APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lord Clarke Lord Emslie	[2009] HCJAC 67 Appeal No: XM11/08 OPINION OF LORD OSBORNE in PETITION TO THE NOBILE OFFICIUM by JOHN AHMAR HUSSAIN AKRAM Petitioner; against HER MAJESTY'S ADVOCATE Respondent: _______

Petitioner: Shead, Advocate; Drummond Miller

Respondent: Ogg QC; Crown Agent

24 July 2009

The background circumstances

[1] The petitioner in this petition to the nobile officium was charged on a summary complaint that:

"on 26 July 2003 at the bus stop in Cockburn Street, Falkirk you....did culpably and recklessly throw a stone or similar object at a single decker public service bus, registration P214 NSC, then in operation and said stone struck a window on said bus whereby said window was damaged causing the bus window to smash."

Having pled not guilty to this charge, on 11 August 2004, the petitioner appeared for trial. At the conclusion of the trial, he was convicted by the Sheriff at Falkirk. Sentence was deferred. On 7 October 2004 the Sheriff ordered the petitioner to perform 100 hours community service. He also imposed a compensation order of £29.57, which was said to be the cost of repair of the damage arising from his criminal act. On the same date, the petitioner made an application for a Stated Case on the several grounds which are set out in that document.

[2] In the Stated Case, the Sheriff found the following facts admitted or proved:

1. Between 9.30 pm and 10.00 pm on 26 July 2003 Brian Benton was driving a single decker public service bus registration P214 NSC on Newmarket Street, Falkirk.

2. He stopped at a bus stop and approximately twenty youths boarded the bus. Another twenty or so youths remained outside the bus and appeared to be hostile to the youths on the bus whom they taunted.

3. The police arrived to investigate an allegation about a knife and after a delay of twenty minutes they removed a youth (who did not have a knife) from the bus and told Benton to proceed with his journey.

4. About a minute later Benton was driving the bus in Cockburn Street where he saw two youths at a bus stop on his nearside. He recognised them as being part of the group who had been on the pavement in Newmarket Street and he had seen them leaving before the police told him to drive off.

5. He was suspicious of the two youths and as the youths on the bus shouted to him not to stop, he drove on.

6. As he did so, the appellant [the petitioner], who was on the off-side of the bus threw a brick at the bus causing one of the windows on the offside of the bus to break and showering two young female passengers with broken glass. It is not known whether either of them was injured.

7. The appellant's action in throwing the brick at a bus carrying passengers can properly be described as culpable and reckless.

8. Benton drove the bus into Upper Newmarket Street where he reported the incident to police officers.

[3] In the note forming part of the Stated Case, the Sheriff observed that there was no dispute between the parties that, after an incident in Newmarket Street, Falkirk on 26 July 2003 Brian Benton was driving a bus in Cockburn Street when someone culpably and recklessly threw a brick at it which struck and broke an off-side window, showering two female passengers with broken glass. The sole issue was whether or not there was sufficient credible and reliable evidence to identify the appellant as the person who threw the brick. Thereafter, the Sheriff went on to describe the prosecution evidence. He recorded that the witness Benton deponed that, when the brick came through the window of the bus, he had seen who threw it. When he was asked if that person was in court, he unhesitatingly pointed to the appellant [the petitioner], whom he positively identified as the person who had thrown the brick. The Sheriff records that it emerged in cross-examination of this witness that, prior to seeing the appellant throwing the brick, the latter had been a stranger to him. The Sheriff records that evidence was led on behalf of the petitioner from one Constable Reynolds. He had become involved following the incident. He had taken a statement from Benton. In the course of that statement Benton had not said that he had seen the person who threw the brick nor had he given any name to Constable Reynolds.

