Shead, MC Mackenzie; McClure Collins

Mackay AD; The Crown Agent

4 September 2009

[1] On 10 February 2004, at the High Court in Glasgow, the petitioner was convicted, along with a co-accused, of a charge of murder. He was sentenced to life imprisonment, with a punishment part of 17 years. The murder took place on 16 November 2002. The circumstances of the offence, in short, were that the deceased had gone with the petitioner and his co-accused in search of an attic flat in Hamilton. They climbed up a fire escape onto the roof of a building. The deceased came to fall off the roof in the course of an altercation with the co-accused. He ended up in a courtyard. His legs were fractured and he could not move. The petitioner and his co-accused repeatedly hit him with a variety of different instruments which came to hand. The petitioner in particular admitted stabbing the deceased in the face with a fluorescent light tube. The deceased, although he survived for two hours or thereby, died as a result of blows to his head, and not the fall from the roof. Having killed the deceased, the petitioner and his co-accused proceeded to buy some petrol and attempted to burn his body; offences of which the petitioner was also convicted.

[2] By Note of Appeal dated 14 May 2004, the petitioner appealed against his conviction for murder. There were two grounds of appeal. Both complained solely of misdirections by the trial judge in his charge to the jury; notably in relation to mixed statements by accused persons and majority verdicts. Leave to appeal was granted at first sift on 29 June 2004. On 21 February 2006 the Court refused the appeal against conviction ([2006] HCJAC 18). Although the Court held that the trial judge had misdirected the jury on statements, it concluded that the misdirection had not been material and no miscarriage of justice had occurred. On 30 November 2006, the petitioner's appeal against sentence was heard and the punishment part was reduced to 15 years.

[3] The petitioner applied to the Scottish Criminal Cases Review Commission to have his case referred back to the Court, presumably on the grounds of a miscarriage of justice. The Commission declined to do so. The Court was not favoured with the contents of the Commission's statement of reasons, said to be dated December 2007.

[4] On 19 August 2008, the petitioner lodged the present petition to the nobile officium. This states in short compass that, during the course of the hearing of the appeal against conviction, the advocate depute had "conceded that there was insufficient evidence" to support the part of the libel relating to pushing the deceased off the roof, of which the appellant was convicted. Therefore, it is stated, the Court ought to have deleted that part of the libel from the conviction. There then follows the following:

"It is obvious from the directions given that it was open to the jury to have regard to the whole evidence of what occurred on the roof to decide whether the petitioner had the mens rea for murder. It cannot be said that, if the jury had appreciated the true position, they would necessarily have convicted the petitioner of murder".

[5] It is averred that the petitioner was denied a fair hearing in terms of Article 6 of the European Convention because the Court did not give a reasoned judgment on the issue raised in the petition. On the strength of these cryptic averments the petitioner craves the Court:

"to set aside the decision complained of; to allow the appeal against conviction to be re-argued on the basis of the concession made".

[6] The Court invited the petitioner to make submissions on the competency of his petition, especially in light of its recent decision in McIntyre v HM Advocate 2009 SCCR 719. The somewhat extraordinary response from counsel for the petitioner was to argue that the Court did not require to follow that decision; because that decision was wrong. It was asserted that the Court in McIntyre had not taken into account the terms of section 3 of the Human Rights Act 1998, which required the Court to read legislation in a manner compatible with European Convention rights (Ghaidan v Godin-Mendoza [2004] 2 AC 557, Lord Nicholls of Birkenhead at para 26). Section 124(2) of the Criminal Procedure (Scotland) Act 1995, which played an important part in the decision in McIntyre, could be ignored as incompatible with the Article 6 rights of persons who sought to challenge their convictions. The correct interpretation of the section was that it was concerned only with the prevention of appeals to the House of Lords (Montgomery v HM Advocate 2000 SCCR 1044, Lord Hope of Craighead at 1088).

