APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Justice ClerkLord ClarkeLady Dorrian
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[2012] HCJAC 35Petition No: XM18/11
OPINION OF THE LORD JUSTICE CLERK
in
Petition to the Nobile Officium
by
HUSEYIN COBANOGLU Petitioner; _______
|
Appellant: Shead, Mason; John Pryde & Co, SSC (for Messrs Mann, Solicitors, Glasgow)
Respondent: A Brown, QC AD; Crown Agent
8 March 2012
Introduction
[1] On 3 June 2009 the petitioner was
convicted of two charges of rape and three charges of serious sexual assault.
He was sentenced to ten years' imprisonment.
[2] On 16 June 2009, the petitioner gave
notice of intention to appeal. His solicitors thereafter applied for an
extension of time within which to lodge substantive grounds of appeal. They
said that there had been a change of agency and that they had tried in vain to
obtain full papers from the trial solicitors.
[3] On 23 July 2009, the court granted an
extension of four weeks from that date. The new deadline was therefore 20 August 2009. On 17 August 2009 the petitioner's
solicitors applied for a further extension of time for the reason that they had
already given.
[4] On 18 August 2009, Lord Carloway
refused the application for the following reason:
"The only basis for this application is that the applicant has decided to change his legal representation. The applicant was sentenced on 3 June and ample time has already been afforded to him to lodge a Note of Appeal."
[5] On 24 August 2009 the petitioner's
solicitors gave notice that he wished the application to be reconsidered by a
bench of three judges. On 2 September 2009 the court reconsidered the application and continued
it to 4 September
2009 so that
enquiries could be followed up with the trial solicitors. The trial
solicitors' response was that they had produced the trial papers some time
earlier and had only recently understood that their correspondence file was
also required. On 4 September 2009 a bench of three judges, one of whom was Lord Hardie,
pronounced the following interlocutor:
"In the continued appeal against the refusal by a single judge to allow an extension of time to lodge a Note of Appeal against Conviction and Sentence the Court, having further heard Counsel for the appellant, Refused same."
The first petition
[6] On
10 December
2010, the
petitioner's solicitors lodged a petition to the nobile officium the
prayer of which was that the court should set aside the interlocutor of 4 September 2009 and grant an extension of
time. In support of the prayer it was averred that the appeal court had
erred in refusing to extend the time limit and in particular had (1) failed to
recognise that the petitioner's non-observance of the statutory time limit was
excusable in the circumstances of this case; (2) misdirected itself; and (3)
erred in holding that the request for disclosure of the case papers from the
former solicitors with a view to investigating grounds of appeal amounted to a
fishing expedition.
[7] On 15 December 2010, Lord Hardie refused to
grant a warrant for service of that petition for the following reason:
"This application is incompetent. The interlocutor pronounced by the Court of Criminal Appeal on 4 September was final and conclusive. It is not subject to review - section 124 of the Criminal Procedure (Scotland) Act 1995."
[8] By letter dated 17 January 2011, the petitioner's agents
requested a hearing on the merits of Lord Hardie's decision. On 24 January 2011 the Deputy Principal
Clerk of Justiciary sent the following reply:
"I refer to your letter dated 17 January 2011. A decision has already been taken in the case by Lord Hardie that the petition is incompetent in terms of Section 124 of the 1995 Act. That decision was taken having regard to the written material presented in the petition. The form of the petition provides an opportunity for an application to deal with any potential issues of competency in writing. In this case, that was done by the petitioner, to an extent, in paragraphs 6 to 8, no doubt having regard to Beck, Petitioner 2010 SCCR 222. Your application for an oral hearing had been referred to the judge in charge of the administration of criminal appeals. He has advised that, since it has already been decided that the petition is incompetent, it is not appropriate to have an oral hearing to re-address that matter. In any event, applications of the this type are, as a matter of practice, determined on the written material presented unless the judge considering the papers in chambers is of the view that an oral hearing is, for some exceptional reason, required."
The judge in charge of the administration of criminal appeals was Lord Carloway.
The present petition
[9] On
5 October 2011 the petitioner's solicitors lodged a further petition to the nobile
officium the prayer of which was that the court should set aside the
decision of Lord Hardie and grant an extension of time. The averments include
the following:
"4 That agents have since obtained the interlocutors and papers referred to. In doing so it has become apparent that the interlocutor of Lord Hardie dated 15 December 2010 is fundamentally flawed and there has been a denial of justice. In particular, Lord Hardie was a member of the bench on 4th September 2009 when the decision complained of was made. In these circumstances, the Petitioner has been denied a fair hearing before an independent and impartial tribunal. The tribunal is objectively biased. In addition, Lord Carloway, the Administrative Judge of the Court of Criminal Appeal who dealt with the request for an oral hearing was the single judge who refused to allow the extension of time in the first instance before that decision was appealed to a bench of three judges.