[4] The Sheriff narrates the other evidence led by the prosecution in support of the complaint. This came from one Robert Finnie, who the Sheriff concluded was neither a credible or reliable witness. The last prosecution witness was Darren Wright. The Sheriff states that he was positive and unequivocal in deponing that he had been in Cockburn street with the appellant [the petitioner], whom he had known for years, having been at school with him and whom he identified without any doubt or difficulty. He stated that Finnie and the appellant [the petitioner] had been on the drivers side of the bus. These two boys had shouted "Here's the bus coming"; the witness saw that the appellant [the petitioner] had a brick in his hand. The bus had not stopped and when it had been about 45 feet away from the appellant [the petitioner] he had thrown the brick at it, breaking a window. This witness adamantly reiterated that the appellant [the petitioner] had been the person who threw the brick which broke the window and he refused to depart or waiver from that evidence, despite a lengthy and forceful cross-examination.

[5] The Sheriff describes the defence evidence. Apart from the evidence of Constable Reynolds, already mentioned, he records that the appellant [the petitioner] himself gave evidence, denying that he had committed the act charged. He could not explain why Benton had identified him as the perpetrator. He testified that Wright had been lying when he gave his evidence.

[6] The Sheriff goes on to explain that he had accepted the submissions made by both parties that the sole issue in the case concerned the identification of the appellant [the petitioner] as the person responsible for the act libelled in the charge, which issue depended solely upon the Sheriff's assessment of the credibility and reliability of the witnesses. In his decision, the Sheriff states that, bearing in mind that Benton had been an eye witness to whom the appellant [the petitioner] was, or was presumed to be, a total stranger, he scrutinised his evidence about identification with particular care. Having done so he found him to be both a credible and reliable witness. Likewise he found the evidence of Wright to be credible, reliable and convincing. The Sheriff did not find the appellant's denial of guilt as either credible or reliable. In these circumstances, being satisfied that there was sufficiently corroborated reliable and credible evidence of the appellant's guilt, he convicted him.

[7] Finally, the Sheriff records in the Stated Case that, at the hearing of proposed adjustments to the Stated Case, there was lodged on behalf of the appellant [the petitioner] an amended application for a Stated Case, in which the matters desired to be brought under review had been altered. The Sheriff states that, in so far as any of those matters in the amended application did not coincide with the case as stated by him, his only comment was that he did not accept them as a true and accurate record of what had taken place during the trial; in some instances, for example the alleged violation of the appellant's human rights, they related "to issues which were not raised at the trial." The questions formulated for the Opinion of the Court in the Stated Case were as follows:

"a. On the evidence led was I entitled to make finding 6?

b. On the facts stated was I entitled to convict the appellant?"

[8] It is necessary to record that the adjustments proposed on behalf of the appellant to the Stated Case, extending to four pages, are set forth in the appendix to it. In those adjustments, it was contended that there had been a miscarriage of justice for reasons specified. These reasons were stated to be:

1. No reasonable Sheriff properly directing himself could have accepted the evidence of the witness Benton.

2. The identification of the appellant was unreliable.

3. It was oppressive of the Crown to invite a dock identification of Benton in the circumstances where he was unable to do so and to seek a conviction on that evidence.

4. There was a violation of the accused's rights under Article 6 of the European Convention on Human Rights by the Crown in seeking to have Benton identify the appellant and to seek a conviction on that evidence.

5. The Crown should have put the prior inconsistent statement of the witness Benton to him. In not doing so there was a breach of section 52 (2)(sic) of the Scotland Act 1998 and Article 6 (1) of the European Convention on Human Rights.

These points were elaborated in the proposed adjustments.

[9] In due course, the petitioner's appeal by way of Stated Case was submitted to a single judge to consider whether leave to appeal should be granted in terms of section 180 of the Criminal Procedure (Scotland) Act 1995. On 24 December 2004 that judge refused the application for leave to appeal, making the following comment:

"The appeal against conviction raises the question as to whether the Sheriff was entitled to make finding in fact 6, to the effect that the appellant had been the person who had culpably and recklessly thrown a brick at a public service bus. As the Sheriff makes clear in the Stated Case, finding in fact 6 is based on his assessment of the credibility and reliability of the witnesses, who gave evidence during the trial. It is not arguable that the Sheriff was not entitled to make the findings in fact that he did and to convict the accused."

