SUMMARY OF THE
OPINION OF THE COURT
in appeal by
ABDELBASET ALI MOHMED AL MEGRAHI
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
(SCOPE OF THE APPEAL)
__________
The Scottish
Criminal Cases Review Commission has referred to this court the case of
Abdelbaset Ali Mohamed Al Megrahi. The
reference document runs to 790 pages.
In it detailed consideration is given to a wide range of representations
made on behalf of the applicant (the present appellant), as well as to the
Commission's own investigations. Some of
these representations found favour with the Commission; others did not. In making the reference the Commission
identified five reasons which led it to believe that a miscarriage of justice
may have occurred. These reasons are set
out in Chapters 21 to 25 inclusive of the reference document.
The
appellant has, within the time limit specified by the Act of Adjournal, lodged
grounds of appeal. These run to 317 pages. They include (sometimes reformulated) matters
considered by the Commission but not included in its reasons for making the
reference; they also include matters not
raised with or discussed by the Commission.
The Crown
contends that the appellant can not, as of right, require the court to
entertain the full grounds of appeal lodged by him. While it is accepted that the court may, in
the exercise of its discretion, entertain any of the grounds tabled, it is
contended that the appellant is not entitled to have entertained grounds going
beyond the reasons stated by the Commission in their reference. The debate which we heard was concerned with
discussion of that contention.
The court
has heard wide-ranging submissions from the Crown and from the appellant's
counsel. The issue is one of statutory
construction - in particular, the meaning and effect of section 194B(1) of
the Criminal Procedure (Scotland) Act 1995, as amended by the Crime
and Punishment (Scotland) Act 1997. The arguments advanced by the parties and the
court's discussion of them are fully set out in the Opinion of the Court which
is now available. The court's conclusion
is that, for the reasons given, it rejects the statutory construction urged by
the Advocate depute and holds that the appellant is entitled to have his stated
grounds of appeal decided by the court on their respective merits. The mechanisms which the court will adopt for
the purpose of making such an adjudication will require to be considered in due
course. Whether it is desirable, having
regard to among other things the use of judicial resources, that a reference
appellant should have unrestricted scope in what he lays before the court for
adjudication is a matter for Parliament;
but this court must apply the statute as presently framed.
The court
will put the case out for a procedural hearing at which it will consider
parties' proposals for the management of this complex appeal.
|
APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Justice General
Lord Kingarth
Lord Eassie
Lord Wheatley
Lady Paton
|
[2008] HCJAC 58
Appeal No: XC524/07
OPINION OF THE COURT
delivered by THE LORD
JUSTICE GENERAL
in
APPEAL
by
ABDELBASET ALI MOHMED AL MEGRAHI
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
(SCOPE OF THE APPEAL)
_______
|
Act: Scott, Q.C., Gilchrist,
Q.C., Richardson; Taylor & Kelly, Coatbridge
Alt: Clancy, A.D., Q.C.,
Gardiner, D. Ross; Crown Agent
15 October 2008
The legislation
[1] Part VIII of
the Criminal Procedure (Scotland) Act 1995 is concerned with appeals
from solemn proceedings. That Part
includes sections 106, 107 and 110.
These sections, in so far as material for present purposes, provide:
"106(1) Any person convicted on indictment may, with
leave granted in accordance with section 107 of this Act, appeal in
accordance with this Part of this Act, to the High Court -
(a) against such conviction ...".
"107(1) The decision whether to grant leave to appeal
for the purposes of section 106(1) of this Act shall be made by a judge of
the High Court ...".
Section 107 makes further provision in relation to leave
to appeal, including for appeal to the High Court against refusal by the single
judge of such leave and, by subsection (7), for the specification, by the
single judge or by the court, of arguable grounds of appeal (whether or not
they are contained in the appellant's note of appeal).
"107(8) 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."
Section 110(1) provides that within a prescribed
timetable a convicted person "may lodge a written note of appeal with the Clerk
of Justiciary ..." and section 110(3) provides that such note shall "... (b)
contain a full statement of all the grounds of appeal ...".
"110(4) Except by leave of the High
Court on cause shown, it shall not be competent for an appellant to found any
aspect of his appeal on a ground not contained in the note of appeal.
(5) Subsection (4)
above shall not apply as respects any ground of appeal specified as an arguable
ground of appeal by virtue of subsection (7) of section 107 of this
Act."
Part X of the Act makes provision for appeals from
summary proceedings.
[2] Part XA
of the Act (inserted by the Crime and Punishment (Scotland) Act 1997) provides for the
establishment and functions of the Scottish Criminal Cases Review
Commission. That Part, in so far as
material for present purposes, provides:
"194A(1) There shall be established a body corporate
to be known as the Scottish Criminal Cases Review Commission (in this Act
referred to as 'the Commission').
(2) The
Commission shall not be regarded as the servant or agent of the Crown or as
enjoying any status, immunity or privilege of the Crown; and the Commission's property shall not be
regarded as property of, or held on behalf of, the Crown.
(3) The
Commission shall consist of not fewer than three members.
(4) The
members of the Commission shall be appointed by Her Majesty on the
recommendation of the [Scottish Ministers].
(5) At
least one third of the members of the Commission shall be persons who are
legally qualified; and for this purpose
a person is legally qualified if he is an advocate or solicitor of at least ten
years' standing.
(6) At
least two thirds of the members of the Commission shall be persons who appear
to the [Scottish Ministers] to have knowledge or experience of any aspect of
the criminal justice system; and for the
purposes of this subsection the criminal justice system includes, in
particular, the investigation of offences and the treatment of offenders.
...
194B(1) The Commission on the consideration of any
conviction of a person or of the sentence (other than sentence of death) passed
on a person who has been convicted on indictment or complaint may, if they
think fit, at any time, and whether or not an appeal against such conviction or
sentence has previously been heard and determined by the High Court, refer the
whole case to the High Court and 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.
...
(3) This
section shall apply in relation to a finding under section 55(2) and an
order under section 57(2) of this Act as it applies, respectively, in
relation to a conviction and a sentence.
[These subsections are concerned with
a finding, after an examination of facts, that a person who is insane so that
his trial cannot proceed did the act or made the omission constituting the
offence and with the disposal of the case in such circumstances.]
...
194C The
grounds upon which the Commission may refer a case to the High Court are that
they believe -
(a) that a miscarriage of justice may have
occurred; and
(b) that it is in the interests of justice
that a reference should be made.
194D(1) A reference of a conviction, sentence or
finding may be made under section 194B of this Act whether or not an
application has been made by or on behalf of the person to whom it relates.
(2) In
considering whether to make a reference the Commission shall have regard to -
(a) any application or representations made
to the Commission by or on behalf of the person to whom it relates;
(b) any other representations made to the
Commission in relation to it; and
(c) any other matters which appear to the
Commission to be relevant.
(3) In
considering whether to make a reference the Commission may at any time refer to
the High Court for the Court's opinion any point on which they desire the
Court's assistance; and on a reference
under this subsection the High Court shall consider the point referred and
furnish the Commission with their opinion on the point.
(4) Where
the Commission make a reference to the High Court under section 194B of
this Act they shall -
(a) give to the Court a statement of their
reasons for making the reference; and
(b) send a copy of the statement to every
person who appears to them to be likely to be a party to any proceedings on the
appeal arising from the reference.
(5) In
every case in which -
(a) an application has been made by the
Commission by or on behalf of any person for the reference by them of any
conviction, sentence or finding; but
(b) the Commission decide not to make a
reference of the conviction, sentence or finding,
they shall give a statement of the
reasons for their decision to the person who made the application.
...
194F The
Commission may take any steps which they consider appropriate for assisting
them in the exercise of any of their functions and may, in particular -
(a) themselves undertake inquiries and obtain
statements, opinions or reports; or
(b) request the Lord Advocate or any other
person to undertake such inquiries or obtain such statements, opinions and
reports."
Sections 194H and 194I confer on the Commission powers
of investigation, including power to request precognition on oath and power to
obtain documents.
[3] The Act of
Adjournal (Criminal Procedure Rules) 1996 (as amended by the Act of Adjournal
(Criminal Procedure Rules Amendment No.3) (Extradition etc.) 2004) provides by
Rule 19B(1) as follows:
"(1) This
rule applies to a referral by the Scottish Criminal Cases Review Commission to
the High Court in solemn proceedings under section 194B of the Act of
1995.
(2) Within
eight weeks of the date of referral, the person who has been convicted shall
lodge a note of appeal in Form 15.2-B with the Clerk of Justiciary and
subsections (2) to (4) and (6) of section 110 of the Act of 1995 shall
apply to the note.
...
(3) A
note of appeal lodged under the preceding paragraph shall be treated as if
leave to appeal in terms of section 107(1)(a) of the Act of 1995 has been
granted."
The legislative
history
[4] Prior to the
coming into force of Part XA the power to refer a conviction on indictment
to the High Court had been vested in the Secretary of State. That power was first conferred in the
Criminal Appeal (Scotland) Act 1926, which statute also for
the first time conferred a right of appeal on persons convicted in solemn
proceedings. Section 16 of the 1926
Act, in so far as material, provided:
"... the Secretary [later the Secretary
of State] for Scotland on the consideration of any petition for the exercise of
His Majesty's mercy, having reference to the conviction of a person on
indictment or to the sentence (other than sentence of death) passed on a person
who has been so convicted, may, if he thinks fit, at any time, and whether an
appeal or an application for leave to appeal against such conviction or
sentence has or has not previously been heard and determined by the Court,
either -
(a) refer the whole case to the Court and
the case shall then be heard and determined by the Court as in the case of an
appeal under this Act; or
(b) if he desires the assistance of the Court
on any point arising in the case with a view to the determination of the
petition, refer that point to the Court for their opinion thereon, and the Court
shall consider the point so referred and furnish the Secretary for Scotland with their opinion thereon
accordingly."
[Section 1 of the 1926 Act conferred an unqualified
right to appeal against conviction on any ground of appeal which involved a
question of law alone but made the right to appeal on any ground which involved
a question of fact alone or a question of mixed law and fact subject to the
leave of the court or upon the certificate of the trial judge.]
