Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2014] HCJAC 119

XC233/13

Lady Paton

Lady Smith

Lady Clark of Calton

OPINION OF THE COURT

delivered by LADY PATON

in

the application for leave to appeal to the Supreme Court

by

MICHAL RONDOS

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  Jackson QC, Brown, Connelly;  Paterson Bell

Respondent:  Prentice QC (sol adv) AD;  Crown Agent

4 November 2014

Introduction

[1]        On 1 March 2013 the appellant was convicted of inter alia carrying out a fraudulent scheme whereby persons from the Slovak and Czech republics were induced by offers of jobs and accommodation to travel to Scotland.  On their arrival, money was taken from them and they were then left without any support or assistance.

[2]        During the trial, there was press publicity about a campaign against human trafficking.  Counsel for the appellant moved the sheriff to desert the trial pro loco et tempore citing the publicity as prejudicial to his client.  The sheriff refused the motion.

[3]        At another point in the trial, the Crown sought to lead evidence of an interview by police officers of a co-accused named Fojtik.  Counsel for the appellant objected to that evidence being led on the ground that, during the interview, Fojtik made statements prejudicial to the appellant.  The sheriff ruled that the evidence of the interview should be led, subject to any agreed redactions.

[4]        The sheriff’s reasons for his decisions are set out in his report dated 28 July 2013.

[5]        The appellant appealed against conviction.  Following a hearing in the appeal court on 20 February 2014, his appeal was refused (Kupka and Rondos v HM Advocate 2014 SCCR 383).  The appellant now seeks leave to appeal to the Supreme Court.

Application for leave to appeal to the Supreme Court

[6]        The appellant’s solicitors agreed by letter dated 30 June 2014 that the application should be dealt with as a paper application (namely a completed Form 40.9) without an oral hearing.  However, rather than containing a “summary of reasons” (our emphasis), as Form 40.9 paragraph 2(ii) requires, the application was lengthy, prolix, and lacking in clarity, particularly in relation to the grounds upon which the application was based.  We accordingly put the case out for an oral hearing at the first available date, 3 October 2014.

[7]        Senior counsel (appearing on behalf of the appellant for the first time) confirmed that the three grounds upon which the application was based were contraventions of article 6 of the European Convention on Human Rights, namely:

1. the sheriff’s failure to desert the trial pro loco et tempore due to contemporaneous prejudicial publicity;
2. the sheriff’s failure to uphold objections to the admissibility of the interview of the co-accused Fojtik;and
3. this court’s failure to give a reasoned judgment.

Senior counsel further confirmed that these contentions were presented as compatibility issues.

[8]        The Crown had provided written submissions in response to the appellant’s application for leave.  In those submissions, the Crown contend in relation to grounds (i) and (ii) that it was not open to the appellant to seek to appeal to the Supreme Court in relation to his criticisms of the sheriff because:

1. Those criticisms could not be raised as compatibility issues, as the trial was completed on 20 March 2013, i.e. before 22 April 2013, being the date on which section 288Z of the Criminal Procedure (Scotland) Act 1995 came into force permitting a specific right of appeal to the Supreme Court in relation to compatibility issues.
2. The criticisms were not convertible devolution issues, as the issues raised had been determined by the sheriff prior to 22 April 2013, and no notice of intention to appeal had been lodged by that date (Carberry v HM Advocate 2014 JC 56, 2013 SCCR 587 paragraph 53;The Scotland Act 2012 (Transitional and Consequential Provisions) Order 2013 paragraph 2(1)(c)).
3. The appeal to the High Court of Justiciary had in fact been presented solely on the basis of domestic law.During the appeal hearing, there had been no submission that domestic law was incompatible with the convention.The court had not been referred to any convention jurisprudence.

