Act: G Jackson, QC; C M Mitchell; Liam O'Donnell & Co, Glasgow

Alt: Ferguson, QC, AD; Crown Agent

6 March 2009

Background Circumstances
[1] The appellant was indicted, along with five other persons, on an indictment containing six charges, all brought under section 4(3)(b) of the Misuse of Drugs Act 1971. The appellant pled not guilty and went to trial at Glasgow High Court between 27 August and 9 September 2004. In due course, the appellant was convicted on charges (1), (3), (4) and (5). In each case the libel had been restricted to a period between 12 November and 3 December 2003. Each of these charges libelled a contravention of section 4(3)(b) of the 1971 Act at specified locations. Charge (1) related to cocaine, charge (3) to nitrazepam, charge (4) to cannabis resin and charge (5) to ecstasy.

[2] In a Note of Appeal under section 109(1) of the Criminal Procedure (Scotland) Act 1995, the appellant set forth five grounds of appeal against conviction and a ground of appeal against sentence. By an interlocutor of this court, dated 23 February 2007, the court allowed an additional Note of Appeal to be received containing a single further ground of appeal. There followed before this court a hearing of the appellant's appeal against conviction. At the outset of that hearing, it was indicated that it was not intended to argue grounds (1) and (4) in the original Note of Appeal. The hearing of the appeal ran over two days, 1 and 2 July 2008. At the conclusion of the hearing the court made avizandum. On 7 November 2008 this court refused the appellant's appeal against conviction. The appeal against sentence was continued to a date to be afterwards fixed. The submissions made at the appeal and the reasons given by the court for its refusal are set forth in the Opinion of the Court, dated 7 November 2008.

[3] At no time prior to the decision of the court on 7 November 2008 to refuse the appellant's appeal against conviction was any notice of intention to raise a devolution issue ever given, in terms of rule 40.2 of the Act of Adjournal (Criminal Procedure Rules) 1996. Indeed, no such intimation has ever been given in terms of that rule. By a letter to the Justiciary Office, dated 19 December 2008, solicitors acting for the appellant wrote in the following terms:

"Steven Allison v HMA

Your Ref: XC796/04

We refer to the above case and confirm that we are instructed by senior and junior counsel to request a hearing for leave to appeal to the Privy Council in relation to the recent refusal of the appeal against this conviction.

It is noted that a sentence appeal in this case has been set down for 21 January 2009. Counsel indicate that they would be happy to make the application for leave to appeal at that hearing.

In any event, we would point out that any application for special leave to appeal to the Privy Council requires to be submitted by 7 February 2009 and accordingly we would ask for a hearing in January 2009 to request leave to appeal to the Privy Council.

We would be grateful if you could acknowledge safe receipt of this letter and we look forward to hearing from you."

[4] This purported application for leave to appeal to the Privy Council came before us on 3 February 2009. It was accepted, at the outset, by senior counsel for the appellant that at no time had any minute of notice of intention to raise a devolution issue, within the meaning of paragraph 1 of Schedule 6 to the Scotland Act 1999, been lodged and served on the Lord Advocate and the Advocate General in terms of rule 40.2 of the Act of Adjournal. Furthermore, it was accepted on behalf of the appellant that at no time had any intimation of any devolution issue been given to the Advocate General in terms of paragraph 5 of Schedule 6 to the 1998 Act. Indeed, it was acknowledged that no document of any kind existed in which any devolution issue said to have been determined by this court had been formulated. Senior counsel for the appellant, however, contended that those particular circumstances were of no importance, having regard to what had been said by the Judicial Committee of the Privy Council in McDonald &c v HM Advocate 2008 SCCR 954. Reference was made particularly to paragraphs 11to 17 of the Opinions of the Board.

