Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Kingarth Lord Eassie Lord Reed Lady Dorrian	[200910] HCJAC 8 Appeal Nos: XM23/08; XM7/09; XM16/09; XM18/09 and XM20/09 DRAFT OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in PETITIONS TO THE NOBILE OFFICIUM by (1) WILLIAM BECK, (2) NAT FRASER, (3) LUKE MITCHELL, (4) COLIN MURPHY and (5) ALEXANDER GALLAGHER and PETITIONS UNDER THE HUMAN RIGHTS ACT 1998 by (1) NAT FRASER and (2) ALEXANDER GALLAGHER Petitioners: _______

Appellants (Beck): Shead, Richardson; Barony Law Practice, Edinburgh

(Fraser): Shead, Smith; John McAuley & Co., Glasgow

(Mitchell): Party

(Murphy): Shead, Smith; Barony Law Practice, Edinburgh

(Gallagher): Shead, Mackenzie; Capital Defence Lawyers, Edinburgh

Respondent: Crown Agent

29 January 2010

Introduction

[1] Each of the petitioners has presented a petition in which he seeks to invoke the jurisdiction of the High Court known as its "nobile officium". These petitions were in the first instance placed before a single judge. In the cases of each of Beck, Fraser and Mitchell the relative single judge refused to grant a warrant for service on the ground that the petition was incompetent; each of these petitioners seeks a review by a larger bench of that decision. In the cases of Murphy and Gallagher the petitions have been appointed administratively to be heard by the enlarged bench; the issue of competency arises also in each of these cases. The Lord Advocate is not, so far, a party to these proceedings and has not been invited to address the court on the issue of competency or on any other issue. She has taken no action in these processes and her position must be taken as reserved on all issues which arise.

[2] Mitchell was unrepresented at the hearing. Each of the other petitioners was represented by Mr Shead as leading counsel, covered by junior counsel - Mr Richardson for Beck, Miss Smith for Fraser and Murphy and Miss Mackenzie for Gallagher. We have decided to grant Mitchell's request for an adjournment of his case so that he can obtain legal advice and, if appropriate, representation. No doubt that advice will take account of the views expressed in this Opinion.

[3] In the cases of Fraser and Gallagher separate petitions purportedly "under the Human Rights Act 1998" were also lodged. Again a question of their competency arises. We shall deal with these later in this Opinion.

[4] The petitions based on the nobile officium give rise to important questions touching upon the scope of that jurisdiction, including its scope having regard to section 6(1) of the Human Rights Act 1998 which renders it unlawful for a public authority, including any court, "to act in a way which is incompatible with a Convention right". They also give rise to related questions about the finality of decisions of this court.

The finality of decision

[5] The common law as to the finality of decisions of the High Court is explained in Hume - Commentaries (1844) II page 504:

"... [sentences] of the Court of Justiciary are not subject to revisal in any form of process, either before themselves, or any other tribunal, not excepting even the House of Lords ...".

A number of cases in support of that proposition are referred to by Hume. In a later passage (page 508) the learned author states:

"... for the same reasons which hinder the Lords of Justiciary from receiving a petition against any interlocutor of theirs, that Court do not enjoy the power of reviewing their own sentences, or orders, by suspension or reduction, or any other form of process. And this is true, not only of such as are pronounced by the whole Bench of Judges, or a quorum of their number, sitting at Edinburgh, but equally so of the sentence or interlocutor even of a single Judge, given on Circuit Ayre."

Any relief from execution of a sentence or order could lie only in the exercise of the Royal prerogative of mercy. Consistently with that authority a petition to the House of Lords against orders of the High Court of Justiciary was subsequently held to be incompetent (McIntosh v Lord Advocate (1876) 3 R (HL) 34; see also McDonald - Criminal Law of Scotland (1^st ed.) (1867) page 596).

[6] The finality of decisions of the High Court was confirmed by section 72 of the Criminal Procedure (Scotland) Act 1887 which provided:

"All interlocutors and sentences pronounced by the High Court of Justiciary under the authority of this Act shall be final and conclusive, and not subject to review by any court whatsoever, and it shall be incompetent to stay or suspend any execution or diligence issuing forth of the High Court of Justiciary under the authority of the same."

