APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lady Paton Lord Mackay of Drumadoon	[2009] HCJAC 63 Appeal No: XC1014/03 OPINION OF THE COURT delivered by LORD OSBORNE in Appeal by COLIN McLEAN McINTYRE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Act: Shead, advocate; Messrs Paterson Bell, Solicitors, Edinburgh

Alt: Ferguson, Q.C, Advocate depute; Crown Agent

8 July 2009

The procedural history
[1] The appellant was indicted at the instance of the respondent on three charges. Charge (1) alleged an assault upon Balwant Singh Chadha on 4 March 2001. It contained the averment that it would be proved, in terms of section 96 of the Crime and Disorder Act 1998, that that assault was racially aggravated. Charge (2) alleged that on 4 March 2001the appellant had acted in a racially aggravated manner which caused and was intended to cause alarm and distress to Balwant Singh Chadha and involved shouting racial remarks and swearing, contrary to the Criminal Law (Consolidation) (Scotland) Act 1995 section 50A(1)(b). Charge (3) alleged that, between 15 March and 3 June 2001, the appellant had pursued a racially aggravated course of conduct, which amounted to harassment of Balwant Singh Chadha. In elaboration of that allegation, five particular allegations were made in paragraphs (a) to (e) of the charge. It was also averred that the appellant had done these things with the intention of harassing the complainer and in circumstances where it would appear to a reasonable person that the course of conduct would amount to harassment of him; all contrary to the Criminal Law (Consolidation) (Scotland) Act 1995 section 50A(1)(a). It should be explained that paragraph (a) of this charge involved an allegation of the utterance of racial remarks and threats, by means of a telephone call to the complainer, on a specified date, 15 March 2001. Paragraph (e) involved an allegation of the utterance of racial remarks, swearing and threats, by means of repeated telephone calls to the complainer, on a specified date, 3 June 2001. The appellant offered to plead guilty to charges (1) and (2), and not guilty to charge (3). That offer was unacceptable to the Crown. Accordingly the appellant went to trial on all three charges. After trial, the appellant was convicted on charges (1), (2) and (3)(a) and (e). He was sentenced to two months imprisonment in respect of charge (1), three months imprisonment in respect of charge (2), and twenty-one months imprisonment in respect of charge (3), all three sentences to be served concurrently.

[2] The appellant appealed against his conviction in respect of charge (3). He also appealed against the sentences imposed in respect of all three charges. In his note of appeal, the appellant advanced four grounds of appeal. Leave to appeal was refused in respect of ground 3. Ground 4 was directed against the sentences imposed by the sheriff, and has not yet been argued. Ground 1 was in the following terms:

"The sheriff erred in law in repelling a defence objection to the admissibility of the evidence of Mrs Elizabeth McClelland, Crown witness number 17. The appellant was interviewed on tape as a detainee. He was given a common law caution before questions were put to him. He chose to answer those questions in relation to the events that were the subject of charge 3. That tape was later sent to Mrs McClelland, a voice recognition expert, in order that his voice could be compared to the voice on the tape recording of the telephone calls that were the subject of charge 3. The appellant was not informed by the interviewing officers of the possibility that the interview tape might be used for such a purpose before he chose to waive his right to silence. An objection was advanced to the Sheriff regarding the admissibility of Mrs McClelland's evidence on the basis that the use of the interview tape for such a purpose was outwith the powers of the police in respect of a detainee. Further, it was argued that it would be unfair to admit the evidence of Mrs McClelland in the circumstances of the case. It is submitted that the Sheriff erred in repelling said submission. The evidence of Mrs McClelland was the only corroborating evidence of the identity of the maker of the phone calls that were the subject of charge 3. The wrongful admission of said evidence constitutes a miscarriage of justice in this case".

[3] Ground 2 was in the following terms:

"Further, there exists significant evidence which was not heard at the trial of the appellant. Some days after the appellant's conviction, the solicitor for the appellant was contacted by Ms Lindsay Johnston who had read of his conviction in a local newspaper. She was present at certain of the phone calls that are the subject of charge 3 and states that the maker of those calls was not the appellant but his incriminee, Alan Burns. Her affidavit will be produced. At the time of the trial, the appellant and his advisors were unaware of the existence of said witness or of the evidence that she could give. In the circumstances, it is reasonable that they were unaware of said evidence. There is accordingly a reasonable explanation as to why her evidence was not heard at the appellant's trial. The fact that it was not heard constitutes a miscarriage of justice in this case".

[4] The appellant's appeal against conviction, on the grounds specified, was heard on the 11 March 2005. In a judgment issued on 20 April 2005, the court rejected both of the appellant's grounds of appeal against conviction. On that date, an interlocutor in the following terms was pronounced:

"In the appeal against conviction, the Court having resumed consideration of said appeal and for the reasons stated in the Court's Opinion of even date, refused the appeal and continued consideration of the appeal against sentence to a date to be afterwards fixed. Bail previously granted being continued meantime".

[5] The Opinion of the Court, delivered by Lord Macfadyen, is reported (McIntyre v HM Advocate 2005 SCCR 380). On 29 September 2005, the appellant's appeal against sentence came before a court constituted by two judges. During the course of that hearing, counsel for the appellant, without prior notice, tendered a further purported ground of appeal against conviction. That further ground was in the following terms:

"The appellant was convicted of charge 3(a) and (e), the making of racially abusive phone calls on 15 March and 3 June 2001 upon the evidence of the complainer Mr Balwant Chadha, Crown witness number 3 and Crown witness number 17 Elizabeth McClelland who provided expert opinion evidence as to the identity of the caller. Mrs McCelland (sic) provided the only corroboration thereof.

The defence was that it was not the appellant who made said calls but Alan Burns who at the time of trial could not be traced.

Since the date of the appellant's trial Mrs McCelland (sic) has been given a tape recording of the voice of Alan Burns and has compared that tape to the tape recordings of the calls which formed the subject of charge 3 and to the tape recorded police interview with the appellant. She has produced two further reports dated 11 May and 22 August 2005.

In the report of 11 May 2005 Mrs McCelland (sic) concluded that in respect of three of the taped phone calls the voice was more likely to be that of Alan Burns than that of the appellant. In one call (named 'the call to Chadha' which was the subject of charge 3(a)) she considered the voice more likely to be that of the appellant (page 6). She expressed concern that inappropriate weight may have been given to both expert and lay identification evidence in this case.

In the further report of 22 August 2006 she analysed further voice samples from the appellant with a view to giving further views on whether the appellant was responsible for 'the call to Chadha'. Having considered that further voice sample she concludes that 'it is marginally more likely that the caller's voice is that of Colin McIntyre but that I would not exclude the possibility that it could also be the voice of Alan Burns.' (see page 5 of that Report).

In the circumstances there is a reasonable explanation as to why said evidence of Mrs McClelland was not heard at the trial of the appellant. At said date, although the said Alan Burns had been cited and had been incriminated by the defence, he did not appear at the trial diets. The Crown were unable to trace him. Attempts at obtaining a voice sample from him had been unsuccessful.