[10] Following upon the intimation of that decision, solicitors acting on behalf of the petitioner wrote to the Clerk of Justiciary by letter dated 13 January 2005, in the following terms:

"We refer to your letter dated 30 December 2004 intimating refusal of leave to appeal at first sift. On behalf of the appellant John Akram we hereby exercise his right of appeal to the second sift judges. When consideration is being given to the appeal we would wish the following points taken into account.

1. The witness Benton gave a statement to the police in which he said that he could not identify the perpetrator of the offence. The decision of the Procurator Fiscal to invite the witness to make a dock identification of the appellant and to rely on that identification in seeking a conviction were acts which were oppressive et separatim contrary to the appellant's right to a fair trial guaranteed by Article 6 (1) of the European Convention on Human Rights. Since such acts were incompatible with the appellant's convention rights they were ultra vires. Reference is made to s.57 (2) of the Scotland Act 1998.

2. In any event no reasonable Sheriff, properly directing himself, could have relied on that evidence. It was clear from the evidence of the reporting officer that the witness had not seen the perpetrator at the time of the commission of the offence. That being so and given the passage of time since the alleged incident it could not be said that the evidence of identification could be regarded as sufficiently reliable to establish beyond reasonable doubt that the appellant was the perpetrator of the offence.

We look forward to receiving the court's decision in due course."

[11] On 23 February 2005, the petitioner's application came before three judges of the High Court. They decided to refuse the application, stating:

"We agree with the reasons given by Lord [the single judge]."

The present petition

[12] Against the foregoing background the petitioner has presented the present petition to the nobile officium. In it, after narrating the circumstances already described, the petitioner avers:

"5. That it appears that the judges at the second sift took no account of the material presented in agents' letter. If so the petitioner was denied a fair hearing to which he was entitled. In any event he was denied the appearance of a fair hearing.

6. That the appeal could not be said to have been unarguable at the time the relevant decision was under consideration. That was not least because the issue of dock identification was then under consideration in an appeal to the Judicial Committee of the Privy Council.

7. That the reasons given did not address the central question of the propriety of seeking dock identification in the circumstances set out in the Stated Case and in the letter to the second sift.

8. That the petitioner was entitled to a reasoned judgement both by virtue of the relevant statutory provisions and having regard to his right under Article 6 (1) of the European Convention of Human Rights.

9. That in the circumstances described the court acted unlawfully, erroneously and contrary to law in refusing to appeal (sic). Separatim. The court acted contrary to the petitioner's right to a fair hearing guaranteed by Article 6 (1) of the European Convention on Human Rights and as a consequence unlawfully in terms of section 6 of the Human Rights Act 1998.

10. That in any event justice was neither done nor was it seen to be done. The court was bound to act compatibly with the appellant's Convention rights. In the circumstances the court was obliged to consider the substance of each of the arguments raised and otherwise to identify any arguable ground of appeal.

11. That the petitioner has no other remedy available to him other than to petition the nobile officium. This petition is accordingly necessary."

Against that background the petitioner seeks certain orders described in the prayer of the petition. In the first instance he seeks an order to set aside the decision complained of and to consider de novo the question of whether leave to appeal should be granted. Separatim the petitioner seeks a grant of leave to appeal in relation to the matters raised in the solicitors letter referred to and any other ground considered to be arguable.

[13] The respondent has lodged answers to the petition, in the course of which it is admitted that the petitioner was entitled to a reasoned judgment in respect of his application for leave to appeal. The respondent contends that he did indeed receive such a judgment in terms of the letter advising him of the decision of the second sift judges. It is also admitted that the court was obliged to consider the substance of each of the arguments raised on the petitioner's behalf and otherwise to identify any arguable ground of appeal. The respondent has also tabled a plea-in-law to the effect that, there being a right of appeal open to the petitioner in terms of section 194B and 194C of the 1995 Act, the petition is incompetent and should be dismissed. Elaborating that point in averment, the respondent contended that the petitioner could apply to the Scottish Criminal Cases Review Commission, "the Commission", to have his case referred to the Court of Appeal in terms of those enactments.