[5] The 1926 Act
was repealed by the Criminal Procedure (Scotland) Act 1975 but that Act, by
sections 228 and 263 respectively, made essentially the same provision for
appeals against conviction in solemn proceedings and for references by the
Secretary of State to the High Court.
[6] The 1975 Act
was amended by the Criminal Justice (Scotland) Act 1980. For section 228 of the 1975 Act there
was substituted a new section 228 which gave an unqualified right to
appeal against conviction in all solemn cases.
Section 263 of the 1975 Act was amended to remove the reference to
an application for leave to appeal and to vary the scope of the Secretary of
State's power of reference. As so
amended, that power was to "refer the whole case to the High Court and the case
shall be heard and determined, subject to any directions the High Court may
make, as if it were an appeal under this Part of this Act."
[7] The power to
refer to the court for an opinion was accordingly removed and the expression
"subject to any directions the High Court may make" introduced for the first
time.
[8] The Criminal
Justice (Scotland) Act 1995 amended section 228
of the 1975 Act to introduce for all cases a requirement for leave to
appeal. In the same year the consolidating
statute, the Criminal Procedure (Scotland) Act 1995, repealed section 228
(as amended) and section 263 of the 1975 Act and re-enacted these
provisions as section 106 and section 124(3) of the consolidating
statute. The Crime and Punishment (Scotland) Act 1997, as well as inserting
Part XA, removed the power of the Secretary of State to refer a case to
the High Court.
[9] The
amendments made in 1980 and in 1997 followed consideration of the
recommendations made respectively by the Thomson Committee (3rd
report) Cmnd. 7005 (1977) ("the Thomson Committee") and the Committee on
Criminal Appeals and Miscarriages of Justice Procedures, June 1996 ("the
Sutherland Committee").
[10] Section 124(2)
of the Criminal Procedure (Scotland) Act 1995 provides:
"Subject to Part XA of this Act
..., every interlocutor and sentence pronounced by the High Court under this Part
of this Act shall be final and conclusive and not subject to review by any
court whatsoever and ... it shall be incompetent to stay or suspend any execution
or diligence issuing from the High Court under this Part of this Act."
That subsection has a legislative history going back to
section 72 of the Criminal Procedure (Scotland) Act 1887.
[11] The history of statutory provisions in England and Wales with respect to appeals and
references concerning convictions on indictment shows certain parallels with
that in Scotland.
The Criminal Appeal Act 1907, by sections 3 and 19, made provision
for rights of appeal and for references by the Secretary of State, which appear
to have been the models for the equivalent provisions in the Criminal Appeal
(Scotland) Act 1926. The (English)
Criminal Appeal Act 1968 by section 17(1), provided, with regard to
references by the Secretary of State, that he might "(a) refer the whole case
to the Court of Appeal and the case shall then be treated for all purposes as
an appeal to the court by that person ...".
That subsection was the subject of interpretation by the House of Lords
in Reg. v Chard [1984] 1 A.C. 279. In 1993
the Royal Commission on Criminal Justice delivered its report ("the Runciman
Report"). Chapter Eleven was
concerned with the correction of miscarriages of justice. In it the recommendation was made that the
Home Secretary's power to refer cases to the Court of Appeal should be removed
and that a new body should be set up to consider alleged miscarriages of
justice, to supervise their investigation if further inquiries were needed and
to refer appropriate cases to the Court of Appeal (para 11). That recommendation, it was stated, was based
on the proposition that the role assigned to the Home Secretary and his
Department under the existing legislation was incompatible with the
constitutional separation of powers as between the courts and the executive
(para 9). That recommendation led
to the establishment by the Criminal Appeal Act 1995 of the (English) Criminal
Cases Review Commission. Section 9 of
that Act made provision for references of cases dealt with on indictment in England and Wales.
Section 14(5) provided:
"Where a reference under any of
sections 9 to 12 is treated as an appeal against any conviction, verdict,
finding or sentence, the appeal may be on any ground relating to the
conviction, verdict, finding or sentence (whether or not the ground is related
to any reason given by the Commission for making the reference)."
Following certain adverse judicial comment section 14
was amended by the Criminal Justice Act 2003, the effect of which is to
restrict an appeal under a reference to grounds which are related to a reason
given by the Commission, with a power in the Court of Appeal to give leave for
an appeal to be on a ground not so related.
The present
proceedings
[12] The appellant
was convicted of murder before a specially constituted panel of the High Court
of Justiciary sitting at Kamp Zeist in the Netherlands.
His appeal against conviction was unsuccessful. He subsequently made an application to the
Scottish Criminal Cases Review Commission ("the Commission"). The Commission, having carried out extensive
investigations over a number of years, has referred the appellant's case to the
High Court under section 194B(1) of the 1995 Act (as amended). The terms of that reference are as follows:
"In the exercise of its functions
under Part XA of the Criminal Procedure (Scotland) Act 1995 ('the Act') as
inserted by section 25 of the Crime and Punishment (Scotland) Act 1997,
the Scottish Criminal Cases Review Commission ('the Commission') has considered
the application of Abdelbaset Ali Mohmed Al Megrahi ('the applicant') for
review of his Conviction.
Having
considered all the material issues, the Commission has decided to refer the
applicant's case to the High Court in terms of section 194B of the 1995
Act."
The reference document runs to 790 pages. In it detailed consideration is given to a
wide range of representations made on behalf of the applicant (the present
appellant), as well as to the Commission's own investigations. Some of these representations found favour
with the Commission; others did
not. In making the reference the
Commission identified five reasons which had led it to believe that a miscarriage
of justice may have occurred. In
Part 3 of the reference (headed "GROUNDS OF REFERRAL") the Commission
identifies these grounds in Chapters 21 to 25 as "Unreasonable verdict"
(Chapter 21), "Undisclosed evidence concerning Focus magazine" (Chapter 22), "Undisclosed evidence concerning
'reward' monies" (Chapter 23), "The date of purchase ..." (Chapter 24) and "Undisclosed
protectively marked documents" (Chapter 25).
[13] The appellant
has, within the time limit specified by the Act of Adjournal, lodged grounds of
appeal. These run to
317 pages. They include (sometimes
reformulated) matters considered by the Commission but not included in its
reasons for making the reference; they
also include matters not raised with or discussed by the Commission.
[14] The Crown
contends that the appellant can not, as of right, require the court to
entertain the full grounds of appeal lodged by him. While it is accepted that the court may, in
the exercise of its discretion, entertain any of the grounds tabled, it is
contended that the appellant is not entitled to have entertained grounds going
beyond the reasons stated by the Commission in their reference. The present debate is concerned with
discussion of that contention.
Submissions for the
Crown
[15] The Advocate
depute presented his contention on two bases - although most of the Crown's
submissions were relevant to both. The
first was that, on a proper construction of Part XA of the 1995 Act, in the
context of the finality provisions of that Act (section 124(2)), the
appellant could only competently bring before this court grounds of appeal
which were centred on or gave expression to the reasons given by the Commission
for referring the case; any additional
grounds could only be admitted in the exercise of the court's discretion. In the course of his oral submissions, the
Advocate depute modified this proposition by substituting for the word
"competently" the words "as of right".
[16] Generally, an
interlocutor refusing an appeal was final and conclusive on all matters which
could have been raised (section 124(2)). That, it was submitted, was the starting point
in determining the scope of an appeal following a reference. Any new matters which a convicted
person wished to raise could be raised only if there was a reference to the
court - formerly by the Secretary of State, and now by the Commission under Part
XA of the 1995 Act (Windsor, Petitioner 1994 JC 41, per Lord Justice Clerk
(Ross) at pages 49 to 50, and Lord Sutherland at pages 53 to 55). The same reasoning applied where an
application for a reference met, as in the present case, with "mixed success". Otherwise, an appellant whose case was
referred on a single ground, however narrow, could without restriction, put
forward an unlimited number of unconnected grounds of appeal. These might include, inter alia, grounds rejected at a first appeal and subsequently
rejected by the Commission for the same or additional reasons, or grounds not
previously advanced on appeal but rejected by the Commission, or grounds
deliberately withheld by the applicant from the Commission. Furthermore, such grounds would be deemed to
have leave to appeal (Rule 19B.1.(3) of the 1996 Act of Adjournal). There was no logic in Parliament creating an
independent review body only to permit an appellant to reverse that body's
decision or to sidestep it altogether. That
would be an "absurd" (in the sense of illogical or anomalous) result, of the
sort which Parliament was presumed not to intend (Bennion - Statutory Interpretation, 4th edition, Part XXI at page 831). If it had been intended that there be a
departure from the finality principle to that extent, Parliament would have
done so expressly, as it had in England (Criminal Appeal Act 1995,
section 14(5) (as originally enacted)).
[17] A careful analysis of all of Part XA of the 1995 Act was
essential for a proper
understanding of section 194B. It
showed, in the round, that the Commission was a body, independent of the Crown,
with inquisitorial powers and transparent procedures. It was not simply a copy of the English
Commission (see Scottish Criminal Cases
Review Commission v HM Advocate 2001
J.C. 36). It had a duty to take
decisions in the exercise of its discretion, according to defined criteria, and
to provide reasons. It was susceptible
to judicial review (M v Scottish Criminal Cases Review Commission 2006
S.C.C.R. 433; Raza v Scottish Criminal
Cases Review Commission 2007 SCCR 403). The assertion that the Commission never
intended to carry out an exhaustive investigation in the present case was
wrong. The Commission had dealt with the
vast majority of the issues raised by the appellant and third parties and its
investigations were extensive. It had
given an indication that it would be willing to accept further submissions from
the appellant within legitimate limits. The
specific examples cited by the appellant did not assist: the Commission did not fail to complete its
investigation into the chapter 25 documents (documents made available to it on
a confidential basis); it simply decided
not to seek an order for their production;
while it did not have time to investigate whether the statement of David
Wright (a witness whose statement became available only at a late stage in its
review) had a bearing on the identification evidence, in context that was a de minimis exception.