Since the trial, Alan Burns has been traced and has agreed to give a voice sample. He will be in a position to explain why he did not appear for trial and provide independent support as to why Mrs McCelland (sic) did not give the above evidence at the trial of the appellant. Reference is made to section 106 (3C) of the Criminal Procedure (Scotland) Act 1995."

Following that hearing, the court pronounced an interlocutor in the following terms:

"In the appeal against sentence, the Court having heard counsel for the appellant, allowed the further Ground of Appeal against conviction to be received and directed that the appeal against conviction proceed to 'sift', in terms of section 107 of the Criminal Procedure (Scotland) Act 1995, and continued the appeal against sentence to a date to be afterwards fixed".

Thus it will be seen that, on 29 September 2005, the court, which had been convened to hear the appeal against sentence, purported to receive the foregoing further ground of appeal against conviction. So far as the information before us goes, it appears that no member of the court raised any question concerning the tendering of a further purported ground of appeal against conviction after the appellant's appeal against conviction had been refused. Likewise, the Advocate depute appearing for the respondent raised no such issue, nor did the Clerk of Court. Thereafter, a single judge of this court, without comment, on 10 October 2005, purported to grant leave to appeal in respect of the further purported ground of appeal against conviction, received on 29 September 2005.

[6] Following these events, two procedural hearings were arranged in the case for 14 December 2005 and 27 April 2006, but, on each occasion, the case was withdrawn from the Procedural Hearing Roll at the request of the appellant's representatives. A further procedural hearing was arranged for 8 June 2006, but again the case was withdrawn from the Roll, the relevant interlocutor recording that an application under the provisions of section 94 of the 1995 Act seeking transcription of certain parts of the evidence of the complainer and of the expert witness, Elizabeth McClelland, had been lodged and was awaiting consideration by a judge.

[7] On 8 June 2006, the Head of the Appeals Unit in the Crown Office, Mr N W Orr, wrote to the Deputy Principal Clerk of Justiciary, intimating objection to the appellant's application under section 94 of the 1995 Act, but also expressing the contention of the Crown that, for the reasons specified in the letter, it was not competent for the appellant to proceed to argue the further purported ground of appeal against conviction. Detailed reasons were given for that position. The letter concluded with an invitation to the Deputy Principal Clerk of Justiciary to fix a hearing at which the issue of the competency of the proceedings relating to the further purported ground of appeal against conviction might be resolved. Shortly thereafter, on 13 June 2006, the appellant's application under section 94 of the 1995 Act was placed before a single judge, who refused the application, indicating that he did so because he accepted all of the points made in the letter of 8 June 2006.

[8] On 4 August 2006, the case was called at a procedural hearing before a single judge. On that occasion, the court pronounced an interlocutor in the following terms:

"The court, having heard counsel for the parties in respect that it was stated that (a) the Crown maintained that there was a question that remained to be resolved in relation to the competency of the appeal and (b) the question of transcription (previously refused...) also remained as a live issue, remitted the appeal to a bench of three judges to consider the preliminary issue that remained, said hearing estimated to take in the order of three hours".

Despite the terms of that interlocutor, inexplicably the case was yet again called at a procedural hearing, this time before a bench of three judges on 29 November 2006, when the court ordered that the outstanding issues should be addressed in a competent forum. For reasons that are unclear, that did not happen. On 18 January 2007, the case was once more called before a single judge at a procedural hearing, when, it appears, for the first time, the letter of 8 June 2006 was brought to the attention of judges taking part in a procedural hearing. On that occasion, the court remitted the case to a bench of three judges to consider the issue of the competency of the further purported ground of appeal against conviction. Unfortunately the terms of that order were ignored. The case was called again at a procedural hearing before three judges on the 9 March 2007, when the court once more directed that a full hearing should be assigned on the question of the competency of the appeal, having regard to section 124 of the 1995 Act, and the question of res judicata.

[9] Finally, on 7 August 2008, more than two years after the challenge to the competency of the further purported ground of appeal against conviction had been intimated to the Deputy Principal Clerk of Justiciary, the case came before us at a diet fixed for the purpose already described. On that date the hearing commenced and was adjourned to 8 August 2008. Unfortunately the two day diet allocated for the hearing proved quite insufficient and it had to be adjourned to a date to be fixed. It should be recorded that, during the course of the hearing, on 7 August 2008, counsel for the appellant sought leave to lodge a devolution issue minute late, in terms of Rule 40.5(1) of the Act of Adjournal (Criminal Procedure Rules) 1996, which was opposed on behalf of the respondent. No decision was made at that time on that matter, the court indicating that it wished to await the decision of the Judicial Committee of the Privy Council in the appeal from the decision of this court in McDonald v HMA 2008 SCCR 154, which was not then available, before determining if the devolution issue minute should be received. Thereafter the hearing was resumed on 3 February and concluded on 6 February 2009.

The submissions for the respondent
[10] The Advocate depute reminded the court that the hearing on the competency of the appeal had been ordered on 9 March 2007. The respondent's objection to competency had been expressed first in the letter of 8 June 2006 to the Deputy Principal Clerk of Judiciary and in the written note of argument lodged with the court on 5 September 2007. The Crown's position was that the appellant's appeal against conviction had been determined by its refusal by the court on 20 April 2005. Since then, the court had incompetently received the further ground of appeal. That could not now be competently entertained by the court. Furthermore, the issue raised in the further ground of appeal had already been decided in the original appeal against conviction on 20 April 2005. Accordingly the matter was res judicata; the decision issued on 20 April 2005 was now reported in McIntyre v HMA 2005 SCCR 380.

[11] The Advocate depute went on to provide further details of the procedural history of the case, which we have already outlined. On 20 April 2005, the court had disposed of the appellant's challenge to his conviction and had continued the appeal against his sentence. On 29 September 2005, the sentence appeal had called before two judges, when the further ground of appeal against conviction was tendered. No notice had been given to the Crown of the intention of the appellant's advisors to do that and the Crown had not been called upon in that connection. It was submitted that, on that occasion, the court had purported to exercise a power that, in fact, it did not possess. However that decision had initiated the subsequent procedure which had resulted in the purported decision of the single judge to grant leave to appeal on the further ground. The upshot of all this was that there was no competent appeal against conviction before the court.

[12] The Advocate depute next proceeded to undertake a review of the relevant statutory provisions relating to appeals against conviction and sentence. He drew attention to sections 106, 109, 110, 107, 103, 111, 118, 124 and 307 of the 1995 Act. He submitted that the statutory provisions made a distinction between appeals against conviction and appeals against sentence. In that connection, reliance was placed upon the provisions of section 106(1)(a) and (b) and (f)(i), section 103(2) and (3) and section 118(1) to (4). He also drew our attention to Rule 15.15 of the Act of Adjournal (Criminal Procedure Rules) 1996.