The contentions of the parties

[14] At the outset of the hearing before us, in view of the respondent's plea to the competence of the petition, we heard the Advocate depute in support of that plea. He began by explaining that in McSorley, petitioner 2005 S.C.C.R. 508, the petitioner had presented a petition to the nobile officium arising out of a decision by three judges of the High Court refusing his application for leave to appeal stating simply "we agree with the reasons given by [the first judge]." However, it was to be noted that the competency of that petition had not been challenged. Thus that case was distinguishable from the present one. Looking at the provisions of section 194B and 194E of the 1995 Act the petitioner had a right to submit an application to the Commission, requesting a referral of his case to the Criminal Appeal Court. Campbell v Her Majesty's Advocate 2008 SCCR 847 was an example of such a procedure, in which a referral to the court had succeeded. However, it was not suggested that the availability of that procedure had the effect of eliminating a petitioner's right to seek the exercise of the nobile officium.

[15] In a separate submission, the Advocate depute relied upon the provisions of section 192(3)(b) of the 1995 Act, which provides that no conviction, sentence, judgment, order of court or other proceeding whatsoever in or for the purposes of summary proceedings under the act, where the accused had legal assistance in his defence, should be suspended or set aside in respect of any objections to the competency or admission or rejection of evidence at the trial in an inferior court, unless such objections were timeously stated. The position had been that the matters which the petitioner contended had not been considered by the sifting judges ought to have been made the subject of an objection to the admission of identification evidence from the witness Benton. No such objection had been taken and accordingly the remedy sought could not be granted. Thus looking at the whole circumstances of the case, there was no need for the exercise of the nobile officium.

[16] Counsel for the petitioner replied in relation to the issue of the competency of the petition. His position was that neither of the bases for the Crown's objection to the competency of the petition was sound. The Commission did not afford a remedy of any kind to the petitioner. If an application were made to them, they would consider it and, if they concluded that a miscarriage of justice might have occurred and that it was in the interests of justice that a reference should be made, in the exercise of their discretion, make a reference to the court. However, the petitioner had no right to require the Commission to make such a reference. As regards the respondent's reliance upon section 192(3) of the 1995 Act, it was not an answer to the petition. What had been sought to be raised by the petitioner in the present case went well beyond anything that might have been articulated in an objection to evidence. It might be thought that the decision in Cochrane petitioner 2006 SCCR 213 undermined the petitioner's contentions. However that was not so; that case could be distinguished from the circumstances of the present one, since in it, by the time that the matter came before the court in a petition to the nobile officium, the case had been considered by the Commission, which consideration had not resulted in a reference to the court.

[17] In reply on the issue of competence, the Advocate depute drew to our attention the fact that the material contained in the solicitor's letter of 13 January 2005 had, in fact, been part of the Stated Case, in respect that it was reflected, along with other material, in the adjustments to that case proposed to the Sheriff by the petitioner, but rejected by him, which had been appended to the case in pursuance of section 179(7)(a) of the 1995 Act. It was inevitable that the judges involved in the second sift procedure would have been aware of that situation.

