The Judicial Committee of the Privy Council Decisions

Follen v. Her Majesty's Advocate (Scotland) [2001] UKPC D2 (08 March 2001)

DP No. 1 of 2000

Gary Follen Appellant

v.

Her Majesty's Advocate Respondent

FROM

THE HIGH COURT OF JUSTICIARY

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REASONS FOR DECISION OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL UPON A PETITION FOR

SPECIAL LEAVE TO APPEAL OF 22nd February 2001,

Delivered the 8th March 2001

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Present at the hearing:-

Lord Bingham of Cornhill

Lord Hope of Craighead

Lord Millett

[Delivered by Lord Hope of Craighead]

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1. This is a petition for special leave to appeal from the High Court of Justiciary under paragraph 13 of Schedule 6 to the Scotland Act 1998. As the facts on which the application was based were unclear, it was put out for an oral hearing by the Committee. At the conclusion of the oral hearing their Lordships announced that, for reasons to be given later, they had decided to dismiss the petition. The following are their reasons for that decision.
2. The petitioner seeks to raise as a devolution issue the question whether the act of the Lord Advocate in continuing to prosecute him for three offences under section 4(3)(b) of the Misuse of Drugs Act 1971 for which he appeared on petition on 3 November 1999 and was committed until liberated in due course of law on 11 November 1999 was incompatible with his right to a fair trial within a reasonable time under article 6.1 of the European Convention on Human Rights and Fundamental Freedoms (1953) (Cmd 8969). The indictment was served on him on 1 August 2000 for trial in the High Court at Edinburgh on 18 September 2000. As this date was a local holiday in Edinburgh, a fresh indictment was served on him for the case to call for trial the following day on 19 September 2000. The period of about 10½ months from 3 November 1999 to 19 September 2000 is the period which the petitioner wishes to bring under scrutiny. He accepts that the further delay that took place in bringing the case to trial was due to steps taken by the accused and cannot be attributed to the Lord Advocate.
3. Prior to his arrest on 2 November 1999 following an extensive police undercover operation, the petitioner had been serving a sentence of six years' imprisonment for offences under the Misuse of Drugs Act 1971 of which he had been convicted in the High Court at Inverness on 8 February 1995. On 9 February 1998 he was released on licence under section 3(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 after serving half of that sentence on the recommendation of the Parole Board. On 9 November 1999 the Scottish Ministers considered a report by the Northern Constabulary that they had arrested the petitioner in Inverness on 2 November 1999. The report stated that they had stopped and searched a car which the petitioner was driving in which they found 195 bags of cannabis resin, and that he had been charged with being concerned in its supply. In the light of this report the Scottish Ministers issued an order under section 17 (1) of the 1993 Act revoking the petitioner's licence and recalling him to prison. The Parole Board considered the police report at a meeting on 11 January 2000 and decided not to recommend his release.
4. Section 17(5) of the 1993 Act provides that on the revocation of a person's licence under any of the foregoing provisions of that section he shall be liable to be detained in pursuance of his sentence. The petitioner remained in custody until the trial, which began at the end of January 2001. His sentence of six years' imprisonment expired on 7 February 2001. At the end of the trial on 10 February 2001 he was convicted on two of the three charges which had been libelled against him of being concerned in the supplying of controlled drugs.
5. Section 65(4) of the Criminal Procedure (Scotland) Act 1995 provides that an accused who is committed for any offence until liberated in due course of law shall not be detained by virtue of that committal for a total period of more than 80 days unless the indictment is served on him within that period which failing he shall be liberated forthwith, or more than 110 days unless the trial of the case is commenced within that period which failing he shall be liberated forthwith and thereafter be forever free from all question or process for that offence. In Wallace v H M Advocate, 1959 JC 71, it was held that the running of the 110 day period was interrupted when the accused began to serve a sentence of imprisonment on another matter, as he was no longer being detained because of the committal warrant. The petitioner's return to custody when his licence was revoked had the same effect, as he was once more being detained under the sentence of six years' imprisonment which had been imposed on him on 8 February 1995.