[13] The Advocate depute then referred to authorities which he contended assisted the court in this connection. Although there was no case directly in point, he contended that, on a true construction of Part VIII of the 1995 Act, the court had no power now to entertain the proposed appeal against conviction. In support of this view, he relied on McLeod v HMA 2005 SCCR 736, particularly the observations of Lord Emslie, delivering the Opinion of the Court, in paragraphs [10] to [12]. He also referred to Beggs v HMA 2005 S.C.C.R. 47, particularly paragraphs [6] and [8]. The Advocate depute also relied upon McWilliam, Petitioner 2002 S.C.C.R. 656, particularly paragraph [6] of the Opinion of the Court.

[14] It was submitted that Windsor, Petitioner, 1994 SCCR 59 was also of assistance. It was there held that, once the High Court had refused an appeal against conviction and affirmed the verdict of the trial court, the court's judgment was final and conclusive on all matters which could have been raised in relation to that verdict. The emergence of new evidence after an appeal against conviction had been concluded was a situation with which section 263 of the Criminal Procedure (Scotland) Act 1975, which was then in force, was designed to deal. That section related to the prerogative of mercy and the right of the Secretary of State to refer a case to the High Court at any time. Reliance was placed particularly on the observations of Lord Justice Clerk Ross at pages 65 to 66 and Lord Sutherland at pages 69 to 70. A similar approach was taken by the court in Granger, Petitioner, 2001 S.C.C.R. 337, as appeared from paragraphs [2] to [4] of the judgment in that case.

[15] The Advocate depute went on to rely on Beck v HMA 2006 SCCR 272. The observations in the Opinion of the Court in paragraph [6] indicated that it was not the intention of Parliament that there should be successive appeals against conviction. Further support for the Crown's position could be obtained from Beattie v HMA 1995 S.C.C.R 93 at page 106, in the Opinion of the Court delivered by Lord Justice General Hope, as he then was.

[16] Thus, when, on 20 April 2005, the appellant's appeal against conviction was disposed of by the court, that marked the end of that appeal. Accordingly the order made by two judges on 29 September 2005 and the subsequent sifting procedure were incompetent and not made under Part VIII of the 1995 Act. Those statutory provisions contemplated a single appeal, which, by that date, had been disposed of under section 118(1)(a) of the 1995 Act. The interlocutor pronounced on 20 April 2005 was final and conclusive, in terms of section 124(2) of the same Act. All that it now remained for the court to do, and all that it could competently do, was to hear and determine the appellant's appeal against sentence. The strength of the Crown's position might be tested upon the assumption that the foregoing submissions were wrong. If that were the position, a convicted person would have an interminable right to appeal against conviction on different grounds. That would be wholly destructive of finality and absurd. Plainly that was not contemplated in the legislation.

[17] Further, the interlocutor of 29 September 2005 was incompetent, since the court was not properly constituted in terms of section 103(2) of the 1995 Act, only two judges sitting in the court. In all of these circumstances, the court should now determine that the present purported appeal against conviction, which the appellant sought to advance, was incompetent and should refuse to allow any further procedure in respect of it.

The submissions for the appellant
[18] Counsel for the appellant began by observing that the Advocate depute had claimed that there was a sharp distinction between an appeal against conviction and an appeal against sentence. However, the appropriate starting point, in the circumstances of this case, was to focus upon a possible miscarriage of justice. It was ironic that, but for the technical questions which had been raised, there was a reasonable explanation for the non-availability at the trial of the material sought now to be introduced into the case, which would have passed the test set by section 106(3A) of the 1995 Act. A point that had to be emphasised was that the present case did not involve any possible exercise of the nobile officium. It had been contended that section 124(2) of the 1995 Act was at the heart of this case. That contention was unsound. That provision had nothing to do with this case. Counsel then considered Windsor, Petitioner. Reliance had been placed on the observations of Lord Justice Clerk Ross and Lord Sutherland in particular. The observations founded upon by the Advocate depute were obiter. The fact of the matter was that section 124(2) had been designed to make it clear that there was no appeal from the High Court of Justiciary to the House of Lords. Windsor, Petitioner, was not binding on this court. With reference to the purpose that counsel attributed to section 124(2) of the 1995 Act, reliance was placed on The Stair Memorial Encyclopaedia of the Laws of Scotland, Volume 6, paragraph 813.

[19] The submissions of the respondent in this appeal were to the effect that this court was precluded from reviewing its own decisions. That could not be what section 124(2) was designed to achieve. The court was entitled to revisit its own decisions. An example of that would be a case where an appellant failed to appear at an appeal hearing, in consequence of which his appeal was dismissed. The remedy available in such a case would be a petition to the nobile officium. The Advocate depute had contended that that would be incompetent, but this court had rejected that contention, without giving an opinion in an unreported case in which counsel had been involved. There were decisions of this court which were not easily reconcilable.

[20] The case of Beck v HMA was one where there had been an appeal against conviction prior to the making of the application for an extension of time within which to appeal. That was the ground of the decision in that case. Counsel agreed that it was not possible to review the merits of a decision in a criminal appeal by means of a petition to the nobile officium. The proper approach was that section 124(2) of the 1995 Act should be construed in a limited way; it related only to the need to make clear that an appeal did not lie to the House of Lords from the High Court of Justiciary. In the submission of counsel for the appellant, there was no principle of finality in appeals and section 124(2) did not provide it. Counsel accepted that he was unable to cite any case in which this court had interfered with its own interlocutors in criminal appeals, or sentences, other than in the context of applications to the nobile officium.

[21] Counsel went on to draw our attention to Cochrane, Petitioner 2006 SCCR 213, which he contended had been wrongly decided. However that decision did not bind this court. It had decided that, if an application to the Scottish Criminal Cases Review Commission failed, there was no right to apply to the nobile officium. He next relied on Hoekstra v HMA (Number 6) 2002 S.C.C.R. 135, particularly paragraph [39] of the Opinion of the Court. A wide submission had been made to the effect that the necessity for the court to consider whether an appellant had been denied a fair trial, should be recognised without regard to any limitations placed on the powers of an appeal court under domestic law. The court in that case had stated that it did not accept that proposition in its full width. Section 124(2) of the 1995 Act had to be construed in the light of section 3 of the Human Rights Act 1998. The court, when considering an appeal against conviction, was under a duty, if the circumstances were apt, to state that there was a ground of appeal not argued and to continue an appeal for its formulation. In any event section 110(4) of the 1995 Act might operate to allow argument of which no notice had been given in any existing ground of appeal.

[22] The Advocate depute had contended that appeals against conviction and appeals against sentence were separate appeals. Counsel accepted that that was correct, under reference to McLeod v HMA. However, he said that "this case is before the court"; section 110(4) could be used now as before. It was to be interpreted as still applicable. In any event, the court had, apparently applying Rule 15.15 of the Act of Adjournal, allowed the further ground of appeal to be received and sifted. That ought to be seen as an amendment to the existing grounds of appeal.