(see McDonald op. cit. (3^rd ed.) (1894) page 552).

[7] When jurisdiction to entertain appeals against conviction and/or sentence in the High Court was introduced by the Criminal Appeal (Scotland) Act 1926, the finality, subject to appeals under that statute, was retained. Section 17 provided:

"(1) Subject to the provisions of the immediately preceding section of this Act, all interlocutors and sentences pronounced by the Court under this Act shall be final and conclusive and not subject to review by any Court whatsoever and it shall be incompetent to stay or suspend any execution or diligence issuing from the Court under this Act.

(2) Section seventy-two of the Criminal Procedure (Scotland) Act, 1887 (50 & 51 Vict. c. 35), shall have effect subject to the provisions of this Act."

Section 16 of the 1926 Act provided:

"Nothing in this Act shall affect the prerogative of mercy, but the Secretary for Scotland on consideration of any petition for the exercise of His Majesty's mercy, having reference to the conviction of a person on indictment or to the sentence (other than sentence of death) passed on a person who has been so convicted, may, if he thinks fit, at any time, and whether an appeal or an application for leave to appeal against such conviction of sentence has or has not previously been heard and determined by the Court, either -

(a) refer the whole case to the Court and the case shall then be heard and determined by the Court as in the case of an appeal under this Act; ...".

Accordingly, there was introduced a mechanism whereby a person convicted on indictment might, subject to the discretion of the Secretary for Scotland, have his case referred to the High Court with the possibility of his conviction or sentence being reversed by that court.

[8] The consolidating statute, the Criminal Procedure (Scotland) Act 1975, re-enacted section 17(1) of the 1926 Act and section 17(2) of that Act (as read with section 72 of the 1887 Act) as section 262 and section 281 respectively.

[9] When further consolidation was in prospect in 1995 the continuity of the pre-existing statutory law was provided for by section 2(1) of the Criminal Procedure (Consequential Provisions) (Scotland) Act 1995 which, while providing for the repeal among other enactments of the 1887 Act, provided:

"The substitution of the consolidating Acts for the repealed enactments does not affect the continuity of the law."

[10] The relative consolidating Act (the Criminal Procedure (Scotland) Act 1995) provided in a single section for the finality of proceedings and for references by the Secretary of State. Section 124 (as originally enacted) was in the following terms:

"(1) Nothing in this part of this Act shall affect the prerogative of mercy.

(2) Subject to subsection (3) below, every interlocutor and sentence pronounced by the High Court under this Part of this Act shall be final and conclusive and not subject to review by any court whatsoever and it shall be incompetent to stay or suspend any execution or diligence issuing from the High Court under this Part of this Act.

(3) The Secretary of State on the consideration of any conviction of a person or the sentence (other than sentence of death) passed on a person who has been convicted, may, if he thinks fit, at any time, and whether not an appeal against such conviction or sentence has previously been heard and determined by the High Court, refer the whole case to the High Court and the case shall be heard and determined, subject to any directions the High Court may make, as if it were an appeal under this Part of this Act.

(4) The power of a Secretary of State under this section to refer to the High Court the case of a person convicted shall be exercisable whether or not that person has petitioned for the exercise of Her Majesty's mercy.

...".

[11] The Crime and Punishment (Scotland) Act 1997 provided for, among other things, the establishment of the Scottish Criminal Cases Review Commission. A new Part (Part XA) was incorporated into the 1995 Act. That Part included section 194B which now provides:

"(1) The Commission on the consideration of any conviction of a person or of the sentence (other than sentence of death) passed on a person who has been convicted on indictment or complaint may, if they think fit, at any time, and whether or not an appeal against such conviction or sentence has previously been heard and determined by the High Court, refer the whole case to the High Court and the case shall be heard and determined, subject to any directions the High Court may make, as if it were an appeal under Part VIII or, as the case may be, Part X of this Act.

(2) The power of the Commission under this section to refer to the High Court the case of a person convicted shall be exercisable whether or not that person has petitioned for the exercise of Her Majesty's prerogative of mercy."

(Parts VIII and X are concerned with appeals in solemn and in summary cases respectively).