[18] After giving some consideration to the issue of the competence of the petition, we reached the conclusion that we could not resolve that issue without hearing such submissions as the parties might wish to make upon the merits of the petition. Accordingly we followed that course. We were again addressed by counsel for the petitioner. He contended that, in the light of the material contained in the Stated Case and, in particular the rejected adjustments, it should have been obvious to the judges handling the second sift that the appeal was arguable. At the time when the petitioner's trial had taken place, the appeal to the Judicial Committee of the Privy Council in Holland v Her Majesty's Advocate 2005 SCCR 417 had been outstanding awaiting decision. It was clear that at that stage the issue of dock identification was sensitive and controversial. It was accepted that these matters had been raised at the stage of the adjustment of the Stated Case, but the reasons of the Sheriff for refusing to accept the proposed adjustments were unsound. All of that should have been obvious to the sifting judges, yet nothing had been said by them about it. Adequate reasons for the refusal of the petitioner's application for leave to appeal had not been furnished. There was no dispute that he was entitled to receive adequate reasons for refusal. The first sifting judge had taken a very limited view of the nature of the case, focusing upon the issue of whether there was evidence to justify the making of finding in fact 6. However, that was not the only significant issue in the case. What was now required was that the case should be remitted of new to the second sift process, in which consideration should be given to all possible grounds of appeal.

[19] In reply the Advocate depute emphasised that the petitioner's prosecution had been brought under summary procedure. Decision making on applications for leave to appeal could properly reflect the summary nature of the proceedings. The reasons given for the refusal of the petitioner's application were adequate in all the circumstances. It was the position that adjustments proposed to a stated case, but rejected, could be taken into account by the Criminal Appeal Court as appeared from Ballantyne v MacKinnon 1983 S.C.C.R. 97 and Amoco (UK) Exploration Company v Frame [2008] HCJAC 49. The statutory procedures had been operated in a proper manner. The nobile officium could not be used to subvert those procedures and to accord to the petitioner the opportunity for what might be called a third sift. The scope of the nobile officium of the court in criminal matters had been clearly explained in MacPherson petitioner 1989 S.C.C.R. 518 at page 522 by Lord Justice General Hope, as he then was. Applying that approach to the matter, it was evident that the present case was not a suitable one for the exercise of the nobile officium. Holland v Her Majesty's Advocate would have had no impact on the present case. There was no question of a failure to identify at any identification parade.

The decision

[20] In MacPherson petitioner, at page 522, Lord Justice General Hope explained in some detail the nature of the jurisdiction of this court under the nobile officium. He stated:

"Its scope is limited by the principle which is now well settled that the power will only be exercised where the circumstances are extraordinary or unforeseen and where no other remedy or procedure is provided by the law: Anderson, petitioner, per Lord Justice General Emslie at page 240. We were referred to a number of decisions both of this court and in the Court of Session which illustrate this principle and its application to a variety of circumstances. In the context of the present case it is necessary to mention only a few of these examples. It is clear that the nobile officium cannot be exercised in order to override the express provisions of a statute, or where to do so would conflict with statutory intention, express or clearly implied: Adair v Colville & Sons, per Lord Justice Clerk Scott-Dickson at page 677; Anderson at page 241."

[21] In the debate before us, the Advocate depute advanced two reasons why the nobile officium could not competently be invoked in the present case. The first was based upon the existence and functions of the Commission. The nature and functions of the Commission are set out in Part X A of the 1995 Act. Those sections, which formerly applied only in relation to convictions on solemn procedure have now been extended to cover convictions under summary procedure, by section 194E of the Act. It is evident from section 194B that the Commission "may, if they think fit, at any time...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 section 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."

In my opinion, it is clear from these provisions in particular that the Commission have a wide discretion in relation to whether any particular case should be referred to the court. I do not think that the possibility that that discretion may be exercised in favour of an applicant can properly be seen as a "remedy" in the sense that that word was used by Lord Justice General Hope in the passage that I have quoted from MacPherson petitioner. I consider that what was being referred to there was a judicial remedy. Under the statutory provisions applying to the Commission, the applicant has no right actually to have a case referred to the court; the only right that he possesses is to have a case considered for a possible reference by the Commission, an administrative body. For these reasons, I reject the respondent's first submission.