[23] Returning to the issue raised by the Advocate depute under section 103(2) of the 1995 Act, counsel submitted that, on 29 September 2005, the court had not been "hearing and determining any appeal". It therefore followed that three judges were not required to sit on that occasion; in any event, the quorum point was curable in respect that the matter could be raised again before three judges. Counsel accepted that, had there not been a sentence appeal in being, it would have been necessary for the appellant to apply to the Scottish Criminal Cases Review Commission for a referral; possibly an application to the nobile officium might have been made.

[24] Counsel then reverted to a discussion of the cases of Windsor, Petitioner and Beck v HMA. They appeared to indicate that a second appeal was impossible, based on fresh evidence, if there had been a first appeal on other grounds, which had been determined. However, as already submitted, Windsor, Petitioner was not binding on this court. If counsel were wrong about that, he contended that there might have to be convened a larger court.

[25] Counsel acknowledged that there were two Crown arguments directed to undermining the position which he had taken up on behalf of the appellant. The decision of the respondent to take these points was contrary to article 6 of the European Convention on Human Rights and Fundamental Freedoms. For that reason a devolution issue minute had been lodged, but not yet received. Counsel agreed that the terms of Rule 40.2 and 40.5 of the Act of Adjournal (Criminal Procedure Rules) 1996 applied. The Advocate General had indicated that he did not intend to enter the process. The appellant's contention was that a devolution issue arose, because the respondent was advancing an argument which was in conflict with the appellant's human rights. The devolution issue minute should be received.

[26] There had been a very considerable delay in lodging this minute but that delay was of no practical significance; no person had been prejudiced by it. In this connection counsel referred to HMA v Montgomery 1999 S.C.C.R. 959, particularly pages 966 to 969 in the Opinion of the Court. Against this background, the Advocate depute had urged a viewpoint that would generate Anderson appeals. The important factors were, first, that a failure to lodge a devolution issue minute timeously was not fatal; second, the legal landscape had changed since the decision in the case of HMA v Montgomery; third, that no prejudice had been suffered by anyone, save the appellant, by the delay; and fourth, the importance of the issue. The status and interpretation of section 124(2) of the 1995 Act was of the greatest constitutional importance. In this connection, counsel referred to McDonald v HMA 2008 SCCR 154, which was on appeal to the Judicial Committee of the Privy Council. In all of these circumstances, cause had been shown as to why the devolution issue minute should be received.

Submissions for the respondent on reception of the devolution issue minute
[27] The Advocate depute submitted that cause had not been shown why the minute should be received. There had been no explanation for the delay leading up to the lodging of the minute on 31 July 2008. Chapter 40 of the Act of Adjournal was not just concerned with the giving of notice to the Advocate General; it was also concerned with the giving of proper notice to the Crown. In any event, parts of the minute were irrelevant. Numbered paragraph "5" (which was in fact paragraph 6), focused upon an act which was not an act of the respondent or the Scottish Executive. What had been done was that the Crown had drawn attention to an incompetent act by the court on 29 September 2005, when the further purported ground of appeal had been received. In connection with this submission, the Advocate depute referred to Mills v HMA 2002 SCCR 860 and in particular paragraph 31 of the opinion of Lord Hope of Craighead.

[28] It had been argued that an issue of constitutional importance was involved. However, the proper interpretation of section 124(2) of the 1995 Act was not of that nature. That section did not impinge on the appellant's right of access to the court. In pursuance of that right of access, there had been an appeal against conviction on his part, which the court had determined. In other words, he had had the benefit of an effective remedy. If any remedy remained, it was one of application to the Scottish Criminal Cases Review Commission, seeking a referral to the court. The only purpose of the devolution issue minute under discussion was to introduce the jurisdiction of the Judicial Committee of the Privy Council into the context of this case.

Further submissions for the appellant
[29] Following an adjournment, counsel for the appellant drew to our attention that the Judicial Committee of the Privy Council had made its decision in McDonald v HMA 2008 SCCR 954. The Board had accepted that Rule 40.2 of the Act of Adjournal had been relied upon in the High Court. It was accepted that that Rule had application in this court and that therefore cause would require to be shown for the reception of a late devolution issue minute, although it had to be recognised that most of such issues were habitually raised long after the expiry of the time limit set by the rules, as was the case here. Counsel then proceeded to draw attention to the opinions delivered in McDonald v HMA, particularly paragraphs 11 to 16 in the opinion of Lord Hope of Craighead, paragraphs 42, 45, 46 and 49 in that of Lord Rodger of Earlsferry and paragraph 78 in the opinion of Lord Neuberger. The fact of the matter was that, in the present case, the timetable set forth in Rule 40.2 could never have been met. It was because of the submissions made on behalf of the respondent in the present case that the devolution issue minute had become important. The minute was focused upon the act of the respondent in resisting the appeal on competency.

Response for the respondent
[30] The Advocate depute renewed his objection to the reception of the devolution issue minute. He accepted that compliance with Rule 40.2 had been impossible, but the competency point had been raised on 4 August 2006, whereas the devolution issue minute had been lodged on 31 July 2008. The Advocate depute renewed his submission that, in numbered paragraphs "4 and 5" (in reality paragraphs 5 and 6 of the minute), there was no act of the respondent founded upon.

The submissions for the appellant on waiver and acquiescence
[31] On 29 September 2005, the respondent had not resisted the introduction into the case of the further ground of appeal against conviction. If the court had acted incompetently, either party could acquiesce in the incompetence and the situation created by the incompetent step could then properly continue. The respondent had done that here. It was only in the letter of 8 June 2006 that the Crown had taken up the position that the decision made on 29 September 2005 was incompetent. In support of the submission that the Crown had waived any right to object to, and had acquiesced in, any incompetence that there was in the decision taken by the two judges on the 29 September 2005, counsel relied upon Robertson v HMA 2006 SCCR 151, a case concerned with a conviction and sentence passed by a temporary sheriff, prior to the decision in Starrs v Ruxton 1999 SCCR 1052. He relied particularly on paragraph 49 in the opinion of Lord Rodger of Earlsferry. Counsel also relied on Dickson v HMA 2006 SCCR 637, particularly paragraphs [5] and [46] of the Opinion of the Court, delivered by Lord Macfadyen. It had to be accepted that the issue of waiver and acquiescence had to be determined on a case-by-case basis. Acquiescence might be inferred from silence. The Crown's silence had been broken only by the sending of the letter of 8 June 2006, but the point should have been taken on the 29 September 2005.