Section 194D(1) provides:

"A reference of a conviction, sentence or finding may be made under section 194B of this Act whether or not an application has been made by or on behalf of the person to whom it relates."

[12] The 1997 Act made consequential provisions amendments to section 124 of the 1995 Act (including abolition of references by the Secretary of State) which now provides:

"(1) Nothing in this Part or Part XA of this Act shall affect the prerogative of mercy.

(2) Subject to Part XA of this Act ... every interlocutor and sentence pronounced by the High Court under this Part of this Act shall be final and conclusive and not subject to review by any court whatsoever and ... it shall be incompetent to stay or suspend any execution or diligence issuing from the High Court under this Part of this Act."

The Human Rights legislation

[13] The Human Rights Act 1998 provides:

"3(1) So far as it is possible to do so, primary legislation ... must be read and given effect in a way which is compatible with Convention rights.

(2) This section -

(a) applies to primary legislation ... whenever enacted.

...

7(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may -

(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or

(b) rely on the Convention right or rights concerned in any legal proceedings,

but only if he is (or would be) a victim of the unlawful act.

(2) In subsection (1)(a) 'appropriate court or tribunal' means such court or tribunal as may be determined in accordance with rules; and proceedings against an authority include a counterclaim or similar proceeding.

...

(6) In subsection (1)(b) 'legal proceedings' includes -

(a) proceedings brought by or at the instigation of a public authority; and

(b) an appeal against the decision of a court or tribunal.

...

(9) In this section 'rules' means -

...

(b) in relation to proceedings before a court or tribunal in Scotland, rules made by the Secretary of State for those purposes.

...

8(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.

9(1) Proceedings under section 7(1)(a) in respect of a judicial act may be brought only -

(a) by exercising a right of appeal;

(b) on a ... petition for judicial review; or

(c) in such other forum as may be prescribed by rules.

(5) In this section -

...

'judicial act' means a judicial act of a court and includes an act done on the instructions, or on behalf, of a judge; and

'rules' has the same meaning as in section 7(9)."

[14] The Human Rights Act 1998 (Jurisdiction) (Scotland) Rules 2000, made under sections 7 and 9 of the 1998 Act, provide:

"3 ... the appropriate court or tribunal for the purposes of section 7(1)(a) of the Act is any civil court or tribunal which has jurisdiction to grant the remedy sought.

4(1) The Court of Session is prescribed for the purposes of paragraph (c) of subsection (1) of section 9 of the Act in cases where proceedings in respect of the judicial act in question could not, at any time since the date of that act, have competently been brought under paragraph (a) or (b) of that subsection.

...".

[15] Before addressing the legal issues which arise it is appropriate to summarise the factual circumstances of each of the petitioners as disclosed in their respective petitions.

The circumstances of the petitioners

[16] Beck was in March 1982 convicted after trial in the High Court of assault and robbery. He was sentenced to six years' imprisonment. He lodged grounds of appeal prepared by himself, which were subsequently elaborated. He was heard in person on 7 October 1982, when his appeal was refused. He did not have the benefit of legal aid for the purposes of his appeal. After serving his sentence he made an application to the Scottish Criminal Cases Review Commission but the Commission declined to refer his case to the High Court. Thereafter he made an application to the court under section 111(2) of the Criminal Procedure (Scotland) Act 1995 for an extension of the time within which intimation of a note of appeal might be given but on 31 March 2006 that application was, regard being had to the disposal of the case in 1982, refused as incompetent. He now presents a petition to the nobile officium asserting that the hearing of his appeal in 1982 was at common law unfair, with particular regard to the circumstance that he did not then have the benefit of legal aid. Certain other matters referred to in the petition were not advanced at the hearing.