[18] The court had
none of these powers or duties, and no locus to concern itself with the
possibility of any miscarriage of justice except in the context of an appeal. Parliament intended that the Commission act as
a "gatekeeper" in respect of alleged miscarriages of justice and that its
decisions have legal effect. It was a
body with powers and duties which complemented and dovetailed with those of the
court (Raza v The Scottish Criminal Cases Review Commission, per Lord Malcolm at para 9; cf. the position in England: R v Criminal Cases Review Commission, ex parte
Pearson [1999] 3 All ER 498 at pages 505C and 523 D - F). The mode of redress beyond a first appeal was
an application to the Commission; if that
did not result in a reference, one could not simply start again by an application
to the nobile officium, even where
the decision was based on the "interests of justice" criterion (Cochrane v HM Advocate 2006 JC 135, per the Lord Justice General, at paras
[9] and [15]). That demonstrated a
respect for the jurisdiction of the Commission and for its decisions. The
principle should also apply where the Commission considered a number of points,
rejecting some while accepting others. A
prospective appellant should raise all allegations of a miscarriage of justice
with the Commission for it to consider.
[19] The appellant's
arguments about the consequences of the Crown's approach were unfounded. The Commission, while not exercising judicial
functions, performed a quasi-judicial role. Where there was no reference, the Commission's
decisions had legal effect: there was no
reason in principle or law why that should not also be so where a reference had
been made on particular points. A
decision not to refer on some points could be judicially reviewed by applying
the same criteria as would be applied in a case with no reference, as in M v S.C.C.R.C.
and Raza v S.C.C.R.C.. The High Court should
exercise its discretion to admit grounds rejected by the Commission by adopting
an approach analogous to that in judicial review. The court could, therefore, have regard to errors
of law, or matters not covered by the terms of the reference. Moreover, as in any appeal, it could, and
usually would, consider all the circumstances of the case. In its reasons the Commission had adopted an
approach consistent with the formulation of issues in a conventional appeal.
[20] The appellant
in his Note of Argument had suggested that the Crown's characterisation of the
role of the Commission was incompatible with Convention rights. But Article 6 did not necessarily
require oral argument, a public hearing or a personal appearance before the
Commission: equality of arms was
maintained because the Crown was not represented before it and the applicant
had the right to make written submissions (cf. Monnell and Morris v United Kingdom
(1987) 10 EHRR 205 at paras 55 to 70; Tierce
and Others v San Marino (2002) 34 EHRR 25). Callaghan v United Kingdom 60 DR 296, cited by the appellant,
concerned the application of Article 6 to an appeal following a reference,
not to proceedings before the Commission per
se. The application of Article 6
depended on the special features of the particular proceedings (Monnell and Morris v United Kingdom at para 56, citing Delcourt v Belgium 1 EHHR 335); the role of the
particular body under scrutiny was important. The special features of the Commission's remit
and its limited role meant that none of the other alleged violations of Article
6 was substantiated. In any event, a
statement of reasons did not in fact involve a final decision on fact and law
akin to a judgement of a criminal charge: the Commission only expressed the belief that
there may have been a miscarriage of justice; the final determination was for the court.
[21] The "grounds"
upon which the Commission could refer a case were that it believed that a
miscarriage of justice may have occurred and it was in the interests of justice
to refer it (section 194C). Where
it was considering a number of separate or cumulative issues, it had to apply
those criteria to each of them or to the set.
It had to formulate notional grounds of appeal, having regard to the
established categories of miscarriage of justice, assess the likelihood of the
court finding merit in the grounds, exercise its own judgment as to whether the
notional grounds might have caused a miscarriage of justice and finally decide
whether it was in the interests of justice to refer the case on any point or
points. In the present case, the
Commission had carried out this exercise. Following a reference, the familiar language
of the statement of reasons could readily be converted into grounds of appeal. Issues rejected by the Commission, or not
raised with it, did not fall within the ambit of its decision that grounds for the
reference existed. Parliament's
intention was that the Commission's decision defined the scope of what,
following upon a reference, an appellant could advance as a matter or
right; its decision was intended to have
legal effect, whether or not a reference was made. The "interests of justice" criterion created a
particular difficulty for the appellant. It was for the Commission alone to consider (Cochrane v HM Advocate; Crombie v Clark 2001 S.L.T. 635, per Lord Prosser at para [4]). It could refuse to refer a case in relation to
a particular ground on the basis of that criterion, but still make a reference
on other grounds (M v Scottish Criminal Cases Review Commission).
Parliament could not have intended that
the appellant should be entitled to present that rejected ground. It would completely negate the effect of the
Commission's decision not to refer in the interests of justice, as the court
could not refuse an appeal on the ground that it was not in the interests of
justice to grant it. Section 194B(1)
of the 1995 Act, properly construed, did not entitle an appellant to appeal on
grounds unrelated to the basis of the reference.
[22] While, in
terms of the section, the Commission referred the "whole case", the word "whole"
was absent when the section spoke of treating the case "as if it were an appeal
under Part VIII". It was inconceivable,
for example, that an application could be made to the Commission only in
respect of sentence and, following a reference of "the whole case", grounds of
appeal against conviction were lodged (cf. section 194D). The scope of an appeal was determined by the
purposive considerations relied on by the Crown and not from the words of the
section. The phrase "whole case" was a
relic of the original distinction between the power to refer the whole case to
the court, as opposed to one aspect of it for the opinion of the court, (1926
Act, section 16). The Commission
now had the power to seek an opinion from the court prior to a reference (section 194D(3)). The phrase continued to serve a useful
purpose in distinguishing between the two powers of referral available. It was set in the context of the other
detailed statutory provisions governing appeals, such as those for grounds of
appeal and for disposal. The use of the
word "whole" made it clear that in an appeal following a reference, as in all
other appeals, these provisions also applied. The word taken in conjunction with the phrase
"subject to any directions" made it clear that the court had a discretion to
admit additional grounds.
[23] In
conventional Part VIII appeals, grounds could never proceed to a full hearing
without obtaining leave to appeal or being allowed on cause shown (sections 107(8)
and section 110(4)). The purpose of the
leave provisions was to weed out frivolous and unmeritorious appeals (Donnell v HM Advocate 2005 S.C.C.R. 728 at para [22]).
Rule 19B.1 gave effect to the provisions of Part XA. It could not limit the effect of the primary
legislation or provide assistance in interpreting it (Renton & Brown - Criminal
Procedure, para 1-04). The rule only
applied to grounds of appeal legitimately included in the note of appeal. There was no need to sift such grounds as the
criteria considered by the Commission were more stringent than the test of
"arguable grounds" (Raza v SCCRC). The court's power (under section 256 of
the 1975 Act) summarily to dismiss frivolous appeals was repealed in 1995 and
not re-enacted. The automatic allowance
of any ground of appeal might lead to a considerable waste of court time and
resources, particularly if the points had already been extensively investigated
by the Commission and rejected by it.
[24] The comparable
English provisions provided some assistance.
Under the Criminal Appeal Act 1995 as originally enacted (Part II, section 14(5))
an appeal following a reference could be on any ground whether or not related
to any reason given by the Commission. The
provisions had since been amended: an appeal following a reference could only
be on a ground related to such reasons, unless, in an exercise of its
discretion leave was given by the Court of Appeal (sections 14(4A) and
(4B)). The English courts had expressed
some surprise at the provision as originally drafted (R v Smith (No. 3) [2003] 1 W.L.R.
1647, per Buxton LJ at
para 25; R v Bamber [2002] EWCA Crim 2912, per Kay
LJ at para 522). It produced what was
regarded as an anomalous and unsatisfactory result. That lent weight to the Crown's contention: in the absence of equally explicit wording, it
appeared that Parliament did not intend the Scottish provisions to have the same
effect as the English provision as originally enacted.
[25] The power of
the court to give "directions", now found in section 194B of the 1995 Act,
was originally introduced by the 1980 Act at the same time as the Secretary of
State's power to refer for an opinion of the court and the leave to appeal
provisions were abolished. An obvious
reason for the inclusion of the phrase was to give the court the power to
control the scope of appeals arising from references. It was unlikely that the phrase was confined
to purely procedural directions: the procedure for solemn appeals was carefully
regulated by primary and secondary legislation.
Moreover, the word "directions" was used in the 1995 Act in a number of
contexts, not all of which were purely procedural (e.g. sections 174(4)
and 275(6)). It could not be interpreted
as a power to make the 1996 Rules. The
opening paragraph of the Act of Adjournal showed that these rules were
promulgated under powers contained in section 305 of the 1995 Act. In the context of Part XA, the power to give
directions should be interpreted as empowering the court to entertain
additional or supplementary points arising from the matters referred. The discretion to decide the scope of the
appeal would, on the Crown's primary argument, be exercised procedurally before
the stage when a reference was treated as an ordinary appeal under Part VIII. This was not dealing with the merits of the
appeal: it recognised that the responsibility for deciding which grounds went
before the court rested primarily with the Commission.
[26] If that was
correct, it was not legitimate for an appellant to lodge grounds of appeal
unrelated to the reasons for a reference. If distinctive new points arose which were
unconnected to those reasons, the appellant should raise them with the
Commission. Whatever its practice might
currently be, the Act permitted it to review a case while an appeal was
pending. When, as here, a case had been
extensively reviewed by the Commission, it was fair and reasonable to require
the appellant to make additional submissions to it while it still had the case.
Following a reference, he should either
wait until the ensuing appeal had finished before going back to the Commission
or ask the court to exercise its discretion and allow the additional grounds. Questions would arise in some appeals as to
whether an appellant was proposing a modification or development of a ground
referred or was raising an entirely new matter. However, the starting point was for the
appellant to demarcate grounds which gave proper expression to the Commission's
statement of reasons, clearly showing the proposed developments or
modifications. Judged by that approach,
the appellant's grounds in the present case were incompetent.
[27] As regards the
test to be employed in exercising this discretionary power, the relevant
factors included respect for the Commission's decisions in relation to matters
it had rejected, and a recognition of its statutory role as the body
responsible for screening the merits of any allegations of miscarriage of
justice. There would be a considerable
onus on the appellant, with the court taking a "judicial review" approach to
the issue and not simply being drawn into re-examination of the merits of the
Commission's decision. It was accepted
that this involved a significantly higher test than that required for leave to
appeal under section 107. Respect
for the Commission's decisions was merited. A number of cases demonstrated the way in
which the Commission had exercised its powers and the thoroughness of its
investigation (cf. Campbell, Steele and
Gray v HM Advocate 2004 S.C.C.R.