In relation to ground (iii), the Crown accepted that article 6 of the ECHR had been interpreted to include the right to a reasoned judgment (Hadjianastassiou v Greece (1993) 16 EHRR 219 at para 33;  Ruiz Torija v Spain (1995) 19 EHRR 553 at para 29;  Garcia Ruiz v Spain (2001) 31 EHRR 22 para 26).  However the Crown contended that such a right did not require the court to provide a detailed answer to every argument presented (Van de Hurk v Netherlands (1994) 18 EHRR 481 at para 61;  Ruiz Torija v Spain at para 29;  Garcia Ruiz v Spain at para 26).  The extent to which reasons were required might vary according to the circumstances of the case (Ruiz Torija v Spain at para 129;  Hiro Balani v Spain (1995) 19 EHRR 566 at para 27;  Garcia Ruiz v Spain at para 26).  When these principles were applied to the present case, it could be concluded that the appellant did receive a reasoned judgment from this court.

[9]        In his oral submissions on 3 October 2014, Mr Jackson submitted that:

• Devolution minutes had been lodged during the sheriff court trial in connection with (i) the publicity issue and (ii) the interview with Fojtik.These minutes had been argued, and then had been refused by the sheriff.
• There had been no final determination of the devolution matters prior to 22 April 2013, as following upon the completion of the trial on 20 March 2013 the appellant had appealed.The note of appeal contained references to compatibility issues, as did the appellant’s case and argument.It was irrelevant that no compatibility arguments had been mentioned during submissions to the appeal court at the hearing of the appeal:the written references in the note of appeal and in the case and argument were sufficient.Thus when the appeal court made their decision (2014 SCCR 383), that constituted a ruling on the compatibility issues, and the appellant was entitled to appeal against that ruling to the Supreme Court.

[10]      The advocate depute, in his oral submissions on 3 October 2014, reiterated that the issues had been finally determined in the sheriff court prior to 22 April 2013;  but in any event, no arguments about compatibility issues had been presented to the court in the appeal hearing in February 2014, and the appellant could not now seek to re-raise compatibility issues which had not been argued in the appeal court (cf Follen v HM Advocate 2001 JC (PC) 105 at page 108).

Further information sought by the appeal court

[11]      Following upon the hearing on 3 October 2014, we requested further information, including:

• Copies of the devolution minutes referred to (which were not lodged in the appeal process, and had to be requested from the sheriff court).
• Information about the timing and nature of the appeal lodged following upon the completion of the trial.

We were subsequently provided, by the relevant court staff, with copies of the devolution minutes which had been lodged in the sheriff court on behalf of the appellant.  These minutes had not been lodged in the appeal court process.  Two of the minutes appeared not to be relevant to the present application, as they concerned (i) surveillance, and (ii) interpreting services for a Miss Dudasova.  (iii) The third minute concerned the campaign against human trafficking.  There was no devolution minute relating to the interview with Fojtik.  The appellant’s objection to the admissibility of that interview evidence was that it was not admissible at common law, and the objection was raised in a preliminary issue minute.  We were provided with a copy of that minute.  It was in Form 9A in terms of section 72 of the Criminal Procedure (Scotland) Act 1995 (namely notice of preliminary pleas and preliminary issues).

[12]      We were also provided with a copy of the appellant’s notice of intimation of intention to appeal under section 109(1) of the 1995 Act.  That notice had been lodged on 1 May 2013 – i.e. outwith the two week time-limit allowed by section 109.  However an extension of time in terms of section 103(5) was granted by Lord Mackay of Drumadoon on 1 May 2013.  The notice of intimation of intention to appeal was in standard terms, as follows:

“Intimation is hereby given that the above named convicted person intends to appeal to the High Court of Justiciary against the foregoing CONVICTION.”

Decision and reasons

The allegedly prejudicial publicity

[13]      A devolution minute was lodged in the sheriff court relating to the allegedly prejudicial publicity arising from the campaign against human trafficking.  The sheriff refused that minute, according to his report (pages 2 to 7), on or about 22 October 2012.  The trial was completed before 22 April 2013.  As at that date, no intimation of intention to appeal had been lodged.  There were no appeal proceedings then in existence.  As at that date, the devolution issue had been finally determined (by the sheriff) and could not therefore be converted into a compatibility issue (The Scotland Act 2012 (Transitional and Consequential Provisions Order 2013 paragraph 2(1)(c)).  The present application in relation to this ground is, accordingly, incompetent.