[17] Fraser was in January 2003 convicted, after trial in the High Court, of the murder of his wife. He was sentenced to life imprisonment with a punishment part of twenty five years. He appealed against his conviction and against the length of the punishment part. On 6 May 2008 his appeal against conviction was refused. He subsequently abandoned his appeal against sentence. At the outset of the hearing of his appeal against conviction his counsel moved the court to allow late and amended consolidated grounds of appeal to be received. That document included an additional ground (directed to an alleged failure by the Crown to make due disclosure), with a related devolution minute. The court on 13 November 2007 refused the motion advising that it came too late, that sufficient grounds cause had not been shown and that the matters sought to be raised were adequately covered by the existing grounds of appeal. The appeal hearing continued. As noted above, onOn 6 May 2008 the court refused his appeal against conviction. He has now presented an application to the nobile officium on the basis that he was denied a fair hearing, or the appearance of a fair hearing, in relation to the refusal of his counsel's motion.on the basis, broadly, that following refusal of the motion in relation to the proposed amended ground of appeal the court decided the appeal without reference to the Human Rights Act 1998.

[18] Murphy was in October 2003 convicted after trial in the High Court of the murder of Thomas Peter Russell. He was sentenced to life imprisonment with a punishment part of thirteen years. He sought leave to appeal against his conviction on a single ground. Leave was refused by a single judge and, on an application under section 107(4) of the Criminal Procedure (Scotland) Act 1995, by the High Court on 12 May 2004. Murphy has now presented an application to the nobile officium. He maintains that, although the ground of appeal advanced made no reference to the trial judge's direction on provocation, there was an arguable ground in that respect which ought to have been specified by the judges who considered his note of appeal. He was thus, it is contended, denied a fair hearing.

[19] Gallagher was in January 2005 convicted after trial in the High Court of the murder of Gavin Wright. He was sentenced to life imprisonment with a punishment part of 15 years. He was granted leave to appeal against his conviction. On 20 August 2009 the court disposed of the appeal by setting aside the verdict of the trial court and quashing the conviction and granting authority to bring a new prosecution in accordance with section 119 of the Act (see Criminal Procedure (Scotland) Act 1995, section 118(1)(c)). That disposal followed the issuing of an opinion by the court in which it had indicated that the court would quash the convictions of the appellant, and of two other appellants, on new evidence grounds. The court found it unnecessary to deal with another ground of appeal sought to be advanced on behalf of Gallagher - based on an alleged failure by the Crown to perform its duty of disclosure. Advancement of that ground was dependent on the appeal being adjourned so that a proposed devolution minute might be framed and intimated to the Advocate General. The motion by the prosecutor for authority to bring a new prosecution had been opposed by all three appellants. Gallagher has now presented an application to the nobile officium of the court. His complaint in essence is that he was denied a fair hearing in that the court proceeded forthwith to hear counsel and thereafter to grant the Crown's motion, declining to grant to Gallagher an adjournment to allow his counsel to prepare submissions in relation to the other ground and to make the necessary intimation. and intimate a devolution minute in respect of submissions regarding his opposition to the Crown's motion.

[20] Each of the foregoing disposals by the High Court was on its face a final order in terms of the applicable statutory provisions.

The nobile officium

[21] The nobile officium of the High Court of Justiciary has a long history. Hume II, pages 59-60 notices the exclusive power of that court "of providing a remedy for all extraordinary occurrences in the course of criminal business", which he described as "this nobile officium, or right of superintendence" inherent in the Lords of Justiciary "as the supreme authority in criminal matters". He cites a number of examples of the exercise of that jurisdiction. He ends this discussion as follows:

"How far, and in what forms this Court may review the sentences of the inferior judges, and how far its own sentences are liable to review, will be seen afterwards, in treatment of the lawful means of preventing the execution of sentence." - a reference to the discussion at pages 504 and 508 referred to above.

Thus it is clear that, while the common law remedy of invoking the nobile officium ran in parallel with the common law rules about the finality of sentences and orders of the High Court of Justiciary, that remedy could not be invoked to circumvent the rules on finality.

[22] Alison - Practice (1833) at page 23 encapsulates the nobile officium as follows:

"The Court of Justiciary has the exclusive power of providing a remedy for all extraordinary or unforeseen occurrences in the course of criminal business, whether before themselves, or any inferior Court."

Again a number of instances are given. None of them suggests that the jurisdiction could be invoked in circumstances which modified the rule as to the finality of the High Court, which is expressed thus at page 677:

"No appeal is competent from the Court of Justiciary to the House of Lords; and it is only competent to obtain a remission of the sentence by pardon, or remission from the Crown, or reversal in the legislature."