Further submissions for the respondent
[32] The Advocate depute indicated that he would reply to the appellant's submissions on section 124 of the 1995 Act; on the devolution issue minute; on the submissions of waiver and acquiescence of the appellant; and on the matter of res judicata. Turning first to the appellant's submission on section 124 of the 1995 Act, he submitted that it was misconceived. The section had nothing to do with the House of Lords. In Mackintosh v The Lord Advocate (1876) 3 R (HL) 34, it had been held that no appeal to the House of Lords was competent from judgments of the Court of Justiciary in Scotland. That followed the case of Bywater v The Crown 1781 2 Paton 563. He referred, in particular, to the observations of the Lord Chancellor (Cairns) at pages 35 to 37 and 40. The case of Beck v HMA plainly indicated that there could be only one appeal against conviction, not a succession of such appeals. Section 124 of the 1995 Act was the successor to section 17 of the Criminal Appeal (Scotland) Act 1926 and section 72 of the Criminal Procedure (Scotland) Act 1887. The only qualifications to the provision of finality in the terms of section 124 of the 1995 Act related to, first, the prerogative of mercy; and, second, the provisions of Part XA of the 1995 Act, which made provision for the Scottish Criminal Cases Review Commission, and paragraph 13(a) of Schedule 6 to the Scotland Act 1998, which related to appeals to the Judicial Committee of the Privy Council in connection with devolution issues. Beyond these qualifications, the terms of section 124 were absolute. The words "final and conclusive" meant what they said.

[33] The Advocate depute, under reference to Regina v Bow Street Metropolitan Stipendiary Magistrate & Others, ex parte Pinochet Ugarte (No 2) [2000] 1 AC 119, agreed that the House of Lords had no statutory limit on its powers. It was not disputed that the High Court of Justiciary could recall an order where there had been an "unfair procedure". That had been done in the Hoekstra case in consequence of its decision that Lord McCluskey could not be involved in the making of the relevant decision. However, that was not what was involved here. What the appellant was seeking to do in this instance was to have recalled a perfectly sound decision by this court. That would be incompetent.

[34] The Advocate depute next dealt with the matter of the appellant's devolution issue minute, in so far as it had not already been the subject of submissions by him. In this connection, he referred to Bricmont v Belgium; Application No 10857/84, at page 139 and 151. That case demonstrated that the European Commission on Human Rights considered that article 6 of the European Convention on Human Rights was consistent with a State setting time limits within which parties must submit claims to an appeal court. The same point had been made in Scotland in HMA v Dickson 1999 S.C.C.R. 859 at pages 867F to 868D, in the Opinion of the Court delivered by Lord Osborne. The case of Dickson had subsequently been the subject of decision by five judges reported as Dickson v HMA 2001 SCCR 397. It was then affirmed that the imposition of a timetable for the raising of devolution issues prescribed in Rules 40.2 and 40.5 of the Act of Adjournal, was consistent with Convention rights. In that connection reference was made to pages 407E to 408F and 416E.

[35] The Advocate depute moved on to consider the issue of waiver and acquiescence. He drew our attention to Dickson v HMA 2006 SCCR 637, a case concerned with decisions made by temporary sheriffs, particularly paragraphs [45] and [46] of the Opinion of the Court, delivered by Lord Macfadyen. The Advocate depute made two submissions. First, he contended that acquiescence had no part to play in the matter which had been raised in this case, namely the impact of section 124 of the 1995 Act. The Crown's contention was that the court simply had no jurisdiction to hear the further ground of appeal. The matter was one of jurisdiction or competency. Acquiescence could not create a jurisdiction in circumstances in which it did not exist. In any event, while the Crown did not raise the matter until the letter of 8 June 2006 was written, the issue was one which the Court was quite entitled to raise, ex proprio motu. Second, the Crown should not be seen as barred from founding upon this point on account of its failure on 29 September 2005 to state opposition to the motion made before the two judges at the sentence appeal hearing, of which no notice whatever had been given by the appellant. Within a relatively short time of that event, the Crown had caused the letter of 8 June 2006 to be written. These circumstances did not amount to an unequivocal acquiescence in the acceptance of the further ground of appeal.

[36] Finally the Advocate depute turned to deal with the issue of res judicata. He submitted that the plea of res judicata, as such, was unknown in Scots Criminal Law. In this connection he made reference to the Scottish Law Commission Discussion Paper on Double Jeopardy (No. 141), Parts 2 and 3, of January 2009. In particular, he referred to Part 2 paragraphs 2.1, 2.4, 2.6, 2.8, 2.9, 2.10, 2.11, 2.12, 2.13, 2.16 and 2.17. He also referred to Part 3, paragraphs 3.9 to 3.19. In this paper, there was no discussion of the position of the Criminal Appeal Court. The further purported ground of appeal tendered by the appellant raised substantially the same matter as had been decided in 2005. In any event, if the Crown's submissions on the effect of section 124 of the 1995 Act were correct, there would be no need to consider the issue of res judicata.

[37] The Advocate depute went on to address the implications of the decision in the appellant's original appeal against conviction, reported as McIntyre v HMA 2005 SCCR 380. It had to be noted from paragraph [4] of the Opinion of the Court that the ground of appeal had been amended. It had been noted that no reasonable explanation had been proffered as to why the evidence of Alan Burns had not been heard at the trial, as appeared from paragraph 33. If one looked at the further purported ground of appeal now proffered, paragraphs 3 and 4 referred to post-appeal events involving the acquisition of a tape recording of the voice of Alan Burns. The fresh evidence was indicated as being available from the expert Mrs McClelland, but that evidence depended upon the material obtained from Alan Burns after the trial. If there had been no reasonable explanation as to why Burns had not been a witness at the trial, there could be no reasonable explanation as to why the evidence now identified as underlying the further ground of appeal was not available at the trial. In this respect, the further ground of appeal now proffered raised an issue which had already been decided. That was objectionable.

Reply for the appellant on res judicata
[38] Counsel for the appellant submitted that a plea of res judicata was a plea in bar of trial, the object of which was to protect an individual against repeated criminal proceedings arising out of the same matter. In that connection he referred to Renton & Brown's Criminal Procedure, 6^th Edition, paragraph 9.08 and following. In these circumstances, in its nature, the plea would not operate against a convicted person. There was no authority in existence to show that the plea could be taken by the Crown in an appeal. The Scottish Law Commission had been correct in what it had said in paragraph 2.17 of the Discussion Paper No.141. Reverting to the report of the decision in appellant's first appeal, while it was held that there was no reasonable explanation as to why Alan Burns had not been available as a witness at the trial, it was submitted that there was a reasonable explanation why Mrs McClelland's evidence was as it was at the trial; that was because Alan Burns had not been available at the trial.

[39] Looking at the situation more broadly, the present situation was that Mrs McClelland, the main Crown witness, was now having doubts about the evidence which she had given at the trial. If that could be demonstrated in an appropriate context, the conviction would be quashed. Thus the present situation was very unsatisfactory as regards the interests of justice. There should be full access to justice. The Crown was seeking to prevent that on the basis of the plea of res judicata. The further ground of appeal was not dependant directly upon the evidence of Alan Burns; it related to the evidence that could now be given by Mrs McClelland. The possibility of an application for a referral to the Scottish Criminal Cases Review Commission was not a substitute for an appeal. In all the circumstances the plea of res judicata should be rejected.