In these circumstances, justice is neither being done nor being seen to be done. The interlocutor of Lord Hardie is incompetent et separatim fundamentally incompatible with the right to a fair trial (Beck, Petr & Ors 2010 SCCR 222; Hoekstra v HM Advocate (No. 3) 2000 JC 391). The petitioner in the instant case has been denied access to the court by two judges of the Supreme Court both of whom have had intimate involvement in the case previously.
5 That the Petitioner maintains that the Appeal Court has erred in refusing to warrant the Petition on the following grounds:
1 The Court was objectively biased and deprived the appellant of a fair hearing.
2 Separatim, by refusing the appellant an appeal against the refusal to warrant the appellant is being denied access to the Court. In the circumstances, the remedy of the nobile officium is neither practical or effective and fails to comply with article 6 of the Convention.
6 That it is submitted that the interlocutor of the Court of Criminal Appeal dated 15 December 2010 is unlawful, irregular and in contravention of article 6 of the Convention and that the circumstances condescended upon are accordingly exceptional.
7 That accordingly the petitioner has no other remedy available to him other that to petition the nobile officium ... "
[10] Lord Bonomy granted a warrant for service on
the view that it was arguable that the earlier involvement of Lord Hardie
and Lord Carloway could be said to amount to exceptional or unforeseen
circumstances. He stressed that he expressed no opinion on the arguability of
the original petition. He confined himself to the observation that there was a
risk that the "Tribunal" that dealt with the application would be perceived by
the informed observer to be biased (Note, pp 4-5). His Lordship had
concerns about the prayer of the petition. In his view, the challenge should
be restricted to the decision of Lord Hardie. The petition was thereafter
amended accordingly and duly warranted.
Criminal Procedure (Scotland) Act 1995
[11] Section 124(2) of the 1995 Act provides,
with exceptions that do not apply in this case, as follows:
" ... 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."
Conclusions
A preliminary matter
[12] We
raised with counsel for the petitioner our concern that the petition could be
read as alleging that there was actual bias on the part of Lord Hardie. He
disclaimed any such suggestion. He said that the petition had been drafted and
signed by Mr Andrew Mason, advocate, his junior in the case. We suggested to
him that he might wish to amend the petition. I regret to say that that
suggestion was not taken up.
[13] In the result, the unsupported, and in my
view insupportable, averments that "there has been a denial of justice" and
that justice was "neither done nor seen to be done" remain tabled in the
pleadings. Moreover, although the case for the petitioner is now confined to
an allegation of apparent bias affecting Lord Hardie's decision, the averments
clearly imply that Lord Carloway too is to be faulted for his part in the
history. All of these averments are scandalous, in my view. When no attempt
is to be made to substantiate them, it is the professional duty of counsel, as
an officer of the court, to delete them.
The merits
[14] Counsel
for the petitioner submitted that his client was not afforded his right under
article 6 to have the first petition to the nobile officium
determined by an independent and impartial tribunal. He conceded that it is
not per se a breach of article 6 for a judge to be involved in deciding
a question relating to a review of his own decision. That concession could not
be withheld standing the decision of this court in Umair v Umair
(2002 SC 153).
[15] Counsel submitted however that in the
particular circumstances of this case Lord Hardie's involvement was
inappropriate because his Lordship, having been a member of the court that
dismissed the appeal, took a decision to deny the petitioner the only means by
which that decision could be set aside. He suggested that the case raised a
serious issue of access to justice because a single judge of this court had the
power to decide whether a bench of three judges had reached the right
decision.
[16] That submission raises two fundamental
questions; namely, whether a decision of this court by which an appeal is
disposed of is open to review under the nobile officium; and whether
Lord Hardie, in refusing to grant the warrant, made a decision as to the merits
of the decision of this court of 4 September 2009.
The scope of section 124(2)
[17] In the course of the discussion we confirmed
with counsel for the petitioner that his submission was that, notwithstanding
section 124(2) of the 1995 Act (supra), any decision of this court,
other than a decision on the merits of an appeal, is amenable to review by the
exercise of the nobile officium. That, in my respectful opinion, is an
unstateable proposition. It is conceivable that there could be extraordinary circumstances
in which an appellant who was left without a remedy could invoke the nobile
officium: for example, when by reason of a procedural mishap, his appeal
was mistakenly refused. No such circumstances apply in this case. Article 6
was prayed in aid; but I fail to see how article 6 can entitle an unsuccessful
appellant to bypass section 124(2) when there has been a fair hearing of his
appeal and the appeal has been competently and finally disposed of in
accordance with the law.