220; Gray and O'Rourke v HM Advocate 2005 S.C.C.R. 106; Crombie v Clark; Boncza-Tomaszewski v HM Advocate 2000 J.C. 586; and
Bishop v Procurator Fiscal
at Tain (2005 HCJAC 40, 11 March 2005)). That thoroughness was also demonstrated in the
Commission's consideration of the present case.
[28] If this
analysis was accepted, the Crown's contention proceeded upon the basis that the
Act of Adjournal, insofar as it gave deemed leave, was intra vires, by virtue of section 305(1)(b) of the 1995 Act. However, the deemed grant of leave did not
prevent the court from subsequently exercising its power (for example, under
section 110(4)) to include or exclude other grounds. If, on the other hand, regardless of the
Commission's reasons for a reference, all grounds were deemed to have leave to
appeal, that might give rise to an incompatibility between the rule and the
primary legislation.
[29] There were no decided
cases which analysed the scope of an appeal following a reference from the
Commission. However, there were cases
involving references by the Secretary of State. In Beattie
v HM Advocate 1995 J.C. 33 the
court held that the appellant could advance grounds of appeal additional to
those referred by the Secretary of State (per the Lord Justice General (Hope)
at page 41). It based this decision on
the "whole case" phrase ( in section 263(1) of the 1975 Act). However, the language used was permissive. The court only indicated that it "can" entertain such grounds; one should
guard against the conclusion that it was opening the door to any ground being
put forward. Other passages which might
be prayed in aid by the appellant had to be seen in context (cf. pages 41 to 42).
They suggested only that, if the court
were to entertain them, additional grounds had to be contained in the note of
appeal. That was in accordance with the
appellate procedure at that time. Even
if it were correctly decided, it did not follow that section 194B need be
construed in the same way. The Lord
Justice General said that a reference of the "whole case" by virtue of section 263(1)
of the 1975 Act was "a necessary safeguard to prevent injustice" (at page 41D).
However, the Commission had a much more
developed role in providing that safeguard than did the Secretary of State. The court could now rely on the Commission to
refer cases where this was merited. The
landscape in which section 194B fell to be construed had altered in other
significant ways. The observation that the
court was confined to a consideration of those matters raised by the appellant
in his grounds of appeal (per Lord Justice General at page 41H) no longer
applied: in the course of the sift the
court could now specify arguable grounds not contained in the note of appeal
(section 107(7) of the 1995 Act). The
decision in Beattie could also be
justified as an exercise of discretion by the court to admit grounds following
a reference, even if it had not seen it that way. There had been a close connection between the
ground of appeal referred and the additional grounds. Beattie
had moreover been decided against the provisions of the 1975 Act before its
amendment by the 1980 Act. If, however,
section 194B fell to be construed in exactly the same way as section 263
of the 1975 Act, Beattie was wrongly
decided: too much emphasis had been
placed on the phrase "the whole case".
[30] Other
authorities were of limited assistance in construing section 194B. The reasoning in Reg. v Chard placed a
degree of reliance on the phrase "treated for all purposes", which had never
featured in the Scottish legislation. The critical point was that Beattie and Chard pre-dated the creation of the respective Commissions and the legislative
provisions which governed their powers and duties. Campbell v
HM Advocate 1998 J.C. 130 was concerned with whether, in a reference, the
court could entertain an argument which had been decided in a previous appeal (Lord
Justice Clerk (Cullen) at pages134C to 135G). The decision did not take the issue any
further than Beattie. In Boncza-Tomaszewski v HM Advocate there was no discussion about the proper construction of section 194B. It was apparent from the SCCR report that the
Commission had in fact included the points which formed the basis for the "additional
grounds" in their reasons for making the reference. Otherwise, this case could be regarded as
having involved an exercise of the court's discretion. In Crombie
v Clark the reasons given by the Commission
for the reference were repeated in the bill of suspension which the court
ordained the appellant to lodge. Again,
there was no discussion about the scope of an appeal or the construction of section 194B. The court's suggestion that it was not
necessary or apposite for it to consider the material before the Commission, or
its reasoning, concerned only their approach to the merits of the appeal (para
4 at page 636F to 636J). It was,
however, for the reasons given earlier, both legitimate and necessary for the court
to look at the Commission's statement of reasons in order to determine the
scope of the appeal.
[31] Campbell, Steele and Gray v HM Advocate involved a debate on the
competency of lodging grounds of appeal not featured in a reference, which took
place prior to the appeal hearing. The
court allowed the grounds to be lodged. No
opinion was issued at that stage. In the
subsequent Opinion on the merits, it was confirmed that grounds of appeal not
encompassed by a reference decision could be argued at an appeal, but again permissive
language was used (per the Lord Justice Clerk (Gill) at paras 49 and 80). The Opinion contained no further discussion
of the competency issue or the legitimate scope of the appeal. If, contrary to the Crown's submission, the
case did suggest that the appellant had an unfettered right to advance any
grounds of appeal, then the issue had been wrongly decided. Alternatively, the case could be considered as
an exercise of the court's discretion. That
was supported by the language used in some of the passages of the Lord Justice
Clerk's Opinion (e.g. paras 49 and 80).
[32] The other
authorities cited by the appellant in his note of argument did not deal, in
terms, with the scope of appeal. None
involved additional grounds of appeal in contradiction or addition to the
Commission's reasons on the scale involved in this case. In Harper
v HM Advocate 2005 S.C.C.R. 245
the so-called additional grounds were based upon the reasons for the reference. There was no debate at any stage about the
scope of the appeal. Thomson v HM Advocate (2005 HCJAC 7, 20 January 2005) involved a reference
based on a number of reasons, not just that ultimately abandoned as a ground of
appeal; one should not take from it that
the court would automatically accept grounds of appeal which differed from
those forming the basis for the reference.
[33] The Crown's
second argument was that this court had a discretion to determine the scope of
an appeal arising from a reference. The
court may well always have had that power, but the matter was "confirmed" by
the words "subject to any directions" in section 194B(1). In particular, it had a discretion to admit
grounds which gave expression to matters either considered and rejected by the Commission,
or never considered by it. Even if the
Commission's decision did not have "legal effect", the exercise of that
discretion should, for the reasons outlined earlier in the submissions, be
informed by respect for the decisions of the Commission and a recognition of
its statutory role and powers. The
distinction between the Crown's first ("competency") and second (discretionary)
argument was that under the first the "right" to advance grounds of appeal
extended only as far as the Commission's reasons for making the reference, with
other grounds only included by an exercise of the court's discretion; under the second, the scope of the appeal was
purely a matter for the court's discretion.
In practice there might be little difference between them as regards
their effect, though under the first the court should take a more vigorous and
restrictive approach.
[34] As before, new
prospective grounds of appeal should, in all but exceptional circumstances, be
raised with the Commission. Otherwise,
an appellant would be able to manipulate the system by introducing grounds for
the first time after a reference. By
these means, he could avoid the risk that the Commission would reject the
withheld points. Without scrutiny by the
Commission such assertions of a miscarriage of justice would not carry the
weight of its determination that a miscarriage of justice may have occurred. The court might exercise its discretion to
allow grounds on issues such as disclosure, which had emerged after the
reference. Similarly, the discretion
might be exercised in relation to developments in the law since the reference,
or novel propositions of law which the Commission did not address. However, in relation to the latter, it should
be borne in mind that the Commission had the power to seek guidance from this
court. Where, as in the present appeal,
the novel propositions of law were bound up in complex factual matrices, it
made more sense for the Commission to deal with the matter.
[35] There were
practical reasons for this discretion. Compulsory consideration by the court of
grounds rejected by the Commission would result in a waste of judicial time and
resources in many instances. Even if, as
the appellant contended, the only general rule recognised in the exercise of the
discretion was the predominance of the interests of justice, this could include
the public interest in the due administration of justice (Mickleberg [1992] 59A
Crim R 288, a
decision of the Court of Criminal Appeal in Western Australia at pages 302-303 per Malcolm CJ). That involved considerations beyond simply
maintaining public confidence in the system in the face of repeated allegations
of a miscarriage. Domestic legislatures
could legitimately promote legislation to ensure that the reasonable time requirement
in terms of Article 6 was maintained (Monnell
and Morris v United Kingdom at paras 58 and 59). This consideration favoured giving effect to
decisions taken by the Commission, as well as the Commission dealing with new
allegations. That would inevitably free
up time for the court to consider appeals. In addition, issues could be properly focused
by the Commission for the efficient disposal of subsequent appeals.
[36] Again, the
onus would be on the appellant to explain and justify the inclusion of grounds
outwith the Commission's reasons. The
starting point for this exercise in this case was revised grounds of appeal
which demarcated those based on the Commission's statement of reasons from
grounds not so based.
[37] In the event
that the court upheld the Crown's first argument, it should reject the existing
grounds of appeal. The appellant could
lodge fresh grounds centred on the Commission's reasons for referral and at the
same time seek to have any additional grounds admitted by invoking the court's
discretion under section 194B. If
its second argument was upheld, the court and, if so advised, the appellant
could follow the same course. Alternatively,
the court could invite the appellant to make submissions as to why some or all
of the existing grounds should be allowed into the appeal by the exercise of
its discretion. That might be difficult
given that the grounds of appeal were not framed in any way under reference to
the Commission's statement of reasons. Nevertheless,
however difficult the prospect of applying the discretion might be, that would
be far outweighed by the amount of work that would ultimately be involved in
dealing on their merits with all the matters raised in the grounds of appeal.
Submissions for the
appellant
[38] Miss Scott
adopted the appellant's written submissions.
She observed that, in one sense, the new emphasis in the Crown's
approach "collapsed" its first argument into the second: whether by legal effect or the accordance of
due respect, the Commission's reasons for a reference were, according to the
Crown's contention, determinative of the scope of the appeal. The fundamental problem with both Crown
arguments was that they were posited upon a series of fallacious propositions.