The decision
[40] The first question which arises upon the basis of the undisputed procedural facts of this case is whether an appeal against conviction and an appeal against sentence, under solemn procedure, are to be treated as separate and distinct, or not. If they are not to be so treated, then because there is a subsisting appeal against sentence at the instance of the appellant, the further purported ground of appeal, against conviction, could simply be accepted as an addition, by amendment, to the undetermined ground of appeal against sentence. Section 110(4) of the 1995 Act, which is the statutory provision which, in effect, authorised amendment of grounds of appeal, would require to be seen as the basis for such an amendment.

[41] If however, appeals against conviction and sentence are to be treated as separate and distinct, then the situation which exists in this case is that, by the interlocutor of 20 April 2005, the court determined the appeal by the appellant against his conviction by refusing it. On this hypothesis two further questions would arise: first, whether that determination can be reviewed by this court; and, second, if not, whether there could be a second appeal against the appellant's conviction. Since the appeal process is a creature of statute, in our judgment, the answers to all of these questions must be found in the proper interpretation of the relevant statutory provisions.

[42] It is, of course, section 106 of the 1995 Act that confers the right of appeal in solemn cases. Sub-section (1) specifies the subject matter of appeals authorised by the section. Paragraph (a) refers to appeals against conviction. Paragraph (b) provides for an appeal "against the sentence passed on such conviction". The succeeding paragraphs as far as and including paragraph (e) specify a variety of different disposals following conviction against which there may be appeals under the section. While some of these may not properly be described as sentences, all of them share this feature, that they refer to orders specifying disposals following upon a conviction. Paragraph (f) is of a different kind. It provides that there may be an appeal against:

"(i) both such conviction and, subject to sub-section (2) below, such sentence or disposal or order;

(ii) both such a conviction and such a reference; or

(iii) such a conviction, such a reference and, subject to sub-section (2) below, such sentence, disposal or order".

Plainly therefore section 106(1)(f) contemplates that an appeal might be brought that involved, first, an attack upon a conviction, and, second, a criticism of the sentence, or other disposal, selected in respect of that conviction.

[43] The provisions of section 103 of the 1995 Act are also of importance in the present context. Sub-sections (2) and (3) make provisions for the quorum of the High Court in the determination of different kinds of appeals. Sub-section (2) provides that:

..."for the purpose of hearing and determining any appeal or other proceeding under this Part of this Act three of the Lords Commissioners of Justiciary shall be a quorum of the High Court, and the determination of any question under this Part of this Act by the court shall be according to the vote of the majority of the members of the court sitting, including the presiding judge...".

Because of the generality of the words just quoted, inevitably they apply to an appeal against conviction. However, sub-section (3) makes a different provision as regards a quorum of the High Court in relation to certain other specified types of appeal, that is to say,

..."any appeal under section 106(1)(b) to (e) of this Act, or any proceeding connected therewith," ... .

Section 106(1)(b) to (e) is, of course, that part of section 106 which deals with sentences or other disposals upon conviction. In the case of such appeals as that, the quorum of the court is specified as two of the Lords Commissioners of Justiciary. In the event that they are unable to reach agreement on the disposal of the appeal, or where they consider it appropriate, the appeal is to be heard and determined in accordance with sub-section (2).

[44] In the present connection, it is also important to note the terms of section 118 of the 1995 Act, which provide for the powers of the High Court in the disposal of different appeals. In sub-section (1) there are enacted the powers available to the court in the disposal of an appeal against conviction. Sub-sections (2) and (3) may properly be described as provisions ancillary to sub-section (1). Sub-section (3), in particular, makes provision for the quashing, or modification of any sentence, or disposal, or order, where the associated conviction has been quashed , or an amended verdict of guilty has been substituted for it, quite irrespective of whether any appeal against sentence has been taken. Sub-section (4), makes a provision for the powers of the court in the disposal of an appeal against sentence. It also contains a definition of an "appeal against sentence", which includes a number of the several disposals referred to in section 106(1). It also includes those appeals referred to in section 106(1)(f), all of which, in one way or another, involve a challenge of a sentence or disposal, as well as a conviction.

[45] Looking at the provisions which we have just summarised, we conclude that an appeal against conviction and an appeal against sentence, or other disposal, are properly to be seen as separate and distinct proceedings, although, in certain cases, they may run side by side. In adopting this view, based on the statutory provisions themselves, we are reassured by the decision of the court in McLeod v HMA. The facts in that case included the situation that the appellant sought leave to appeal against both conviction and sentence. The first sift judge refused leave on both accounts, but the second sift judges granted leave to appeal against conviction and refused leave to appeal against sentence. The appellant then sought leave from the court under section 107(8) of the 1995 Act to argue his appeal against sentence. However, the court held that an appeal against conviction was in its nature quite different from one against sentence; that there could be no overlap of grounds between the two categories; that the fact that the legislation permitted appeals in both categories to proceed in tandem was not sufficient to assimilate them, or blur their essential differences; that, notwithstanding a grant of leave by the first sift judge in one category, recourse to the second sift was regarded as competent against refusal of leave in the other; that when the appeal against sentence failed at both sifts, to allow the appellant to persist further would run counter to the desirable object of certainty and finality in the appeal process; that since the leave to appeal granted applied to the totality of the conviction, it did not, in its proper context, amount to a partial grant for the purpose of section 107(8); and that, a fortiori, there was no good reason why it should be held to amount to a partial grant with regard to the appeal against sentence. In these circumstances, the application to the court was dismissed as incompetent. The observations of Lord Emslie, in delivering the Opinion of the Court, in paragraph 10, are cogent in the present context. There he said:

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

[46] In all these circumstances, we have no difficulty in concluding that appeals against conviction and appeals against sentence must properly be seen as separate and distinct proceedings. It follows from that conclusion that where there exists a subsisting appeal against sentence, the provisions of section 110(4) of the 1995 Act authorise the court, on cause shown, to allow an addition to or an extension of the appellant's grounds of appeal, but only in so far as the extension or addition relates to the sentence appeal. That provision could not authorise the acceptance, in such a context, of grounds of appeal against conviction.

[47] We should make clear that nothing said in Pickett v HMA 2007 SCCR 389 is inconsistent with our view. In that case, the appellant lodged a note of appeal against sentence. In the course of the discussion of that appeal, it became apparent that the appellant's complaint, in effect, amounted to a criticism of his conviction. In that context, there having been no previous appeal against conviction, the court allowed the appellant to lodge grounds of appeal against conviction late, a course authorised by section 111(2) of the 1995 Act.