[5] It was, however, contended that, in the present case, the court had determined a devolution issue in respect that what the court had said in paragraphs 20 and 21 of the Opinion, dated 7 November 2008, was inconsistent with what had been said by the Judicial Committee in Holland v HM Advocate 2005 SCCR 417, particularly in the paragraphs following paragraph 64, in particular in paragraph 73. It was submitted that, in paragraph 20 of its own Opinion, this court had determined a devolution issue relating to cases outstanding against John Stronach. In particular, issue was taken with what the court had said in the last four sentences in paragraph 20. No exception was taken to how the court had dealt in paragraphs 21 to 25 with the other parts of Ground of Appeal (1) in the additional Grounds of Appeal, which had related to the failure of the Crown to disclose the previous convictions of Stronach. At no time during the discussion of the appellant's application for leave to appeal was any further attempt made to formulate the devolution issue which, it was contended, had been determined, in terms of any of the six categories of devolution issues defined in paragraph 1 of Schedule 6 to the 1998 Act.

[6] The Advocate depute submitted that the court should refuse the appellant's application for leave as incompetent. He argued that no devolution issue had been formulated during the hearing of the appellant's appeal against conviction and no intimation of any such devolution issue had ever been given to anyone. In particular, no intimation had been given to the Advocate General in terms of paragraph 5 of Schedule 6 to the 1998 Act. Nothing said in McDonald &c v HM Advocate indicated that a devolution issue could be determined by this court in the absence of such intimation.

Our Decision
[7] In the light of the foregoing circumstances and submissions, we decided to refuse the appellant's application as incompetent. Part II of Schedule 6 to the 1998 Act contains statutory provisions relating to devolution issues in proceedings in Scotland. Paragraph 5 of that Schedule is in the following terms:

"5. Intimation of any devolution issue which arises in any proceedings before a court or tribunal shall be given to the Advocate General and the Lord Advocate (unless the person to whom the intimation would be given is a party to the proceedings)."

Paragraph 6 provides:

"6. A person to whom intimation is given in pursuance of paragraph 5 may take part as a party in the proceedings, so far as they relate to a devolution issue."

It should be recorded that, of course, the Advocate General is not a party to these proceedings. Thus the situation which exists in the present case, in our view, is this. Because of the failure of the appellant to observe the mandatory statutory requirements of paragraph 5 of Schedule 6, the Advocate General has been deprived of the opportunity of deciding whether to participate in the present proceedings, in so far as they may relate to any devolution issue. In that situation, as a consequence, we consider that this court has been disabled from making any determination of any devolution issue which may arise in this case, since the mandatory statutory prerequisites of such a determination do not exist. In the absence of a competent determination of any devolution issue, the provisions of paragraph 13 of Schedule 6, in our opinion, can have no application to this case. It, of course, provides:

"13. An appeal against a determination of a devolution issue by -
(a) a court of two or more judges of the High Court of Justiciary (whether in the ordinary course of proceedings or on a reference under paragraph 9), .... shall lie to the Judicial Committee, but only with leave of the court concerned or, failing such leave, with special leave of the Judicial Committee."

For these reasons we consider that it was not open to us either to grant or to refuse leave under paragraph 13. We can see nothing in what was said by the Judicial Committee in McDonald &c v HM Advocate which would suggest that the provisions of paragraph 5 of Schedule 6 to the 1998 Act may be ignored and yet that there may be a competent determination of a devolution issue. We therefore hold that there is no competent application for leave to appeal before us under paragraph 13 of Schedule 6.

[8] On the assumption that we might be wrong in the conclusion we have reached, we would wish to make clear that we would not have been prepared to grant leave, had it been competent for us to do so. That is because, during the appellant's appeal against conviction, no formulation of any devolution issue said to have been determined in this case was ever attempted on behalf of the appellant, in accordance with the provisions of paragraph 1 of Schedule 6 to the 1998 Act. Thus we cannot be certain precisely what devolution issue is said to have been determined. Without knowing that, we do not understand how we could properly have exercised our discretion in relation to an application for leave, were it competent.