[39] On both arguments,
the construction of the legislation contended for was inconsistent with the legislative
history and with the plain language used by Parliament. The background to the legislation made it
clear that there was no intention to limit the appellant's grounds of appeal
following a reference, other than by the application of Part VIII of the 1995
Act. The Secretary of State's power had
always allowed him to refer the "whole case" back to the High Court (section 16
of the 1926 Act). Similar wording was
used in section 194B of the 1995 Act. The power of the Secretary of State to seek an
opinion from the court about a legal issue was not a referral of a case
properly understood (cf. section 16(b) of the 1926 Act). There was never a "dual power of referral", as
had been contended by the Crown. The
Commission either referred a case or it declined to do so. If it made a reference, the appellant was
placed in an equivalent position to that of any other appellant lodging grounds
of appeal. The authorities interpreting
the Secretary of State's power to refer were clear: the "whole case" was referred
and the appellant was free to introduce grounds of appeal unconnected to the reasons
for that reference (Kilpatrick v HM Advocate 1992 J.C. 120, per Lord
Justice General (Hope) at page 123; Beattie v HM Advocate, per Lord Justice General (Hope) at pages 38 and 41 -
42). The general rule about the finality
of appellate proceedings did not prevent that approach (section 124 of the
1995 Act). The reference procedure was
an exception to that general rule (Campbell v
HM Advocate, per Lord Justice Clerk (Cullen) at page 135 C - G).
[40] The history of
the English provisions also merited consideration. Formerly, the courts held that the reasons for
a reference by the Home Secretary did not restrict an appellant's grounds of
appeal: the "whole case" was being referred (Reg. v Chard, per Lord
Diplock at page 289 and 291, considering the effect of section 17(1)(a) of
the Criminal Appeal Act 1968). Reference
of the "whole case" imported that the case, without restriction, was being put
back into the legal system. In
recommending an independent review body, the Royal Commission on Criminal
Justice had no concerns about the reference procedure permitting additional
grounds to proceed: that was to remain unchanged (Runciman Report - chapter 11,
paras 9 to 16). This was also reflected
in contemporaneous government discussion papers and Parliamentary debates. The main focus was on the separation of powers,
with the only other new feature of the Commission being enhanced powers of
investigation (Criminal Appeals and the
Establishment of A Criminal Cases Review Authority", Home Office Discussion
Paper, 1994, at para 50; Hansard HC
(6 March 1995), vol. 256, cols 23 - 24, per the Secretary of State for the
Home Department (Mr Michael Howard)).
[41] In Scotland, the Sutherland Committee's
recommendations did not support the Crown's characterisation of the role of the
Commission. It stressed the need for
flexibility to consider all relevant matters in considering whether there had
been a miscarriage of justice (Sutherland Report, chapter 2). It did not express concern about a court,
possessed of a reference, considering any matter raised by the appellant,
whether or not centred on a reason for referral given by the Commission. Its overall approach was in conflict with the
suggestion that the court should be restricted in advance about what it could
consider. If there had been such an
intention, one would have expected to find it among the Committee's findings. The provisions establishing the Commission
were essentially introduced, in a fairly basic form, by way of amendment to the
Crime and Punishment (Scotland) Bill in 1997. Essentially, the intention was to copy and
adapt the English provisions, adopting the Sutherland recommendations. Lord McCluskey, responsible for the
introduction of the amendment, subsequently suggested that a reference by the
Commission should, as under the previous system, be treated as an ordinary
appeal (McCluskey and McBride - Criminal
Appeals, 2nd ed., at pages 204-5).
[42] The background
suggested a number of key features of the intended role of the Commission. It was to be detached from the criminal
justice system, taking a less formal and a broader approach to alleged miscarriages
of justice and putting "deserving cases" back into the criminal justice system
to be treated as an appeal. That was
consistent with its composition being weighted towards non-legal members, and
the absence of formal procedure in the statute. The other novel factor was its enhanced powers
of investigation. These powers were not,
as may have been suggested by the Crown, indicative of its decisions being
determinative: there would be a tension between its investigative and its adjudicative
role if that were the case. This was all
reflected in the test for a reference, which was whether a miscarriage of
justice "may" have occurred (section 194C of the 1995 Act). It was also reflected in the practice of the
Commission. It often focussed on
investigation and the uncovering of information. It made an assessment of the reliability of
that information, rather than focussing on the legal rules regarding it. It had expressly stated that its role was "inquisitorial",
and had described itself as a "truth-seeking" body. In deciding whether to make a reference, it
took an "outcome approach", rather than a "legal process approach" (see Harper). The cases involving the judicial review of the
Commission's decision were clear about that role, and also made reference to
the Commission as a "truth-seeking" body (M
v S.C.C.R.C. at para 43 and Raza v S.C.C.R.C. at para 7). That
approach could not be reconciled with the Crown's submissions.
[43] The Crown's
construction of Part XA of the 1995 Act was also contrary to its plain wording,
and inconsistent with the provisions of Part VIII. The Commission could refer
the "whole case" in respect of any conviction, sentence or finding (section 194B(1)
and (3)). That was what determined the
scope of the reference. It did not
support the concept of "mixed success" suggested by the Crown. The Commission had a "binary" function: it referred a case or it did not. If it did, the case was considered, subject to
any directions, as if it were an appeal under Part VIII of the Act. That could only be done by lodging grounds of
appeal. If any further restriction was
intended, one would have expected that to have been made clear in the terms of
the statute. The Commission could refer
a case notwithstanding that it had not received an application, which
contradicted the suggestion that a failure to raise certain matters in an
application should have some form of binding effect (section 194D(1)). The cases which interpreted the "whole case"
provision under the former reference procedure were applicable to the
Commission's decisions: the process was essentially the same. The appellant's position could be equiparated
with that of the ordinary appellant. His
right of appeal was still subject to leave having been granted by the High
Court under section 107. In
references in solemn cases the appellant had to go through the same procedure
as any other. Rule 19.B.1(3) provided
that any grounds of appeal lodged following a reference in a solemn case were
deemed as having had leave granted, not that leave was not required. It was entirely consistent with the
requirements the Act. It provided an
alternative process for the granting of leave.
While generous, it was not ultra
vires. The overall purpose of section
194B was to enable the court to remedy miscarriages of justice and to allow
deserving appellants access to an appeal hearing. This rule enabled that access. A reference appeal was not in the same
position as an ordinary appeal: it had been subject to some scrutiny and was a "deserving
case". If, unusually, the reference
resulted in a note of appeal with no meritorious grounds of appeal, it could be
given "short shrift" in the appeal hearing (for example Thomson v HM Advocate 2005 HCJAC 7). The court always had an inherent
power to regulate its proceedings in that way. It was not reasonable to suggest that a court
would be forced to give protracted consideration to arguments which were
untenable.
[44] Established
law and practice further undermined the Crown's position. It was well established that the scope of an appeal
was not restricted to grounds which gave expression to the reasons given by the
Commission for a reference. There were a
large number of cases which supported the proposition that it was the "whole case"
which was referred back to the court. In
Campbell, Steele and Gray, a case in
which Ms Scott appeared, the court had specifically considered the issue
of competency and held that it was not confined to grounds of appeal related to
the terms of the reference (per the Lord Justice Clerk at para 49). The Crown's contention that this case had been
wrongly decided was unsupported by any kind of authority. Its argument about the use of permissive
language in Beattie had to be
considered in context. Such language was
also used Campbell, but clearly followed a debate on
the competency. The court found that it
was not restricted as a matter of competency. Ms Scott affirmed that there had been no
discussion about the court exercising a discretion. There were a number of examples of cases where
appellants had put forward grounds of appeal unrelated to the reasons for
referral, or rejected by the Commission, without concerns being raised (for
example Baillie v HM Advocate 2007 SCCR 26). That
was also the approach adopted in other jurisdictions with similar provisions
involving the reference of the "whole case", such as Australia (Mickelberg
v R [1989] 167 C.L.R. 259, per
Toohey and Gaudron, JJ at paras 62 - 65). There, the High Court recognised the importance
of considering all relevant matters, given the concern surrounding the
convictions (per Mason, J at para 24). Justice was better served by the court
taking a flexible approach.
[45] The Crown
relied on a number of arguments to support their construction of the statute.
The first concerned the "finality provision" in section 124 of the 1995
Act. However, that provision, as
originally enacted, was introduced to resolve the controversy about whether one
could appeal from the High Court of Justiciary to the House of Lords (section 72
of the 1887 Act - Stair
Memorial Encyclopaedia
vol 6 at para [813]). In any event, section 124
was expressly made subject to Part XA of the 1995 Act. The very nature of the procedures here was a departure from
the common law principle of finality: it
involved putting a case which had been dealt with and disposed of back into the
legal system. Windsor did not support the Crown's argument
in this regard: it said nothing about the grounds of appeal which may be
advanced in appeals following references.
[46] The Crown also
relied on what it termed "purposive considerations": Parliament could not have intended that an
appellant have an unrestricted right of appeal, and the Commission's role
involved limiting and defining the scope of appeal. These considerations were invention, and had
no legal or factual foundation.
[47] No
unrestricted right of appeal had in fact been conferred. Even if it had, the
"absurd" consequences of that result were hypothetical and could be addressed:
it was not unheard of for the court to reconsider grounds rejected at a
previous appeal and find that there had been a miscarriage of justice (Campbell, Steele and Gray; Boncza-Tomaszewski); it was not absurd for the court to
consider a ground "rejected" by the Commission, because that was not the
exercise the Commission was carrying out; it was pejorative to propose that an appellant
could "manipulate" the system by withholding grounds from the Commission and no
clear indication was given about what might be gained from such approach - it
was a "false demon" and incorrectly assumed that the statute imposed no control
over such appeals. In any event, the
examples posited did not apply to the present case.