[14]      Even if there was some force in Mr Jackson’s contention that the matter was not “finally determined” by the sheriff because a broadly-framed notice of intimation of intention to appeal was subsequently lodged by the appellant, and because references to a compatibility issue relating to the prejudicial publicity appear in both the appellant’s note of appeal (pages 2 to 3) and his case and argument (page 2),  we are unable to accept the contention that any counsel orally presenting the appeal to the appeal court did not require expressly to mention or advance an argument relating to that compatibility issue when making his submissions (and to explain the basis on which any convertible devolution issue was said to result in the determination of a compatibility issue) if the conclusion that the issue had in fact been finally determined by the sheriff was to be avoided.  We confirm that counsel for the appellant at the appeal hearing presented his appeal solely on the basis of domestic law.  There was no reference to any devolution minute which had been lodged in the sheriff court:  indeed no copy of any such minute had been lodged in the appeal court process or was referred to – even briefly – in the course of the appeal hearing.  There was no analysis of the status of any devolution minute under and in terms of The Scotland Act 2013 (Transitional and Consequential Provisions) Order 2013.  No submission was made to the appeal court that domestic law was incompatible with the convention, or that convention jurisprudence in the relevant area was any different from Scots law.  The appeal court was not referred to any convention jurisprudence.  Bearing in mind the observations in Follen v HM Advocate 2001 JC (PC) 105 at page 108;  the fact that during the appeal the Crown heard no convention argument, and accordingly made no reply to such any such argument;  the lack of a reasoned decision by the appeal court on any convention argument (none having been sought);  and the fact that the Supreme Court would in effect be asked to deal with this issue as a court of first instance, we are unable to accept senior counsel’s submission that it mattered not that counsel’s submissions during the appeal hearing focused entirely on domestic law, with no mention being made of any convention issue.

[15]      In all these circumstances we are not prepared to grant leave to the appellant to appeal to the Supreme Court on the issue of the sheriff’s decision not to desert the trial pro loco et tempore due to allegedly prejudicial publicity.

The interview with Fojtik

[16]      As noted in paragraph [11] above, no devolution minute relating to the interview with Fojtik was lodged on the appellant’s behalf in the sheriff court.  In our view therefore the appellant has no convertible devolution issue in relation to that matter.  In any event, the reasoning set out in paragraph [14 ] above (no reference to convention arguments during the appeal) applies equally to the interview with Fojtik.

The question of a reasoned judgment

[17]      The final ground upon which leave to appeal to the Supreme Court is sought is this court’s alleged failure to give a reasoned judgment.  We refer to the principles in the Crown’s written argument, summarised in paragraph [8] above.  The appellant’s criticism focuses on paragraph 33 of this court’s opinion, but that approach fails to take into account the opinion as a whole, read together with the sheriff’s reasons as explained in his report.  In the opinion, the appeal court examined and addressed the arguments put forward, and gave a reasoned decision which, we consider, met the requirements of article 6 of the ECHR and cannot be said to have left the appellant in any real doubt as to the reasons why his appeal did not succeed.  In our view, it is not seriously arguable that the appellant did not receive a reasoned judgment.  Nor does it appear to us that any issue arises of sufficient importance as to justify a hearing of this appeal by the Supreme Court.

[18]      In all the circumstances, we are not persuaded that any seriously arguable compatibility issues arise or, in any event, that there is a compatibility issue of sufficient importance to justify a hearing by the Supreme Court.  Nor are we able to identify anything in the application which raises an issue of general importance.  It would not, we consider, be appropriate for this court to grant leave to appeal to the Supreme Court.