[23] Moncrieieff - Review in Criminal Cases (1877) notices at page 264 that -

"... the High Court of Justiciary, as the Supreme Court in criminal matters has, in respect of its nobile officium, the power of interfering in extraordinary circumstances, for the purpose of preventing injustice or oppression ...".

[24] These authorities were referred to by the court in Anderson v HM Advocate 1974 SLT 229 when Lord Justice-General Emslie said at page 240:

"These classical descriptions of the power have been accepted by this court as authoritative in all cases in which the scope of its power under the nobile officium has been called in question, and as the cases show, have been interpreted to mean 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."

He then gives two examples of the exercise of the power and continues:

"In both these cases the power was exercised because no procedure or remedy of any kind was available to the petitioners. To complete this review of the nature, scope and limits of the power we have only to add that the nobile officium of this court, and for that matter of the Court of Session, may never be invoked when to do so would conflict with statutory intention, express or clearly implied (see Adair and Others v Colville, 1922 SC 672, 1922 SLT 532)."

The petition in that case was dismissed as incompetent, the court observing that, the petitioner having already unsuccessfully challenged by stated case his conviction on a summary complaint, it would be quite improper for the court to exercise its power under the nobile officium. While that observation was made against the express provision of section 68 of the Summary Jurisdiction (Scotland) Act 1954 (which provided that, once a stated case had been lodged, the appellant was held to have abandoned any other mode or review), it is consistent with the principle that where statute provides (whether expressly or implicitly) for the finality of a decision, review by invoking the nobile officium is not available.

[25] In Hoekstra v HM Advocate (No.2) 2000 SCCR 367 the High Court in the exercise of its nobile officium set aside a purported interlocutor of the same court (disposing of certain grounds of appeal). It did so (see in particular paras [13] and [24]) on the basis that, by reason of one of the three judges of the latter court being disqualified from sitting, that interlocutor was "invalid". The invalidity arose from the court being in the circumstances inquorate and accordingly incompetent to determine the issues before it. This approach was approved not disapproved in the Privy Council (Hoekstra v HM Advocate (No.4) 2000 SCCR 1121, per Lord Hope of Craighead at page 1126). Accordingly, although the order disposing of the relative grounds of appeal was, in terms of section 124 of the Act (and possibly additionally from the scheme of the statute as a whole) final and conclusive, the court could, having regard to the nature of the vice attaching to the interlocutor, set it aside in the exercise of the nobile officium.

[25] The court has also, in exercise of that jurisdiction, set aside an earlier interlocutor in which the court had gone beyond the powers conferred on it by the then current Procedure Act (the Criminal Procedure (Scotland) Act 1975 - see Allan, Petitioner 1993 SCCR 686). The availability of the jurisdiction to deal with an excess of powers conferred by a different statute was contemplated in Beattie, Petitioner 1992 SCCR 812, per Lord Justice General Hope at page 816. The analysis was that such was a case -

"where it could be said that the court had done something in the exercise of its appellate jurisdiction which it was not permitted to do by Parliament. In such a case there may be said to have been a circumstance which was unforeseen, because the statutory provisions for the finality of appeals assume that the appeal court will exercise its appellate jurisdiction in accordance with the statutes. The nobile officium may then be exercised to prevent such injustice or oppression as may result."

[26] On the other hand it is quite clear that the jurisdiction cannot be used to challenge a decision taken on the merits by the court it in its appellate capacity (Perrie, Petitioner 1991 SCCR 475) - including, it would appear, a decision taken by the court as to what was competent and appropriate for it to do (Beattie, Petitioner, at page 816).

Discussion

[27] Mr Shead submitted that the nobile officium could be exercised where the decision complained of, albeit final in terms of the Procedure Act, was either incompetent or "unlawful". He submitted that the invalidity of the decision set aside in Hoekstra v HM Advocate (No.2) could be viewed analysed as one of unlawfulness (either as being contrary to Article 6(1) or at common law). But we are satisfied that the passages from the judgment earlier referred to make it plain that the disqualification of one of the three judges rendered the appeal court inquorate and thus not competent to adjudicate on the matter before it.