[48] Standing the conclusion we have reached, and standing the fact that the appellant's appeal against conviction was refused by this court on the 20 April 2005, the question then arises of whether that determination can somehow be reopened by the court in such a way as to allow consideration of the further purported ground of appeal against conviction which has been tendered. In our judgment, the answer to that question is indubitably in the negative. The interlocutor of 20 April 2005 unequivocally refused the appellant's appeal against conviction. The terms of section 124(2) of the 1995 Act, we consider, would prohibit the course suggested. The words used in that sub-section are quite clear:

"...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...",

subject to certain qualifications which have no application in the circumstances of this case. It was argued by counsel for the appellant that the purpose of this provision was to make plain that an appeal did not lie to the House of Lords from the High Court of Justiciary. We regard that argument as quite without merit. That is not what the subsection says. Further, in Mackintosh v The Lord Advocate, as long ago as 1876, it was decided that no such appeal could lie. That simply reflected the much earlier decision made in 1781 in James Bywater v The Crown.

[49] We are supported in our conclusions in this regard by what was said in Windsor, Petitioner. That case was concerned with a consideration of section 262 of the Criminal Procedure (Scotland) Act 1975. At page 65F the Lord Justice Clerk Ross said this:

"On the matters raised before us, I am satisfied that the argument of the Lord Advocate is to be preferred. On 21 November 1986 the court refused the petitioner's appeal against conviction. In terms of section 254(1)(a) that meant that the court affirmed the verdict of the trial court. In terms of section 262 that decision was a judgment or an interlocutor of the High Court which is final and conclusive and not subject to review by any court whatsoever in terms of section 262 of the Act of 1975. (As was pointed out in Perrie, the word "interlocutor" in section 262 covers any judgment or order pronounced by the court). The only exception to the finality of the proceedings would be if the Secretary of State decided to refer the whole case to the High Court under section 263(1)... . In my opinion, [senior counsel for the petitioner] was incorrect when he sought to argue that the finality provisions only applied to the grounds of appeal which were before the court on 21 November 1986. Once the High Court has refused an appeal against conviction and affirmed the verdict of the trial court, that judgment is final and conclusive on all matters which could have been raised in relation to that verdict".

[50] Dealing with the problem of new evidence which came to light after a trial and prior to an appeal being heard, the Lord Justice Clerk added at page 66D:

"If new evidence comes to light after the trial and prior to the appeal being heard, the appellant may be able to rely on the provisions of section 228(2) and section 252(b) of the Act of 1975; if the new evidence emerges later, the appellant may invoke the provisions of section 263".

That latter provision dealt with first, the prerogative of mercy and, second, the referral of a case to the High Court by the Secretary of State, which was the means whereby such matters might be brought before the court prior to the establishment of the Scottish Criminal Cases Review Commission. At page 70A, Lord Sutherland affirmed the position regarding finality in these words:

"As far as statutory intention is concerned it is clear that under section 262 the interlocutor pronounced by the High Court is final and conclusive and that means, in my view, that the decision of the High Court to affirm the verdict of the trial court is final and conclusive. I cannot accept the argument advanced by counsel for the petitioner that it is only matters which were raised in this appeal which have been conclusively dealt with. Under the provisions of the Act it is the verdict of the trial court which is affirmed and it is that decision which is final and conclusive and it matters not in my view on what grounds that verdict was affirmed. If counsel's submission was correct, it would mean that there could be a succession of appeals on different grounds and such a proposition has, as far as I know, never even been advanced, let alone affirmed".

[51] Similar views were expressed in Granger, Petitioner, a case decided by a single judge. In that case the petitioner had been convicted of perjury in 1985. He was refused legal aid to appeal against his conviction. He appeared himself in the appeal, which was refused. He subsequently applied to the European Commission of Human Rights, which referred his case to the European Court of Human Rights, which held in 1989 that the failure to give him legal aid constituted a violation of his rights under the European Convention on Human Rights. In March 2001 he lodged a petition to the nobile officium on the ground that there was no other remedy open to him to have his conviction quashed, and sought an order for intimation and service. Lord Hardie held that the ultimate purpose of the petition was to argue the merits of the case with a view to the court altering its previous decision, and that the petition was incompetent; he refused the order sought. In paragraph [2] he said this:

"It is clear from the prayer of the petition that the petitioner seeks to set aside his conviction in the light of the decision of the European Court of Human Rights. Such a course would inevitably involve this court in subjecting to review the interlocutor which dismissed the petitioner's appeal in 1986. Section 124(2) of the Criminal Procedure (Scotland) Act 1995, as amended... prohibits the review by any court of every interlocutor and sentence pronounced by the High Court of Justiciary except in cases referred to that court by the S.C.C.R.C. in terms of section 194B of the 1995 Act, or cases which are appealed to the Judicial Committee of the Privy Council under paragraph 13 of Schedule 6 to the Scotland Act 1998. In my opinion it is clear from the terms of section 124(2) that unless the petitioner can bring himself within either of these exceptions the present petition is incompetent".

[52] In all these circumstances, we are clearly of the opinion that it is not competent for the appellant to seek to have reviewed in this court the final determination of the appellant's appeal against conviction, expressed in the interlocutor of 20 April 2005. It matters not, in our view, that certain of the circumstances referred to in the further ground of appeal tendered had their origin in events post-dating the determination of the appeal. As was said in Windsor, Petitioner, that consideration can avail the appellant nothing. Any remedy in relation to them lies in a referral of the matter to the court by the Scottish Criminal Cases Review Commission.

[53] During the course of the hearing before us, a somewhat nebulous argument was advanced by counsel for the appellant, based on the provisions of section 3 of the Human Rights Act 1998 and article 6 of the European Convention on Human Rights. It appeared to relate to the interpretation of section 124(2) of the 1995 Act and, it may be, to a situation in which the court was considering an appeal against conviction, although we are uncertain about that since the submission was not formulated with any precision. It was not made clear whether the suggestion was that the court was simply bound to ignore section 124(2) of the 1995 Act, where that was necessary to secure a "fair hearing" in relation to all matters an appellant desired to raise, even after his appeal against conviction had been determined, or whether, in some way, section 124(2) should be interpreted so as to accommodate what counsel for the appellant contended for. Counsel simply asserted that there was no principle of finality.

[54] Whatever may be supposed to be its basis, or nature, we reject this argument. We consider that domestic law, which sets limits as to the time at which grounds of appeal may be considered by an appeal court, is consistent with article 6 of the European Convention. In that connection we refer to Bricmont v Belgium. In any event, how section 124(2) of the 1995 Act could be "interpreted" to mean the opposite of what it says eludes us completely.