[22] The second basis upon which it was argued that the present petition was incompetent was that the remedy sought collided with the terms of section 192 (3) of the 1995 Act. I reject that contention also. The matters which the petitioner claimed appeared not to have been considered by the sifting judges, reflected in the rejected adjustments and the solicitor's letter of 13 January 2005, did not appear to me to be matters which could have been made the subject of objections to a line of evidence, or, even if some part of them might have been, not all of them could have been. In these circumstances the remedy sought in this petition does not appear to me to conflict with the restriction imposed by section 192 (3) of the Act. For these reasons, I conclude that the present petition is a competent application to the nobile officium.

[23] I turn now to consider whether, having regard to the circumstances described, it is appropriate for that remedy to be granted. In this connection, there was no dispute that, in connection with the procedure for the obtaining of leave to appeal in cases under summary procedure, in the event of a refusal of such leave, an applicant is entitled to receive reasons for the refusal that are adequate. In my view, in any event, that was recognised in McSorley petitioner. In the present case, the reasons given by the single judge who dealt with the application for leave in the first instance did not include any reference to the several points of criticism raised in the rejected adjustments appended to the Stated Case. When the time came for the three judges of the High Court to consider the petitioner's appeal to the second sift, because those judges couched the reason for their decision exclusively by reference to the reasons given by the single judge at the first sift, which they were, in principle, entitled to do, their decision too, in my opinion, must be seen as expressing no reasons in relation to the several matters, first of all, raised in the rejected adjustments and subsequently expressed in part in the solicitor's letter of 13 January 2005. In particular, none of the reasons stated deals with the issue of dock identification. I have come to think that this particular shortcoming in the reasons given by the three judges who made their decision in relation to the second sift amounts to a denial to the petitioner of his right to have furnished to him adequate, albeit succinct, reasons for the refusal of his application. I am persuaded that that shortcoming, in the very particular circumstances of this case, may properly be characterised as extraordinary circumstances productive of injustice, one of the situations in which, according to the statement of the law in MacPherson petitioners which I have quoted, would justify the exercise of the nobile officium.

[24] For these reasons, I would move your Lordships to grant the prayer of the petition to the extent of setting aside the decision made by the three judges of the High Court on 23 February 2005 refusing the petitioner's application for leave to appeal; also to order that the petitioner's application to the High Court for leave to appeal in terms of section 180 (4) of the 1995 Act should now be considered of new by that court.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lord Clarke Lord Emslie	[2009] HCJAC 67 Appeal No: XM11/08 OPINION OF LORD CLARKE in PETITION TO THE NOBILE OFFICIUM by JOHN AHMAR HUSSAIN AKRAM Petitioner; against HER MAJESTY'S ADVOCATE Respondent: _______

Petitioner: Shead, Advocate; Drummond Miller

Respondent: Ogg, Q.C.; Crown Agent

23 July 2009

[25] For the reasons given by your Lordship in the chair, with which I am in full agreement, I, too, consider that the prayer of the petition should be granted to the extent of setting aside the decision made by the three Judges of the High Court on 23 February 2005 and that an order should be made that the petitioner's application for leave to appeal should now be considered of new by that Court.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lord Clarke Lord Emslie	[2009] HCJAC 67 Appeal No: XM11/08 OPINION OF LORD EMSLIE in PETITION TO THE NOBILE OFFICIUM by JOHN AHMAR HUSSAIN AKRAM Petitioner; against HER MAJESTY'S ADVOCATE Respondent: _______

Petitioner: Shead, Advocate; Drummond Miller

Respondent: Ogg QC; Crown Agent

23 July 2009

[26] With great regret, I find myself unable to concur in the conclusion which has been reached by your Lordships in this case.