[7] It was submitted that the Court could re-open decisions taken in conviction appeals. It had done so in Hoekstra v HM Advocate (No 6) 2002 SCCR 135 at paras [38-39] and most recently in Akram Petnr 2009 SLT 805. There were four situations where it did so, notably: (i) the restoration of appeals to the Rolls after they had been deemed abandoned; (ii) the quashing of arrest warrants, where reasonable explanations for failures to appear at court diets were tendered; (iii) the revival of cases where inadequate reasons had been given by sifting judges refusing leave to appeal (McSorley, Petnr 2005 SCCR 508); and (iv) the quashing of orders which were in conflict with Convention rights. The powers of the Court were the same as those of the House of Lords in England, which could rescind or vary earlier decisions (R v Bow Street Magistrate ex parte Pinochet (No 2) [2000] 1 AC 119, Lord Browne-Wilkinson at 132). The present case was about access to the courts, which the petitioner required to have. It was accepted that if Cochrane, Petnr 2006 SCCR 213 had been correctly decided then it too, like McIntyre, was inconsistent with the petitioner's position. It was accepted that there exists a principle of finality. But that principle was not dependent upon section 124(2) of the 1995 Act. Rather, it could be achieved through the application of acquiescence in convictions (Robertson v Frame 2006 SCCR 150).

[8] Finally, the petitioner submitted that a Devolution Issue arose as the Lord Advocate had lodged answers to the petition challenging its competency. However, the Advocate Depute was not invited to make any submissions and did not do so.

[9] This petition is incompetent. It is not necessary to indulge in any lengthy analysis of the origins and extent of the jurisdiction of the appellate jurisdiction of the High Court but it is important to observe in limine that at common law there was no appeal from, or other method of review of, cases prosecuted on indictment (vide Hume Commentaries on Crimes (Bell ed) ii, 504). The appellate jurisdiction of the High Court in this area is entirely statutory; stemming from the Criminal Appeal (Scotland) Act 1926 (c 15) and now provided for exclusively in the 1995 Act (s 103 et seq.). The petitioner has exhausted his rights under these provisions.

[10] Once an appeal against conviction on indictment has been finally determined, it is not competent for this Court to review that decision, either at the instance of an unsuccessful appellant or the Crown, except under the express statutory powers governing references from the Scottish Criminal Cases Review Commission. That is the effect of the statutory scheme as grafted onto the common law. It is also the precise effect of section 124 of the 1995 Act as authoritatively determined most recently in McIntyre v HM Advocate (supra at para [48]). That decision is binding on this Court. Furthermore, the present application cannot be distinguished from that in Cochrane Petnr (supra), where it was made abundantly clear that a convicted person, whose appeal against conviction has been refused, cannot attempt to have that refusal reviewed by petition to the nobile officium (para [14]). That case is also binding on this court.

[11] The petitioner made no attempt to distinguish McIntyre or Cochrane. He simply submitted that they had been wrongly decided and should not be followed. That is not a good argument in law. The principle of stare decisis applies. Such submissions as have been presented to the Court are a negation of that principle and essentially just ignore what the law is in favour of an argument about what, in the petitioner's view, the law ought to be. In that sense, what were presented to the Court were not legal submissions at all.

[12] The Court was not addressed in any detail on the scope of the jurisdiction of the House of Lords in English criminal cases, as accepted by the parties in Pinochet (supra). It might be surprising if the jurisdiction were identical to that of the High Court of Justiciary, even if Hoekstra v HM Advocate (No 2) 2000 JC 391 illustrates that the Court does have some power to deal with a Pinochet situation If an appeal is before the High Court, it is certainly competent for the Court to review decisions taken by it in advance of a final determination of the case, should circumstances change (Lord Justice General (Rodger) at para [13] in Hoekstra; cf Lord Browne-Wilkinson in Pinochet at p 132). It may also be possible to correct decisions de recenti, if a clerical or administrative error has occurred. But it is an entirely different matter if a final decision to allow or to grant an appeal on its merits has been made. That is what the petitioner seeks to do, some years after the refusal of his appeal.

[13] In McSorley (supra), no point of competency was raised or argued. In any event, the petition to review the decision of the second sift judges failed. Akram (supra) was a summary case, where the procedures for review differ and to which section 124 does not apply. It can be distinguished simply on that basis. It is worthy of comment, however, that the Crown objected to the competency of that petition on only two rather weak grounds. The essential point of principle, which involves finality, was not, as Lord Emslie remarked in his dissenting opinion (para [27]) argued. He continued: "even on the stated grounds of challenge, the court was not favoured with anything like a full citation of authority". It may be that, as Lord Emslie also commented, the issue in summary procedure may require to be revisited in an appropriate future case.