The nature of the decision complained against
[18] It is absurd to suggest that Lord Hardie had
the power to decide whether the decision of this court dated 4 September 2009 was sound. The question
before Lord Hardie on 15 December 2010 was entirely different from that
which had been decided by three judges on 4 September 2009. In the latter case, the
question was whether the court should exercise its discretion in favour of the
petitioner by granting an extension of time. That necessitated the court's
deciding whether sufficient reason had been advanced to excuse the delay. The
question before Lord Hardie had nothing to do with the merits of the
decision that the petitioner was then seeking to impugn. The sole question was
whether the petition was competent; that is to say, whether the averments
disclosed unforeseen or extraordinary circumstances, for which the law provided
no other redress, that might justify the invocation of the nobile officium.
To my mind, the most significant feature of counsel's submission was his
concession that the first petition was insupportable. To suggest that in
refusing to warrant it, Lord Hardie denied the petitioner the only means
by which the decision of 4 September 2009 could be set aside is simply absurd.
I fail to see how Lord Hardie could be said to have erred. No judge could have
reached any other decision.
The first petition
[19] The plain conclusion is that the first
petition was both incompetent and irrelevant. It was not a competent mode of
review of the merits of the decision dated 4 September 2009. It sought to annul a
decision of this court that by statute was final and not open to review. It
failed to set out any circumstances that might justify the court's exercising
its nobile officium. It failed to set out any averments of harm that
was apprehended by the petitioner. It failed to set out the grounds of appeal
that the petitioner's solicitors had failed to produce since July 2009.
The present petition
[20] The present petition is no better. It is
irrelevant from start to finish. All that has changed is that it is now two
and a half years since the petitioner was required to lodge grounds of appeal.
The present petition discloses none, even in the most general terms.
Disposal
[21] I propose to your Lordship and to your
Ladyship that we should refuse the petition.
APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Justice ClerkLord ClarkeLady Dorrian
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[2012] HCJAC 35Petition No: XM18/11
OPINION OF LORD CLARKE
in
Petition to the Nobile Officium
by
HUSEYIN COBANOGLU Petitioner; _______
|
Appellant: Shead, Mason; John Pryde & Co, SSC (for Messrs Mann, Solicitors, Glasgow)
Respondent: A Brown, QC AD; Crown Agent
8 March 2012
[22] I agree with your Lordship in the chair, for
the reasons given by you in your Opinion, that this petition is wholly
misconceived and should be refused.
[23] I would simply add the following. The
provisions of section 124(2) of the Criminal Procedure (Scotland) Act 1995 are perfectly
clear:
"... every interlocutor and sentence pronounced by the High Court under [Part VIII] of this Act shall be final and conclusive and not subject to review by any court whatsoever...." (emphasis added).
If it be the case that a view has been developing that because of the adoption of the European Convention on Human Rights there is, notwithstanding the wording of the statutory provisions just referred to, some general residual right of review of such interlocutors when time limits for bringing an appeal have been missed, or overlooked, then it is necessary to say that any such view is quite unjustified.
[24] Every civilised system of criminal justice
must have built into it an element of finality. This is necessary not only for
the orderly conduct of criminal business but finality is in itself a desirable
end in the interest of all parties to the process. There can be no system of
unending appeals. In our system the means provided by statute for review of
High Court decisions, after the appeals process has been exhausted, or where no
appeal has been taken timeously, is by means of an application to the Scottish
Criminal Cases Review Commission. Where Parliament has specifically legislated
for a means for post-appeal review, it is not, in my opinion, normally
competent for the nobile officium to be invoked. That jurisdiction has
been confined to those circumstances that can truly be said to be
"extraordinary or unforeseen and where no other remedy is provided by law" (see
Anderson v HM Adv 1974 SLT
239 per Lord Justice General Emslie at p 240). It should be noted,
furthermore, that the reference to "provided for by law" in that dictum,
is not to be read as covering the situation when an available remedy has not
been employed and can no longer be employed.
[25] In the present case counsel for the
petitioner was not prepared to support the terms of the petition which had been
presented to Lord Hardie. That was not surprising since it provided no
basis whatever for the exercise of the exceptional jurisdiction invoked by a
petition to the nobile officium as it was simply seeking to re-open
appeal procedure, some 15 months after the time limit for doing so had expired
and when even at that stage, (as remains the position now, over two and a half
years from the date of conviction) no substantive grounds of appeal were, or
could be, stated.
[26] I am, furthermore, in full agreement with
your Lordship in the remarks he makes with regard to the averments in the
petition before us to the effect that Lord Hardie had been "objectively
biased" and that the "petitioner in the instant case has been denied access to
the court by two judges of the Supreme Court". Those are averments which are
clearly unfounded and which, as such, are capable of bringing the court itself
into disrepute. They should never have been made by counsel as an officer of
the court acting responsibly. It was regrettable that counsel for the
petitioner, who disclaimed authorship of those averments, did not seek to have
them deleted.
APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Justice ClerkLord ClarkeLady Dorrian
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[2012] HCJAC 35Petition No: XM18/11
OPINION OF LADY DORRIAN
in
Petition to the Nobile Officium
by
HUSEYIN COBANOGLU Petitioner; _______
|
Appellant: Shead, Mason; John Pryde & Co, SSC (for Messrs Mann, Solicitors, Glasgow)
Respondent: A Brown, QC AD; Crown Agent
8 March 2012
[27] I am grateful to your Lordship in the chair
for setting out the background to this appeal.
[28] At a hearing on the matter before us Mr Shead
asked that the decision of 15 December 2009 be set aside on the basis that there
was a risk that the tribunal which made that decision might be perceived by the
informed observer to be biased. The matter could then be considered de novo.
He made no criticism of the decision of January 2011. Counsel argued that
the petitioner has not been afforded the right to have the issue determined by
an independent and impartial tribunal. It was not appropriate for a member of
the court which refused the extension to consider the request to warrant the
petition. The decision was taken by a member of the court who had "articulated
the view that there was no basis to extend the time". Whilst the Nobile Officium
could not be invoked to review a decision on the merits, it was otherwise
available to review decisions of the court, notwithstanding the terms of
section 124. The apparent insuperability of section 124 was not an
answer in the circumstances and even if a different judge had made the decision
of 15 December, a petition to the Nobile Officium on
that basis would have been presented. There was an appearance of apparent bias
and the petition should be granted.
[29] In relation to the issue of bias, in his
submissions Mr Shead made it clear that he was not suggesting that there had
been actual bias in this case. It is a pity therefore that the petition,
although containing the phrase "objectively biased" went on to say that "justice
is neither being done nor being seen to be done" since the former carries with
it an inference of actual bias. These averments were not supported by counsel
nor were the averments attacking the decision of the administrative judge in
January 2011. Averments which impugn the integrity of any judge should be made
only in circumstances where they can be supported and substantiated. It is
unfortunate that the averments were made in the first place, and equally
unfortunate that they were not deleted at the outset.
[30] In answer to questions from the court, Mr Shead
indicated that (a) he was not prepared to support the terms of the original
petition which had been presented to Lord Hardie; and (b) he did not stand by the terms of paragraph 4
of the present petition which asserted that justice was "not being done". In
the course of his submissions he made no reference to authority.
[31] The Advocate depute submitted that the
decision of 15 December 2009 was inevitable, standing the
terms of section 124, and any judge considering the application would have been
required to reach the same conclusion. The original petition was incompetent
since no inherent procedural vice had been identified. The identity of the
judge making the decision was immaterial and no informed observer could
legitimately apprehend bias. The petition should therefore be refused.
Discussion
[32] The original petition stated three grounds:
that the court had erred in failing to conclude that the reason for
non-observance of time limits was excusable because of delay in transferring
the papers; that the court had misdirected itself in concluding that the
petitioner required to state arguable grounds of appeal as part of an extension
of time, particularly in the absence of all the papers; and that since one of
the proposed grounds of appeal was an Anderson appeal, it should have
been obvious that all papers were necessary. These grounds do not disclose any
procedural vice or inherent irregularity of the fundamental and extraordinary
kind which might make a decision of the High Court amendable to the
jurisdiction of the Nobile Officium. The decision that the petition was
incompetent by virtue of section 124 was one which would have to have been
reached, whether by Lord Hardie or any other judge. The Note appended to Lord Hardie's interlocutor made it clear that he
did not consider the merits of the decision of 4 September 2009; nor did he consider the
merits of the petition itself; rather he proceeded on the basis that the
interlocutor of 4 September being a final one, and not subject
to review, the petition was incompetent. In the circumstances there is no
basis for concluding that the circumstances of this case would give rise to a
reasonable apprehension of bias in the mind of any informed observer.
[33] In any event, the right to access to a court
is not absolute: the imposition of time limits is not incompatible with a
person's rights under the Convention. An extension of time has to be
justified, and the greater the delay in seeking the extension, the more
persuasive will have to be the reasons for seeking it. In this case, the
original petition was essentially an effort to have the decision reviewed on
its merits, with no new information and some fifteen months later. Counsel was
not able to support the grounds as stated in the original petition. If this
petition were granted, he would not seek to argue that the extension should
have been granted for any of the reasons stated in that petition. The effect
is that, by means of the present petition, he is seeking to enable a new
argument for extension to be made, on grounds which have not yet been
stipulated; and to enable him to formulate grounds of appeal which themselves
have not yet been identified, over two and a half years from the date of
conviction. That is very close to being an abuse of process.