing else. Section 111(2) of the 1995 Act is in these terms:

"Any period mentioned in section 109(1) or 110(1)(a) of this Act may be extended at any time by the High Court in respect of any convicted person; and an application for such extension may be made under this subsection and shall be in as nearly as may be the form prescribed by the Act of Adjournal."

Section 109(1), of course, deals with persons desiring to appeal under section 106(1)(a) or (f) and imposes a requirement to lodge with the Clerk of Justiciary within two weeks of the final determination of the proceedings written intimation of intention to appeal. Section 110(1)(a) creates a requirement that a convicted person may lodge a written note of appeal with the Clerk of Justiciary within eight weeks of lodging intimation of intention to appeal, subject to certain qualifications which have no application to the present case. The purpose of section 111(2) is plainly to give intending appellants the opportunity to avoid the consequences of failure to comply with the time limits to which we have referred, in appropriate cases. The premise upon which section 111(2) operates is that there has not been an appeal, but that a convicted person desires that there should be. In our opinion, section 111(2) was never intended by the legislators to afford to a person who has in fact appealed against conviction and has had that appeal determined upon certain grounds the opportunity again to initiate appeal proceedings, either upon those grounds, or upon some other grounds. While section 111(2) does not contain any express qualification to that effect, in our view such a qualification is to be inferred from the context of that enactment, in particular, the other provisions regarding appeals in solemn proceedings to be found in Part VIII of the 1995 Act. Nothing said to us by counsel for the appellant persuades us that section 111(2) can be used in the way in which the appellant seeks to use it. Accordingly, we conclude that the refusal of the appellant's application for extension of time as incompetent by the single judge to whom it was originally referred was correct. Whatever other remedies, if any, may be available to the appellant, he cannot by the means which he has chosen properly initiate fresh appeal proceedings after his original appeal has been determined.

[7 ] At one stage in the discussion before us it was faintly suggested that we should treat the present application for an extension of time within which to lodge a note of appeal against conviction as an application to the nobile officium of the court. We are not prepared to take that course. If the appellant wishes to seek to invoke the nobile officium of the court, having regard to the peculiar circumstances of this case and, in particular, to the fact that the appellant has already had an appeal determined by the court and has made an application to the Scottish Criminal Cases Review Commission for a referral of his conviction to the court, without success, we consider that any application to the nobile officium would require to be supported by relevant and specific averments designed to indicate how it is claimed that that power could properly be utilised in the circumstances of the case.

[8 ] Accordingly, in all the circumstances, we refuse the appellant's application under section 111(2) of the 1995 Act as incompetent.