[48] The Commission
did not define and limit the scope of the consequent appeal. The concept of "mixed success" was fundamental
to the Crown's submissions on the Commission's role, but there was no such
thing. Its invention ignored the terms
of the statute and the legislative background and had no legal foundation. Cochrane
v HM Advocate did not assist the
Crown in establishing this concept: it was
concerned with whether there was a remedy where there was a refusal to refer the
whole case. The Commission's reasons
provided transparency, but did not show which grounds had been accepted and
which rejected. As in the present case,
it might uncover information which was relevant to the question of a reference,
but decide that there was already enough information in the submissions to
refer the case. The independence of the
Commission and its enhanced powers of investigation were not relevant in
determining the Commission's function. Its
independence sought only to ensure the separation of powers. As indicated, the powers of investigation
actually militated against it having a determinative role. The scale of the investigation in the present
case did not change the nature of the exercise being performed by the
Commission. Nor could the Crown's case
be assisted by the statutory amendment in England limiting the scope of appeals after
a reference. If the Commission were to
have the kind of role suggested by the Crown, it would require such statutory
reform. The Act was currently silent on
any restrictions; they could not be read
into its terms.
[49] There were, however, consequences, which
could not have been intended by Parliament, should either of the Crown's
alternative arguments be accepted. In
seeking to restrict the appellant, the Crown necessarily restricted the court. The discretion proposed in both arms of its
argument was constrained by the presumption that the only legitimate grounds of
appeal related to the reasons for the reference, and by the assertion that the court's
exercise was akin to judicial review. That
was a radical departure from the traditional supervisory jurisdiction of the
High Court in the regulation of criminal procedure. It was "master of its own procedure" (Montgomery v HM Advocate 2001 SC (PC) 1 at page 13B, per Lord Hope of Craighead). The strictures imposed upon the proposed
discretion left the court bound by or at least beholden to the Commission's
decision, which would require express provision within the statute. It also conflicted with the nature of the task
that the court was bound to take in hearing and determining an appeal: it should take a broad, flexible approach having
regard to the relevant circumstances of the case and the fairness of procedures
as a whole.
[50] It would also have
consequences for the Commission and for the appellant. If the Commission's decision had some form of
legal effect, that would place it in an adjudicative role. Even the revised position of the Crown left
the Commission with a determinative function, as its decisions could only be
reconsidered on the presumption that they were determinative. If that were so, the Commission's decision
then required to be compliant with Article 6 (Monnell and Morris; Callaghan v United Kingdom). The fact that it was
amenable to judicial review did not suffice if its internal procedures were not
compatible (De Cubber v Belgium (1984) 7 EHRR 236). There were issues which arose regarding the
Commission meeting the Article 6 test. An
obvious example was the impartiality of its decision-making, given its
investigative function. The appellant would, in the Crown's argument, be
required to raise all allegations of a miscarriage of justice with the
Commission. Any new matter emerging was
to be placed back before it. That placed
an onus on him to anticipate all relevant grounds prior to the Commission's
investigation. It could result in the
Commission and the appeal procedures running in sequence or in parallel in
respect of a single case, which might cause practical difficulties. These consequences for the court, the
Commission and the appellant did not fit with the intention of the statute and
presented a very unattractive option.
[51] The need for the
court to have a discretion, in terms of either of the Crown's arguments, was
also predicated upon its erroneous submissions regarding the concept of "mixed
success" and again reflected the "false demon" of potential abuse by an
appellant; these inventions permeated its whole argument. The discretion was said by the Crown to have
been "confirmed" by section 194B. However,
the starting point in that section was that the whole case was referred. It was only then "heard and determined,
subject to any directions the High Court may make, as if it were an appeal
under Part VIII". The sequence of the
words meant that the power to give directions could not have anything to do
with the whole case being referred. Any
direction related to procedural matters in respect of the hearing and
determination of the appeal as if it were an appeal under Part VIII. There was no authority for the proposition
that such directions were intended to allow the court to exercise some control
over the scope of an appeal. The power
to issue such directions was introduced at the time when leave to appeal was
abolished, following the recommendations of the Thomson Committee (Criminal Appeals in Scotland (First Report),
1972, Cmnd 5038). The power to dismiss
frivolous and vexatious appeals was retained at that time (section 256 of
the 1975 Act). It would be extraordinary
if the 1980 legislation, which expressly abolished the leave to appeal
requirement for certain cases, had by these words impliedly introduced a
discretion to limit the scope of reference appeals. The Thomson Committee did not mention that
power, or the need to limit the scope of appeals following a reference. It recommended that such cases continued to be
treated as normal appeals (at para 47). The
discretion proposed would place a reference appellant in a worse position than
an ordinary appellant. That conflicted
with the intention behind section 194B. The purpose of the power of direction in section 194B
was not clear. It might have been
introduced as a "fail-safe", to ensure that any difficult matters could be
dealt with on a case-to-case basis, such as the need to present an appeal by
way of bill of suspension (cf. Crombie v Clark);
or to deal with the special difficulties which could arise in old cases.
[52] There was no justification
for placing any onus on an appellant to explain and justify grounds outwith the
Commission's reasons for referral. Normally,
the onus would be on a party to justify why a matter should not be heard. Moreover, an onus on an accused normally involved
the wider concept of "cause shown" and only arose through express statutory
provisions or subordinate legislation, not directions. An attempt by the Crown to expand that kind of
onus in relation to late lodging of devolution minutes had previously been
unsuccessful. The court expressed
concerns that the approach suggested might result in injustice (HM Advocate v Montgomery 2000 J.C. 111, per Lord Justice General (Rodger of
Earlsferry) at 120). That risk was clearly
apparent in cases such as the present.
[53] The procedural
considerations, should the Crown's contention about the existence of a
discretion be accepted, would also be problematic. The scope of the argument as to whether any
particular ground of appeal gave effect to the reasons of the Commission was
potentially very wide, particularly against the vague criteria for the exercise
of any discretion. The nature of the
argument would involve discussion about the merits of the appeal. That was already seen in cases which had been
submitted to judicial review (M v S.C.C.R.C.). This would mean a return to the problem
identified by the Thomson Committee, where each ground challenged would in
effect need to be argued to the extent it would be in an actual appeal hearing.
The Crown's contention that any new
issues should be submitted to the Commission presented further difficulties,
which were likely to result in further delays. There was also a question about the locus the
Crown would have to participate in the process by which any discretion was
exercised, given that, generally, it had no locus to participate in decisions
regarding leave to appeal. The problems
which might be encountered could be seen
by reference to the Crown's written submissions, which purported to demonstrate
the extent to which the present grounds of appeal met the terms of the
reference: that document contained contradictions, was difficult to follow and
much of its content was disputed by the appellant.
[54] It was not
enough to suggest that the appellant should undertake to demarcate the relevant
grounds according to the Commission's decision: the starting point was that the Commission had
referred the "whole case". Similarly,
the Commission's decision was not drafted in language which could readily be
transformed into such grounds. It was
not clear whether a reason for the reference relating to a recognised category
of appeal could be expanded to encompass other facts and circumstances.
[55] The existence
of these difficulties supported the appellant's contention that Parliament did
not intend the procedure advocated by the Crown. The history of the legislation, following the
Thomson Committee report, suggested that it had intended to move away from a
situation where there might be lengthy debates prior to addressing the
substantive merits of the appeal.
[56] The appellant's final argument was that, even
if the Crown was correct in its statutory interpretation, in the present case
the Commission had, in fact, referred the "whole case" to the High Court. That was obvious from the statement of reasons
and the letter accompanying it. In a
press release of 28 June 2007, the Chief Executive had stated:
"It
is a matter entirely for those representing the Crown and the defence at any
future appeal to decide whether they wish to rely upon the conclusions reached
by the Commission, or develop arguments of their own."
These
representations had guided the way that the appellant had proceeded. In England, where there was now a restriction to
what was referred, it was clear from the statement of reasons when it was not
the whole case which was the subject of the referral (cf. Reg. v Kinsella [2006] E.W.C.A.
Crim 1288 at para 7). That was not the
approach adopted here. The investigation
in the present case was substantial, but not exhaustive. That was exemplified by the decision not to
investigate the issue regarding the witness David Wright. That line of inquiry could not properly be
described as de minimis. Similarly, its decision not itself to seek
disclosure of the chapter 25 documentation suggested that it considered that
this issue could be raised at the subsequent appeal. If that was correct, notwithstanding the
Crown's arguments about the general position, the appellant's whole case had in
fact been referred to the court.
[57] The appellant asked that the court repel
the Crown's objection to the competency and to reject any suggestion that the
court should deal with the appeal other than as a reference of the whole case. The case should proceed as an ordinary appeal.
Reply by the Advocate depute
[58] Despite Ms Scott's involvement in the case
of Campbell, Steele and Gray, when one considered the interlocutors from that case they reflected the
position put forward by the Crown: the court was willing to admit additional
grounds, but could not be taken to have held that any grounds which might be
put forward would, of necessity, be considered.
[59] It was not correct to say that the
appellant's interpretation of section 194B did not conflict with the Act
of Adjournal. The section required that
the case be heard and determined as if it were a Part VIII appeal (which
included a requirement for leave). If
there was no threshold built into section 194B and the Act of Adjournal
was intra vires, a reference
appellant's case was not being dealt with as if it were an appeal under
Part VIII but in a much more favourable way.
[60] When the jurisdiction of the Commission
was extended to summary appeals, it was done by reference to the relevant
appeals procedure in Part X of the 1995 Act.
There was no question of the procedure being left to the general power
of direction. The court in Crombie v Clark had not purported to have been
exercising a power of direction, and should not be taken to have done so.
[61] While the Thomson Committee, in
recommending the abolition of leave, did have in mind the difficulties posed by
arguments of leave merging with arguments about the merits of an appeal, its
recommendation to some extent, if not mainly, stemmed from an opposition to the
principle of leave to appeal (Thomson Committee (Third Report) Cmnd 7005, at
para 2.09).
[62] The Crown's argument that there was a link
between leave to appeal being abolished and the introduction of the "subject to
any direction" phrase was not undermined by reference to section 256 of
the 1975 Act. While that provision still
allowed the court summarily to dispose of frivolous appeals, it was restricted
to appeals on points of law only. Moreover,
that provision was abolished at the same time as leave to appeal was
reintroduced in 1995; it was not there
as an additional control when the Commission was created in 1997. It was not enough to say that grounds of
appeal could be given "short shrift" at the appeal hearing; many grounds required a great deal of work
before that stage was reached. That was
no substitute for control over the scope of an appeal at the outset.