6. Following the service upon him of the indictment, in which he was charged together with four co-accused all of whom were on bail, the petitioner lodged a minute under section 72 of the 1995 Act challenging the competency of the proceedings which were being taken against him on the ground of delay. After a hearing at a preliminary diet on 20 October 2000 the trial judge, Lord Wheatley, held that, as the petitioner was currently being detained in terms of his original sentence, he was not entitled to the protection afforded by section 65(4) of the 1995 Act. He rejected an argument that, by analogy with J T A K v H M Advocate, 1991 SCCR 343, and X, Petitioner, 1995 SCCR 407, the court should look behind the court process to determine what the petitioner's counsel described as the reality of the situation. This was said to be that, as the petitioner's licence would not have been revoked but for his arrest on 2 November 1999, the fact that he was now in custody was due solely to the making of the allegations against him of having committed the drugs offences for which he had been committed for trial in respect of which he was entitled to the presumption of innocence. The trial judge also rejected an argument that the Lord Advocate's act in bringing the petitioner to trial was incompatible with his Convention right to a fair trial within a reasonable time. He said that, having regard to the complexity of the case, the nature of the investigation and the significance of the prosecution, it could not in his view be said that a period of 10 ½ months was in any way unreasonable or excessive.
7. It should be noted that, of the two arguments which Lord Wheatley was asked to consider at the preliminary diet, the only one which raised a devolution issue within the meaning of paragraph 1 of Schedule 6 to the Scotland Act 1998 was the question whether the act of the Lord Advocate was incompatible with the petitioner's Convention right. The question whether the petitioner was entitled to the benefit of section 65(4) of the Criminal Procedure (Scotland) Act 1995 was a question of Scots criminal law and procedure. As such, it fell within the exclusive jurisdiction of the High Court of Justiciary: Montgomery v H M Advocate, 2001 SLT 37, 43K-L.
8. The petitioner appealed to the High Court against that decision under section 74 of the 1995 Act. On 7 December 2000 the High Court (Lords Prosser, McEwan and Cowie) affirmed the decision of the trial judge. Leave to appeal to the Judicial Committee was refused. No opinions were issued by the Court to record its reasons for either of these decisions. But their Lordships were informed by the Solicitor General that the petitioner's solicitor advocate, Mr McSherry, did not argue any devolution issue in that court. The Solicitor General said that Mr McSherry expressly departed from the argument which he had presented to the trial judge under reference to article 6 of the Convention, and that Lord Prosser indicated that leave to appeal to the Judicial Committee was being refused because no devolution issue had been raised. Mr McSherry, who appeared on the petitioner's behalf before the Committee, did not dispute the essential accuracy of the Solicitor General's account of what took place in the High Court.
9. Having considered the facts with which they were provided at the oral hearing, their Lordships were in no doubt that the High Court was right to refuse leave in this case and that the Committee, for its part, did not have jurisdiction to give special leave to appeal. Paragraph 13 of Schedule 6 to the Scotland Act 1998 provides that an appeal shall lie to the Judicial Committee "against a determination of a devolution issue" by the courts to which it refers. That is the limit of the Committee's jurisdiction under that paragraph of the Schedule. It has no original jurisdiction to consider devolution issues under that paragraph. The position differs in that regard from the jurisdiction which the Committee is entitled to exercise where a reference is made to it by a Law Officer of a devolution issue which is not the subject of proceedings: see paragraph 34. The appellate jurisdiction which the petitioner seeks to invoke under paragraph 13 is entirely dependent upon there having first been a determination by two or more judges of the High Court of Justiciary of the devolution issue which he wishes to argue before the Committee. Mr McSherry accepted that he departed from the devolution issue when he presented the petitioner's appeal to the High Court. That being so, as there was no determination of that issue by that Court, he cannot resurrect that issue by means of an appeal to the Judicial Committee under paragraph 13 of the Schedule.
10. Their Lordships are conscious of the fact that the question whether reasons should be given by the High Court of Justiciary when it decides to refuse an application for leave to appeal to the Judicial Committee is a matter that lies entirely within the discretion of the judges of that Court. Nevertheless they would like it to be understood that it would be of assistance to the Committee if reasons were given for the refusal of leave in those rare cases where the appeal to the High Court has been refused without giving reasons. This is because, if reasons are not given, the Committee may find it difficult to appreciate that a petition is without merit from the information which is given on paper by the petitioner. The expense and inconvenience of an oral hearing in this case would almost certainly have been avoided if the grounds on which leave was refused had been set out in a brief note by the Court.