[28] The principal thrust of Mr Shead's submission was to seek to persuade us that, if a decision of the High Court in its appellate capacity, ex facie final, was taken in a way which was incompatible with a Convention right, it was unlawful under section 6 of the Human Rights Act and consequently amenable to being set aside by the exercise of the nobile officium.

[29] The Human Rights Act makes express and detailed provision as to how Convention rights may be vindicated. Section 7(1)(a) provides that a victim of an unlawful act may "bring proceedings" under that Act against the public authority in question in the "appropriate court ...". But, in relation to judicial acts, such proceedings may be brought only in one of the three ways specified in section 9(1). An application to the nobile officium of the High Court is clearly not a petition for judicial review (a civil procedure). The High Court is not a forum prescribed for this purpose by rules; the Scottish Ministers have specified only the Court of Session, a civil court, for that purpose (the Human Rights Act 1998 (Jurisdiction) (Scotland) Rules 2000, para 4). Nor, in our view, is an application to the nobile officium of the High Court the exercise of a right of appeal; rather it is an application to the equitable jurisdiction of the court in circumstances where there is no right of appeal. It has been judicially observed (R v Kansal (No.2) [2002] 2 AC 69 per Lord Hope at para 63) that the "free-standing proceedings" envisaged by section 7(1)(a) are civil proceedings. This is confirmed by para 3 of the 2000 Rules which prescribes the appropriate court as "any civil court ... which has jurisdiction to grant the remedy sought". Mr Shead only faintly, and as a subsidiary argument, relied upon section 7(1)(a).

[30] He principally relied upon section 7(1)(b). That, however, is limited by the definition in section 7(6) of the expression "legal proceedings". These include (a) proceedings by or at the instigation of a public authority and (b) an appeal against a decision of a court or tribunal - neither of which encompasses a petition by an alleged victim of a violation of Convention rights. The definition is, admittedly, inclusive rather than exhaustive but the terms of section 7(6)(a) and the expression "rely on ... in any legal proceedings" suggest that what is envisaged under section 7(1)(b) is reliance defensively in proceedings brought by another (see R v Kansal (No.2), per Lord Hope at para 64). Reliance offensively in proceedings invoking the nobile officium does not fit within the relative concept. It matters not that such proceedings stem from or are consequential upon other (criminal) proceedings brought by the Lord Advocate.

[31] It follows from this analysis that this aspect of the Human Rights Act does not avail any of the petitioners. It also follows that the free-standing petitions by Fraser and Gallagher purportedly under the Human Rights Act are incompetent - as not falling within any of the three categories specified in section 9(1).

[32] However another strand of Mr Shead's submission falls to be noticed. That was that primary legislation, including the Criminal Procedure (Scotland) Act 1995, was now subject to the interpretative requirements of section 3 of the Human Rights Act. Accordingly, the finality provision, so ran the submission, now contained in section 124(2) of the 1995 Act fell to be read and given effect in a way which was compatible with Convention rights. That might involve reading down or otherwise modifying the meaning, and hence the effect, of that subsection (Ghaidan v Godin-Mendoza [2004] 2 AC 557, especially per Lord Nicholls of Birkenhead at paras 26-33). It was only interlocutors and sentences which were both competent and lawful (in the sense of compliant with section 6 of the Human Rights Act) which were immune from challenge on the ground of finality. If an interlocutor did not satisfy both these criteria, it could be set aside in the exercise of the nobile officium.

[33] It can be acknowledged that an interlocutor which is incompetently pronounced (as in Hoekstra v HM Advocate (No.2)) is open to challenge under the nobile officium. In that case, where the circumstances were extraordinary and unforeseen, the vice went to the root of the court's jurisdiction. But the proposition that the finality of an interlocutor is dependent on it being compliant with Convention rights is more difficult. Mr Shead acknowledged that a decision of the High Court in its appellate capacity which turned on the consideration and determination of a Convention issue would not be amenable to the exercise of the nobile officium - albeit it was asserted, or even if it was plain, that a "wrong view" had been taken. Something extraordinary and unforeseen in the nature, at least, of a more fundamental basic vice involving non-compliance with the Convention, - for example, fundamental non-compliance procedurally with the right under Article 6 to a fair hearing of the appeal - would, on any view, be required. This may have been the basis on which the court granted relief in the case of Niall Macdonald, 17 July 2008, unreported, in which no Opinion was issued. The same may be true of Doherty, Petitioner 2004 SCCR 63, where again no Opinions were issued but the court's interlocutor (at pages 74-5) records that the effect of the interlocutor in question (which was held to be ultra vires) was inevitably to deprive the petitioner of his right under Article 6. In McSorley, Petitioner 2005 SCCR 508 no argument was presented on the matter of competency.