[63] As regards the appellant's reliance on
Australian authority, in that jurisdiction it was the Attorney General, the
state prosecutor, who was responsible for the reference, and the statutory
background, in terms of his powers and duties, was not equivalent. There was no separation of powers, there were
no statutory criteria, there was no duty on the Attorney General to consider
all submissions and there was no equivalent to the "subject to directions"
phrase. The appellant's reliance on the
reference to the public interest in addressing disquiet about convictions was
misplaced. That was why the Commission
had been created. Moreover, at the end of the day, the more prudent approach
was that this court was the place to test allegations of miscarriages of
justice (Beattie, per Lord Justice
General Hope at page 42A).
[64] The criticisms of the Crown's proposed
procedure by reference to adverse consequences were inaccurate and unfair. Parliament had envisaged that an approach
similar to that recommended by the Crown should be carried out in England, where the scope of the appeal was
limited (section 14(4A) and (4B) of the Criminal Appeal Act 1995).
Discussion
[65] The issue before the court is one of
statutory construction- in particular, the meaning and effect of
section 194B(1) of the Criminal Procedure (Scotland) Act 1995, as amended
by the Crime and Punishment (Scotland) Act 1997. The Crown's contention was presented on two
bases. As developed in oral submissions,
the first amounted to the proposition that a reference appellant could not, as
of right, require the court to entertain on its merits a ground of appeal not
centred on or giving expression to a reason given by the Commission for the
reference; the second was that a
reference appellant could not have such a ground of appeal entertained on its
merits unless he persuaded the court to exercise in his favour a discretion to
that effect. In our view, there is no
practical difference between these formulations - other than perhaps a matter
of emphasis. Each posits that a
reference appellant does not have an unqualified right to insist upon such a
ground being adjudicated on its merits but that the court has a power or
discretion to permit or to refuse to permit such adjudication. As to the criterion against which such a
power of discretion should be exercised, this at least was clear on
submission: the threshold for admission
to adjudication was higher, significantly higher, than the test of arguability
which applies to the exercise of granting leave to appeal under
section 107 of the 1995 Act (see Hansard (House of Lords),
16 January 1995, Column 480, Lord Rodger of Earlsferry and Donnell v HM Advocate). It was
submitted that the threshold, at least in relation to the first basis, was, or
was analogous to, that applicable in judicial review processes - that is, a
concept drawn from civil administrative law in which a decision of an
administrative or other body is challenged on the basis of error of law. No other criterion for the exercise of the
power or discretion was formulated by the Advocate depute - though there was a
suggestion that, in relation to the first of the two bases of the Crown's
contention on construction, the test might be stricter than that applicable on
the second basis.
[66] Section 194B appears in Part XA
of the 1995 Act, a Part introduced into that statute by the 1997 Act. The section must be construed not only
according to its own terms but also in the context of the other provisions of
Part XA. Regard also requires to be
had, in so far as material, to the remainder of the statute. Some assistance in ascertaining Parliamentary
intention may be derived from extra-legislative material and from the
legislative history of references to the High Court.
[67] One thing at least is clear about section 194B(1): the case is ordained "to be heard and
determined ... as if it were an appeal under Part VIII or, as the case may
be, Part X of this Act".
Parts VIII and X respectively provide for the procedure to be
followed in "ordinary" solemn and summary appeals to the High Court. Accordingly, section 194B(1) expressly
applies to reference appeals the procedural provisions which apply in terms of Part VIII
or, as the case may be, of Part X.
These provisions render (see sections 106(1) and 175(2) respectively)
the right to appeal subject to leave being granted in accordance with
procedures set out in other sections.
But it is not those leave provisions which the Crown seeks to invoke for
present purposes. These, if applicable
here, would bring into play only a lower, or significantly lower, threshold
than the Crown contends for. The Crown
relies on the phrase "subject to any directions the High Court may make". That phrase, it is contended, is apt to
embrace and does confer a power or discretion of the kind contended for.
[68] It may be noted at the outset that
section 194B(1) does not expressly provide for such a power or
discretion. Nor does it do so by
applying by reference any other provisions of the 1995 Act; that Act nowhere expressly provides for such
a power or discretion. Rather, the
statute provides for leave to appeal on a different basis than that contended
for by the Crown. The basis is
arguability. If leave is granted on that basis (or by duly authorised provision
is treated as having been so granted), an appellant has thereafter an
unqualified right to have each of his arguable grounds of appeal entertained on
its merits. Prima facie, if it had been intended that a different or additional
threshold required to be crossed by a reference appellant, one would have
expected that to have been made clear by express provision. There is certainly no express provision
equivalent to the restriction imposed in section 14 of the Criminal Appeal
Act 1995, as amended in 2003. Nor is
there anything in the Sutherland Report (upon the basis of which Part XA
was introduced) or in the Parliamentary debates on the proposal which supports
the construction urged by the Crown.
[69] It will be necessary in due course to
return to the phrase "subject to any directions the High Court may make"
(including the legislative history of that phrase) but particular emphasis is
placed by the Crown on the nature of the body (the Scottish Criminal Cases
Review Commission) established by Part XA.
The background to that establishment is well-known. Following disquiet in England and Wales over certain convictions obtained
there, a Royal Commission on Criminal Justice was set up under the chairmanship
of Viscount Runciman of Doxford. That
Commission reported in July 1993 (Cmnd. 2263).
It recommended that a new body, therein referred to as "the Authority",
be set up to consider alleged miscarriages of justice, to supervise their
investigation if further enquiries were needed, and to refer appropriate cases
to the Court of Appeal (Chapter 11, para 11). Part of the reasoning was the proposition
that the role assigned to the Home Secretary and his Department under existing
legislation was incompatible with the constitutional separation of powers as
between the courts and the executive (Chapter 11, para 9). The Criminal Cases Review Commission was
subsequently established by the Criminal Appeal Act 1995. A Committee under the chairmanship of the
then Sir Stewart Sutherland (now Lord Sutherland of Houndwood) was established
for Scotland in 1994, its report being published
in 1996. Having considered a number of
options, it recommended that the Secretary of State (for Scotland) should be
removed from the reference process altogether and that a new body, completely
independent of the executive, be established with powers to consider alleged
miscarriages of justice and to refer deserving cases to the Appeal Court (that
is, the High Court acting in its appellate capacity) for determination (Report,
para 5.50). Previously the Committee
had identified (at para 5.30) the criteria for any system of considering
miscarriages of justice as -
|
"
|
·
it should be equipped and willing to consider cases impartially,
thoroughly and fairly;
·
it should be able to act as speedily as is consistent with the above;
·
the investigatory procedures available to it should be fully
satisfactory;
·
its procedures should be transparent and comprehensible to petitioners;
·
there should be sufficient disclosure to enable the petitioner properly
to present his case;
·
decisions should be communicated clearly and with reasons;
·
the lines of accountability should be clear;
·
it should command public confidence:
justice should not only be done, but be seen to be done."
|
The
government of the day was not initially persuaded that it was necessary to
alter the existing arrangements for reference but the issue was pressed in the
House of Lords (particularly by Lord McCluskey of Churchill) during discussion
of the Crime and Punishment (Scotland) Bill, with consequential amendments
which resulted in the insertion of Part XA into the 1995 Act. It is apparent that the terms of the new
legislation are drawn to some extent from those enacted for England and Wales and Northern Ireland in the Criminal Appeal Act
1995; but there are important
differences. One such difference is that
section 14(5) of that statute (as originally enacted) provided that where
a reference is made "the appeal may be on any ground relating to the
conviction, verdict, finding or sentence (whether or not the ground is related
to any reason given by the Commission for making the reference)." No equivalent express provision is made in
the Scottish legislation.
Section 14(5), however, is likely to have owed something to, and is
certainly consistent with, the approach to the previous reference provisions
under section 17 of the (English) Criminal Appeal Act 1968 adopted by the
House of Lords in Reg. v Chard, which approach was to read, from
language in many respects similar to that used in section 194B, no limitation
upon the grounds of appeal an appellant might found on following a reference by
the Secretary of State.
[70] The salient features of Part XA
(other than section 194B) are that the Commission is a body independent of
government, consisting (to at least one third) of persons with legal
qualifications and (to at least two thirds) of persons with knowledge or
experience of any aspect of the criminal justice system
(section 194A); that the grounds
upon which the Commission may refer a case to the High Court are that it
believes (a) that a miscarriage of justice may have occurred and (b) that it is
in the interests of justice that a reference should be made (a cumulative test)
(section 194C); that a reference
may be made whether or not an application has been made by or on behalf of the
person to whom it relates (section 194D(1)); that in considering whether to make a
reference the Commission must have regard among other things to any application
or representations made to it (section 194D(2)); that the Commission in considering whether to
make a reference may at any time refer to the High Court for the court's
opinion any point on which it desires the court's assistance
(section 194D(3)); that where the
Commission makes a reference under section 194B, it shall give to the
court a statement of its reasons for making the reference (with a copy of such
statement to interested parties) (section 194D(4)); that where an application having been made
the Commission decides not to make a reference, it shall give a statement of its
reasons for its decision to the person who made the application
(section 194D(5)); that the
Commission has extensive powers of investigation (section 194F); that it has power to request precognition on
oath (section 194H); and that it
has power to obtain documents etc (section 194I).
[71] The independence of the Commission, both
from the executive and from the court, is clear. It is vested with extensive powers to allow
it to make a fully informed decision in every case as to whether or not to make
a reference to the High Court. When it
reaches a decision, whether that is to refer the case to the High Court or not
so to refer it, it has an obligation to give a statement of its reasons for
that decision. Such a requirement is in
the interests of transparency. While the
decision to refer or not to refer is one for the Commission to make, that
decision requires to be lawful; any
unlawfulness is open to challenge by an interested party in the Court of
Session by way of judicial review. The
grounds upon which it may make a reference are that the Commission believes the
two matters referred to in section 194C.
These grounds are clearly different in kind from any grounds of appeal
which a reference appellant might include in his note of appeal. There is nothing, in our view, in the express
powers and functions of the Commission as contained in Part XA, other than
section 194B, which points to there being a restriction on what a
reference appellant may include in his note of appeal.