[55] Having reached these conclusions, the final question which we have to address in this context is whether there could be, in the circumstances here, a second appeal against conviction. We are in no doubt that such a proceeding would be incompetent. Not only would it offend against the provisions of section 124(2) of the 1995 Act just discussed, but also it would be inconsistent with the whole scheme of the relevant legislation and with the decision in Windsor, Petitioner. In any event, this very issue was considered by the court in Beck v HMA. In that case the appellant had brought an appeal to the High Court against conviction, which had been refused in 1982. The appellant had not been legally aided in that appeal and had represented himself. He applied to the Scottish Criminal Cases Review Commission to refer his case to the High Court, but the Commission decided not to do so. Against that background, in 2005, he brought an application for an extension of time in which to appeal against his conviction, on the ground that the appeal proceedings in 1982 had allegedly been unfair for a number of reasons. That application was refused by a single judge as incompetent and the appellant appealed to the High Court. The court held that section 111(2) was never intended to afford to a person, who has in fact appealed against a conviction and has had that appeal determined upon certain grounds, the opportunity again to initiate further appeal proceedings, either upon those grounds, or upon some other grounds, and that the refusal of the application by the single judge as incompetent was correct. In delivering the Opinion of the Court, Lord Osborne in paragraph [6] said this:

"The premise upon which section 111(2) operates is that there has not been an appeal, but that a convicted person desires that there should be. In our opinion, section 111(2) was never intended by the legislators to afford to a person who has in fact appealed against conviction and has had that appeal determined upon certain grounds the opportunity again to initiate appeal proceedings, either upon those grounds, or upon some other grounds. While section 111(2) does not contain any express qualification to that effect, in our view, such qualification is to be inferred from the context of that enactment, in particular, the other provisions regarding appeals in solemn proceedings to be found in Part VIII of the 1995 Act. ...Whatever other remedies, if any, may be available to the appellant, he cannot by the means which he has chosen properly initiate fresh appeal proceedings after his original appeal has been determined".

[56] For all of these reasons, our conclusion is that there is now no competent method by which the appellant, at his own hand, can appeal against his conviction, his appeal in that regard already having been determined. We therefore reject as incompetent the appellant's purported further ground of appeal against conviction.

[57] A feature of this case which cannot be ignored, is the existence of the interlocutor of 29 September 2005, pronounced by a court constituted by two judges. That court pronounced an interlocutor which purported to allow the further proposed ground of appeal against conviction to be received; and also directed that the appeal against conviction proceed to "sift" in terms of section 107 of the 1995 Act. In our view, that order was plainly incompetent for the reasons which we have already explained. It is to be regretted that the members of the court concerned did not seem to be aware of that. It is also to be regretted that the Crown did not raise the matter of competence at the time, nor did the clerk of court. In that connection, it appears that counsel for the appellant gave no prior notice to anyone of an intention to tender the purported further ground of appeal against conviction. In any event, in our judgment, at the stage at which the further ground of appeal was tendered, it was not open to the court to receive it, with a view to that ground of appeal against conviction being competently considered by the court.

[58] However, quite apart from the reasons that we have already set out, in our opinion, there are certain other reasons, arising out of the terms of sub-sections 103(2) and (3) of the 1995 Act why the interlocutor of 29 September 2005 was incompetently pronounced. We have already summarised the provisions of those two sub-sections. It is quite plain that the purported act of allowing the further purported ground of appeal to be received, was an act which, on any view, two judges of this court were not empowered to perform, on account of the provisions of sub-section (2). The reception of the further ground of appeal, in our view, must be seen as an act falling within the description of the circumstances in which that sub-section provides that the quorum of the court must be three judges. In our opinion, the reception of a ground of appeal against conviction must be part of "hearing and determining any appeal or other proceeding under this Part of this Act", rather than disposing of "preliminary and interlocutory proceedings incidental to any appeal", which is within the competence of a single judge under section 103 (7) of the 1995 Act.

[59] It is also necessary to consider the issue of waiver and acquiescence raised on behalf of the appellant. The premise which we understood to underlie the argument advanced on behalf of the appellant was that the conduct of the Crown in failing to object to the reception of the further purported ground of appeal on 29 September 2005 and the delay that occurred between that time and the time at which the Crown did raise their objection to the competency of the further ground of appeal, by letter dated 8 June 2006, gave rise to a sound basis for this plea. In this context, it is necessary to have regard to Robertson v Procurator Fiscal, Aberdeen, a case concerned with the consequences of the use of temporary sheriffs. It was held in that case that a person who acquiesced in his conviction and sentence, even though he knew that they were open to challenge, thereby lost his right to have the wrong redressed by the suspension of the conviction and sentence, without which redress the conviction and sentence would stand, even though there had been an infringement of a person's rights under article 6 of the European Convention on Human Rights. The case is notable for the discussion of circumstances in which the defect founded upon is of such gravity that, irrespective of how a party reacted to it, the resulting order or decision had to be set aside. Putting the matter in another way, there was a discussion in the opinions of Lord Hope of Craighead, at paragraphs 11 to 14 and of Lord Rodger of Earlsferry at paragraphs 47 to 50 of the concept of fundamental nullity. Despite the uncertainty surrounding the concept of a fundamental nullity and thus the difficulty of determining whether or not a plea of waiver and acquiescence might operate, in the circumstances of this case, we are of the view that the defects inherent in the decision of the two-judge court on 29 September 2005 are of such gravity that a plea of waiver and acquiescence raised against the Crown could never succeed. In the various respects that we have described, that decision was incompetent. It conflicted with the provisions of section 124(2) of the 1995 Act and was taken by a court with a quorum that disentitled it to make the decision concerned. Against that background, we consider that the plea of waiver and acquiescence could not be sustained. In any event, we very much doubt whether the inaction of the Crown's representative on 29 September 2005 and the delay between that date and the clear expression of objection to the competence of what had been done, in the letter of 8 June 2006, were sufficient to give rise to such a plea.

[60] Quite apart from these considerations, in our opinion, even if the Crown could be held to have acquiesced in the decision concerned, any such acquiesce would not disentitle this court from itself noticing and giving effect to the incompetence that we have discerned. The court could not acquiesce in a procedure which is fundamentally incompetent and it is entitled, at any time, to recognise that incompetence ex proprio motu.

[61] During the course of the discussion before us, there was some reference to the plea of res judicata. We have considerable doubts as to whether such a plea can be seen as apt in a context such as this, having its origin, as it does, in the field of civil litigation. However, having regard to the view which we have taken as to the effect of section 124(2) of the 1995 Act, we find it unnecessary to reach any conclusion on the detailed submissions made to us on this topic.

[62] It remains finally to consider the position relating to the devolution issue minute tendered on behalf of the appellant on 31 July 2008. As yet, no decision has been made as regards its reception. Submissions were made to us in support of and in opposition to that course, particularly having regard to the provisions of Rule 40.5 of the Act of Adjournal (Criminal Procedure Rules) 1996. We find it unnecessary to reach any conclusion on those submissions for the following reason. The minute which has been tendered relates to the actions of the respondent in the context of what is said to be a subsisting appeal against conviction. That is quite evident from the terms of paragraphs 3, 5 and 6 of the minute. Since we have held that there is no subsisting appeal against conviction, nor was there such an appeal on 31 July 2008, when the minute was tendered, in our judgment, the minute relates to no live proceedings. In these circumstances, it would be pointless and inappropriate for us either to allow or to refuse reception of the minute. Quite simply, it can serve no purpose, since there are no proceedings to which it can relate, nor were there when it was tendered. In these circumstances we make no order in relation to it.

[63] In all the circumstances we have concluded that there is no appeal against conviction competently before us.