[34] Section 3 of the Human Rights Act 1998 is concerned with interpretation, albeit at times radical interpretation. Mr Shead did not formulate how the terms of section 124(2) might be modified to make them Convention-compliant. Any modification would require to "go with the grain of the legislation" (Ghaidan v Godin-Mendoza, per Lord Rodger of Earlsferry at para 121 and per Lord Nicholls at para 33).

[35] In the event, it is unnecessary for us to reach a concluded view on this issue since none of the petitions begins to demonstrate any procedural vice which might, possibly, elide the finality provision.

[36] Although Beck did not in 1982 have the benefit of legal aid for the purposes of his appeal, the Convention did not at that time have domestic effect. There was nothing extraordinary at that time, when leave to appeal was not required, in appellants presenting appeals in person - many of which were without substance in law. No basis is advanced to defeat the operation of the finality provision.

[37] Fraser's complaint, in essence, is that the appeal court erred in deciding the appeal without reference to the Human Rights Act. This is on the face of it clearly an attack on the merits of the decision. On another view (albeit disavowed by counsel) his true complaint could be said to be that the court acted unfairly in dealing, as it did and for the reasons which it gave, with his counsel's motion to receive his proposed additional ground of appeal. But the court has a wide discretion, under section 110(4) of the 1995 Act, to allow or to disallow an appellant to found any aspect of his appeal on a ground not contained in his note of appeal; his its jurisdiction to allow additional grounds late is also conditional on cause being shown for that lateness. The exercise of such a discretion is an ordinary feature of appellate proceedings. The court was entitled, for the reasons it gave, to exercise its discretion in the way which it did. The finality provision has effect.

[38] Murphy complains that the judges who dealt with his application for leave to appeal against conviction failed to identify and to specify a ground of appeal which was not contained in his note of appeal, which had been prepared with professional advice. Leaving aside any question as to whether under the statute judges have an obligation to discover and specify arguable grounds not in the note of appeal, as against being entitled to do so (which we seriously doubt), a decision to refuse leave to appeal was a judgment on the merits of the application. Such a judgment is not open to challenge by a petition to the nobile officium.

[39] Gallagher's complaint is in essence concerned with the court's refusal to grant an adjournment so that , albeit the court had already indicated that it would allow the appeal on other grounds, he could make detailed submissions on a further right of appeal. might intimate a devolution minute. It is not suggested that, in so far as there were concerns as to potential interference with the petitioner's Convention rights, these concerns could not have been advanced in submission. The court, conscious of the need to expedite the proceedings, was clearly entitled to taketook the view that it was unnecessary and inappropriate for it to grant the adjournment. The grant or refusal of adjournments is an ordinary feature of criminal business and involves the exercise of a discretion. Gallagher's challenge is essentially to the merits of the court's decision to refuse an adjournment. That decision is not amenable to review under the nobile officium.

Disposal

[40] For these reasons none of these four petitions is competently laid. They are each accordingly dismissed as incompetent.

Coda

[41] It is unnecessary in these circumstances to express any concluded view on the significance, if any, of a convicted person's right to make an application to the Scottish Criminal Cases Review Commission inviting it to make a reference to the court. There is a tension, if not a conflict, between the decisions of the court in Windsor, Petitioner 1994 SCCR 59 and Cochrane, Petitioner 2006 SCCR 213 on the one hand and the views of the majority of the court in Akram, Petitioner 2009 SLT 805 on the other. We find it unnecessary to resolve these differences. We observe only that the shortcoming identified by Lord Osborne at para [23] in Akram - namely, a failure to state adequate grounds for refusing leave to appeal - appears to go more to the merits of that decision than to be a procedural vice of such a degree as might, possibly, open it to challenge under the nobile officium.