[27] In McSorley, Petitioner, this court was prepared to proceed on the basis of a Crown concession that recourse to the nobile officium may, in appropriate circumstances, be available in the context of the statutory sifting process for criminal appeals. For present purposes, however, it is in my view unnecessary to determine whether that concession was rightly made, or to explore the limits within which such recourse may be thought competent. I am inclined to share your Lordships' concerns as to the soundness of the principal grounds on which competency was challenged by the respondent at the hearing of this appeal, namely (i) the potential availability of a reference by the Scottish Criminal Cases Review Commission under sections 194B-E of the 1995 Act, and (ii) the statutory bar, under section 192(3)(b), against summary appeals based on alleged inadmissibility of evidence where no timeous objection was taken at the trial. Nevertheless, where the matter of competency was otherwise only briefly argued and, even on the stated grounds of challenge, the court was not favoured with anything like a full citation of authority, it would in my judgment be best to await an appropriate future case in which the whole issue could be considered and, if necessary, determined after full argument.

[28] Even if the potential competency of recourse to the nobile officium in the context of the statutory sifting procedure were to be assumed in the petitioner's favour, I would regard this as an entirely unsuitable case for the exercise of the court's equitable jurisdiction. As the Lord Justice General (Hope) re-affirmed in MacPherson, Petitioner:

"(The) scope (of that jurisdiction) is limited by the principle which is now well settled that the power will only be exercised where the circumstances are extraordinary or unforeseen and where no other remedy or procedure is provided by the law: ... it is clear that the nobile officium cannot be exercised in order to override the express provisions of a statute, or where to do so would conflict with statutory intention, express or clearly implied ... ".

It is therefore important, in my view, to restrict the availability of this special remedy to cases which, in their context, are of a truly exceptional or unforeseen character, and also to circumstances in which some obvious injustice plainly calls for judicial intervention. Recent experience suggests that the nobile officium is increasingly being invoked by appellants where such features are not present, and in my judgment the court must be vigilant to restrain misuse, and consequent erosion, of this special remedy. Recourse to the nobile officium should not be seen as a convenient and casual means of reopening the merits of appellate decisions which ought to be final.

[29] Against that general background I consider that the present application should be refused (i) because, in the context of the statutory sifting procedure, the matters complained of are neither extraordinary nor unforeseen; (ii) because the petitioner has failed to identify any prima facie material injustice requiring judicial intervention; and (iii) because in the whole circumstances no sound basis for the exercise of the court's equitable jurisdiction has been made out.

[30] Under section 187 of the 1995 Act, the sifting procedure for summary appeals is itself of an essentially summary nature. Parliament has provided for the whole exercise to be conducted by reference to written materials only; the relevant time limits are short; a straightforward test of arguability applies; no reasons or comments are required where leave to appeal is granted; and in practice only the briefest of reasons are required or expected in the event of leave to appeal being refused. By virtue of subsections (1), (4) and (7) in particular, no more than two attempts to obtain leave are permitted, and prima facie the statute envisages that the decisions ultimately reached will be final even if, in fact or in law, they may be thought mistaken.

[31] As was conceded in argument before us, it must be presumed that sifting judges have read and taken account of the written materials before them at every stage of the process, and as a general rule it is only to stated grounds of appeal, or to particular questions focused in a stated case, that specific attention need be directed. Under section 182(3) of the Act, for example, special leave must be sought, on cause shown, before any new issue can be introduced into an appeal by stated case. It may be that sifting judges are permitted, and indeed encouraged, to grant leave if any obvious additional point of law strikes them as arguable on a consideration of the whole papers, but for my part I am not prepared to hold that sifting judges are under any positive legal obligation, breach of which may be founded on ex post facto, to search out and identify additional grounds which appellants and their advisers have not themselves timeously, and in proper form, seen fit to raise.

[32] With these considerations in mind, I do not consider that the decision and reasoning of the first sift judge in this case can be faulted in any way. In my view he was legitimately entitled to concentrate on the particular issues which were raised in the stated case, and if he did not identify any further arguable point in the papers before him I do not think that he can now be criticised on that score. Significantly, counsel for the petitioner did not seek to argue that the first sift decision should be set aside as deficient, recognising perhaps that it bore to cover, not only the sufficiency of evidence to support finding in fact 6, but also the Sheriff's entitlement to make all of the findings in fact and ultimately to convict the petitioner. In any event, as it seems to me, there must be implied into any sifting decision a statement to the effect that no other arguable basis for an appeal has been identified on the materials submitted. This would fairly reflect the reality of the sifting process, and the alternative - mechanistic formal confirmation along similar lines in every case - would to my mind serve no useful purpose.