[72] The Advocate depute spoke of the
Commission's decisions having "legal effect".
That is true in the sense that the Commission reaches a decision with
certain legal consequences. A decision
to refer under section 194B will make it possible for the reference
appellant to present an appeal against his conviction or against sentence or
against a finding under section 55(2) of the 1995 Act following an examination
of facts, as the case may be. A decision
not to make such a reference will preclude the presentation of such an appeal (Cochrane v HM Advocate). The decision
either way requires to be lawful; and
the reasons for the decision may require to be examined for the purpose of
determining whether or not the decision was lawful. But it does not follow, in our view, from
these considerations that where a reference under section 194B(1) has been
made, the reference appellant is constrained in framing his grounds of appeal
to matters centred on or giving expression to the Commission's reasons for
making the reference.
[73] The same conclusion, in our opinion,
follows from consideration of the "respect" due to the Commission by the
court. The Commission is a highly
respected body, whose diligence and insight have, as the record shows, led to
the remedying of a number of miscarriages of justice in Scotland.
But undoubted respect for the work of the Commission (which may result
in the fruits of its enquiries being of assistance ultimately in determining
grounds of appeal advanced by a reference appellant) does not mean that the
range of matters which such an appellant may put before the court for its
adjudication is constrained by the Commission's views.
[74] Reliance was also placed by the Advocate
depute on section 124(2) of the 1995 Act, which provides that "every
interlocutor and sentence pronounced by the High Court [under Part VIII]
shall be final and conclusive and not subject to review by any court whatsoever
...". The origin of that provision is
well-known. It gives statutory force
(first contained in section 72 of the Criminal Procedure (Scotland) Act 1887)
to the rule confirmed in Mackintosh v
Lord Advocate (1876) 3 R (HL) 34
that no appeal lies from an order or sentence of the High Court of
Justiciary. Since 1926 that rule has
been subject to provisions for statutory appeals but the provision does not, in
our view, assist the Crown's argument in this case. Section 124(2) is made expressly subject
to Part XA of the 1995 Act. The
appellant does not seek to appeal otherwise than in the capacity of a person
whose case has been referred to the court under Part XA. It is to that Part that one must look to see
what restrictions, if any, are put upon the scope of the issues which he can
put before the court for its adjudication.
In our view the language used by Lord Sutherland in Windsor, Petitioner (where the Secretary of State had declined to
make a reference) does not import that, where there has been a reference,
grounds of appeal not reflective of the terms of that reference are struck at
by the finality provisions.
[75] Central to the Advocate depute's
submission was that the appellant's application to the Commission had been of
"mixed success": some of the contentions
advanced to it had been regarded as of sufficient substance to warrant a reference
to the court, others had not. It would
be absurd, it was contended, to suppose that Parliament, having set up an
independent body to review possible miscarriages of justice, had intended that alleged
bases for such a miscarriage which had been considered but rejected by the
Commission (or which it had not even been asked to consider) should be
entertained by the court at the unrestricted insistence of a reference
appellant. But we are not persuaded that
such an outcome is so absurd that it must have been considered and rejected by
Parliament. The English provision as
originally enacted (Criminal Appeal Act 1995 section 14(5)) expressly
envisaged a reference appeal being made on a ground or grounds not related to
any reason given by the Commission. While
an unrestricted scope of appeal following a reference may have undesirable
consequences (and Parliament, by in 2003 amending that statute, appears then to
have thought so), it cannot be said that to construe a statutory provision, not
itself making express provision one way or the other, in such a way as to
permit an applicant who has succeeded in securing a reference to advance to the
court grounds of appeal unrestrictively, would be to attribute absurdity to the
legislation. The terms in which Parliament
has chosen to express itself must accordingly be construed according to the
language in fact used in the legislation in its historical context.
[76] Section 194B(1) empowers the
Commission to refer "the whole case" to the High Court. While the adjective "whole" might tend to
suggest that the reference was of all that might be encompassed in the case, we
are reluctant to place much significance on that adjective. That is so notwithstanding the reliance
placed upon it in the context of the English legislation by Lord Diplock in Reg. v Chard. The expression
appeared in the 1926 legislation (itself modelled on the English Act of 1907)
where within the same section (section 16) the Secretary of State was
empowered alternatively to refer the whole case or to refer a point on which he
sought an opinion of the court. The
reference to the "whole" case may thus be intended to do no more than to
distinguish a general reference from a reference on a particular point. While under the 1995 Act (as amended) the power
to refer on a particular point is relegated to a separate provision
(section 194D(3)), we are not persuaded that the adjective "whole" is of
material significance on the issue of the legitimate scope of an appeal
following a reference. However, in so
far as it is of assistance, it tends to support an unrestricted rather than a
restricted scope.
[77] The critical phrase for interpretation is
what follows: "and 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 ... of this Act." Although the adjective "whole" is not
repeated in that phrase it is, in so far as it may be material, carried
implicitly from the immediately preceding clause. This mandatory provision requires the case to
be heard and determined, subject to directions, as if it were an "ordinary"
appeal. An ordinary appellant, who has
given under section 109 of the Act due intimation of his intention to
appeal, is entitled to lodge a written note of appeal (section 110(1)(a)). There is no restriction on what may be
included as grounds of appeal in that note.
The right of appeal conferred by section 106 is subject, of course,
to leave to appeal having first been granted.
But that leave is for the purposes of the present argument irrelevant,
since it is not statutory leave under section 107 (based on arguability)
for which the Crown here contends. Such
leave is, by virtue of Rule 19B.1.(3) of the Act of Adjournal (Criminal
Procedure Rules) 1996 treated as having been given in respect of a note of appeal
lodged further to a reference. (We do
not consider that it can be said that this rule was other than competently
made; indeed, it is arguable that even
without this rule the mandatory language of section 194B(1) has the effect
that the court is obliged to consider grounds contained in a note of appeal
lodged in further of a reference whether or not leave under section 107
has been granted or treated as granted.)
[78] So, the limitation for which the Crown
contends must depend on there falling within the scope of the phrase "subject
to any directions the High Court may make" a power to refuse to entertain on
their merits grounds of appeal contained in a reference appellant's note of
appeal and, in effect, a duty to exercise that power of refusal unless the
relevant ground of appeal is either centred on or gives expression to at least
one of the reasons given by the Commission or, if it does not, that the
non-inclusion of that ground in these reasons is vitiated by error of law on
the part of the Commission. It is plain
that no power of that kind or its related duty is expressly contained in the
statutory phrase. While the scope of the
directions which are contemplated by the subsection may be uncertain, it would
be remarkable, given the legislative history of the phrase, if it was intended
to confer the power contended for. The
phrase first appeared in the relevant legislation in 1980 when by
paragraph 22 of schedule 2 to the Criminal Justice (Scotland) Act of that year section 263
of the Criminal Procedure (Scotland) Act 1975 was reformulated in a way
which included it. But one of the
purposes of the 1980 legislation was, in furtherance of proposals made by the
Thomson Committee, to abolish the leave to appeal provisions which, for some
ordinary appeals, were imposed by the 1926 Act and retained in the 1975
Act. It would be remarkable if
Parliament had, without making express provision to that effect, intended to
introduce a leave requirement into reference appeals while otherwise abolishing
such a requirement. When Parliament came
in 1997 to use the same language on making provision for reference by the
Commission, it cannot readily be supposed that it intended so obliquely to
introduce a requirement for leave of the kind contended for. On a fair reading of the statute in context
Parliament had, in our view, no such intention.
Moreover, the Crown's argument sits ill with the language used in the
statute. While "directions" may in some
statutory contexts go beyond the purely procedural, it would be stretching
unduly the sense of that term to hold that it meant or included an act of
refusing to entertain a proffered ground of appeal.
[79] There is no judicial authority directly in
point. It is clear that in Beattie v HM Advocate (a reference decided under the 1975 Act) the court held
that it was competent for the court to entertain grounds of appeal which were
not given by the Secretary of State as reasons for his reference. The judgment (see Lord Justice General Hope
at page 41) is expressed in terms that the court is able to examine any
alleged miscarriage of justice contained in the ground of appeal, rather than
that it is bound to do so. The same is
true of cases on references by the Commission (Boncza-Thomaszewksi v HM
Advocate; Campbell, Steele and Gray v HM
Advocate). Although Miss Scott
advised us that in the last mentioned case the issue of the competency of
entertaining grounds not reflected by the Commission's reasons for the
reference was expressly argued and decided (in favour of the competency of
doing so), that determination does not go so far as to hold that the court was
bound to entertain the grounds. It can,
however, be said that there was nothing in the decided cases (whether
references by the Secretary of State or by the Commission) to suggest that, to
have entertained by the court a stated ground of appeal not reflective of the
reasons for the reference, a reference appellant must pass across the sort of
threshold contended for by the Crown in this case. Rather, the language used by Lord Justice
General Hope in Kilpatrick v HM Advocate at page 123 suggests
that the court did not see any necessity to grant permission for fresh grounds
of appeal to be entertained (see also Harper
v HM Advocate).
[80] For these reasons we reject the statutory
construction urged by the Advocate depute and hold that the appellant is
entitled to have his stated grounds of appeal decided by the court on their
respective merits. The mechanisms which
the court will adopt for the purpose of making such an adjudication will
require to be considered in due course.
Whether it is desirable, having regard to among other things the use of
judicial resources, that a reference appellant should have unrestricted scope
in what he lays before the court for adjudication is a matter for
Parliament; but we must apply the
statute as presently framed.
[81] We should add that Miss Scott, as her
final argument, contended that the Commission had in fact referred to the court
the "whole case" (inclusive of any new or re-stated grounds). But, whatever the Commission or its officers
may have contemplated as the possible scope of the appeal following the
reference, if the statute on a sound construction puts limitations on the scope
of the appeal which may be argued, the Commission's understanding of what might
occur is irrelevant.
[82] Certain submissions were made to us as to
the consistency of the Crown's contention with the requirements of
article 6 of the European Convention;
but we find it unnecessary to express any opinion on these submissions.
[83] We shall put the case out for a procedural
hearing at which we shall consider parties' proposals for the management of
this appeal.