[33] As regards the second sift decision by three senior and experienced judges, they must in the first instance be presumed to have taken account of the letter which was submitted on the petitioner's behalf once leave had been refused at the first sift stage. This was, after all, the letter which engaged the second sift procedure, and without which the earlier refusal of leave would have become final. No doubt the decision of the second sift judges referred back to that refusal without explicitly mentioning the letter in question, but in my view that decision, just as much as the first sift refusal, must be read subject to the presumption and implicit confirmation to which I have already referred. The points contained in the letter were, of course, also evident among the Sheriff Court papers submitted to, and considered by, the first sift judge.

[34] Against that background, I do not believe that the petitioner is entitled to complain of any material deficiency in the second sift decision. In McSorley, Petitioner, where the circumstances were not dissimilar in that the second sift judges essentially had the same material before them as the first sift judge, the court refused to exercise the nobile officium in the petitioner's favour. Along comparable lines, I am unable to accept that the absence of any explicit reference to a letter which the second sift judges must be presumed to have taken into account should be regarded as something so extraordinary and unforeseen as to permit recourse to the nobile officium here. To hold otherwise would in my view run the risk of subverting the statutory sifting process as envisaged by Parliament, and of introducing an inappropriate third stage over and above what was enacted as a two-stage process. More generally, I consider that it would be damaging to the statutory scheme for criminal appeals if the nobile officium could be invoked to call under review any supposed failure by sifting judges (or perhaps even by the appeal court itself) to deal explicitly with points which were neither focused as specific grounds of appeal, nor as questions timeously and properly raised in a stated case.

[35] In any event, judging matters on a prima facie basis, I do not consider that the issues raised in the petition can be said to hold out any worthwhile prospect of success on appeal. The Privy Council in Holland have made it clear that, subject to appropriate safeguards, dock identification remains competent and admissible even where the witness concerned may previously have failed to pick out the accused at a formal identification parade. A fortiori, it must remain competent and available where any perceived conflict or uncertainty arises from an informal witness statement recorded by a police officer, and so far as safeguards are concerned it seems to me that these are even more evidently available in the context of a summary trial, conducted before an experienced sheriff, than in the context of a jury trial where appropriate directions and guidance are required. Accordingly, even if it could properly be concluded that the second sift judges had failed to address the points mentioned in the letter, I would not regard these points as having any substance now. There is no reason to think that the sheriff was not mindful of his obligation to secure a fair trial for the petitioner, both at common law and by virtue of article 6 of the European Convention on Human Rights, and subject to that it was for him to decide, as a matter of credibility and reliability, whether or not to accept the dock identification of which the petitioner now complains. As it seems to me, the identification of any material injustice to the petitioner becomes even harder when it is borne in mind that reliance on dock identification was not challenged on his behalf at the trial; that no submission of no case to answer was made at the conclusion of the Crown case; that the issue is even now not focused in the stated case; and that neither the petitioner's summary conviction, nor the sentence which followed, can be regarded as matters of unusual gravity.

[36] Turning finally to the wider equities of the situation, it is in my view highly significant that this petition was not presented until almost twelve months had elapsed after leave to appeal was refused at the second sift. In the context of summary criminal appeal procedures where statutory time limits are measured in days and weeks, I would regard an unexplained delay of that magnitude as grossly excessive and as precluding any appropriate recourse to the nobile officium in the present case. This conclusion is reached all the more easily where, as previously indicated, the petitioner's appeal is to my mind prima facie without substance and any exercise of the nobile officium in his favour would go beyond the recognised bounds of that special remedy.

[37] For all of these reasons, I consider that the prayer of the petition should be refused.