Application For Leave To Appeal To Uk Supreme Court By The Lord Advocate Against Zain Taj Dean
| Jurisdiction | Scotland |
| Judge | Lady Clark Of Calton,Lord Drummond Young,Lady Paton |
| Neutral Citation | [2016] HCJAC 117 |
| Court | High Court of Justiciary |
| Date | 04 November 2016 |
| Docket Number | HCA/2014 |
| Published date | 24 November 2016 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 117
HCA/2014/003518/XM
Lady Paton
Lord Drummond Young
Lady Clark of Calton
OPINION OF THE MAJORITY OF THE COURT
delivered by LADY PATON
in
Application for Leave to Appeal to UK Supreme Court
by
THE LORD ADVOCATE
Applicant
against
ZAIN TAJ DEAN
Respondent
Applicant: The Lord Advocate, Dickson (Sol Adv); Crown Agent
Respondent: Bovey QC, Brown (Sol Adv); G R Brown, Glasgow
4 November 2016
[1] First, I shall announce the majority decision. Then I shall invite Lord Drummond Young to give the minority dissent.
[2] The majority decision of the court is that leave to appeal to the Supreme Court is refused, for the following reasons.
[3] I deal firstly with “oppression”. We regard this as a new and separate issue, and do not rely upon submissions relating to oppression in reaching our decision today.
[4] Secondly, competence. We have reservations about this matter, for reasons which we are about to give, but again we do not base our decision upon that issue.
[5] Nevertheless, turning to competence, as the majority of this court found in favour of Mr Dean on critical issues relating to Article 3 of the European Convention on Human Rights, this court did not consider it necessary to determine various devolution issue minutes raised on other matters by Mr Dean during the course of proceedings in appropriate form and intimated in accordance with our practice and procedure to various persons, including the Advocate General. None of these devolution issue minutes raised by Mr Dean sought to challenge any acts or omissions of the Lord Advocate as in some way incompatible with Article 3 Convention Rights. At no stage during the proceedings in the section 103 appeal did the Lord Advocate seek to raise an issue or focus submissions before this court in relation to whether and in what respect the Lord Advocate was acting compatibly or incompatibly with Article 3.
[6] It is not disputed that there is no appeal to the Supreme Court from the decision of this court under section 103 of the Extradition Act 2003. This court accepts that if, prior to the determination of the section 103 appeal, a party had raised a devolution issue for determination, there is an appeal route to the Supreme Court. Paragraph 13 of Schedule 6 to the Scotland (Act) 1998 provides a right of appeal to the Supreme Court against the determination of a devolution issue by a court of two or more judges of the High Court of Justiciary, with leave of the court from which the appeal lies, or failing such permission with leave of the Supreme Court.
[7] Had we determined or indeed refused to determine the devolution issues raised by Mr Dean, we accept that either party to the proceedings would be entitled to seek leave to appeal to the Supreme Court under and in terms of these provisions. As it happens, we did not refuse to determine the devolution issues raised in the minutes by Mr Dean. We concluded that it was unnecessary to do so, because we had found in his favour, by a majority, in the section 103 appeal.
[8] We accept that it would have been possible and competent for either party to seek to focus issues canvassed in the section 103 appeal relating to Article 3 during the currency of the proceedings, by raising the issue and making submissions about the issue as a devolution issue. In the circumstances, however, where parties have not chosen to do that during the course of our proceedings, we have concerns that an unsuccessful party, after the conclusion of the decision‑making by this court, can for the first time merely assert:
“The court’s holding that the extradition of the appellant would be incompatible with the appellant’s Convention Rights determined a devolution issue. This is because it is the Lord Advocate who conducts extradition proceedings for the requesting state … and in any event because the extradition of the appellant would be an act of the Scottish Ministers (paragraph 5 of the Lord Advocate’s Application for Permission).”
We observe first, that there is no specification given of a devolution issue. We consider it, at best, premature to make reference to the decision‑making of the Scottish Ministers. But even assuming that a devolution issue was properly focused for the determination of the Supreme Court at this stage, we observe secondly that a disappointed litigant could routinely make such an assertion, at a very late stage of proceedings, and seek to change the focus of the litigation to date. That is not a practice which this court would favour. It may also lead to further delay and practical difficulties, as in this case.
[9] In our opinion, if the Lord Advocate obtained leave to appeal to the Supreme Court and was successful in the appeal, it would be necessary, in fairness to Mr Dean, to determine the undetermined devolution issues which he raised. That would, of course, leave open the possibility of the unsuccessful party seeking leave for a further appeal to the Supreme Court. We consider that the mere fact that an issue is capable of being framed as a devolution issue does not mean that litigation should be allowed to continue over years and that, after final determination of the issues raised before this court, the unsuccessful litigant should be permitted to re‑frame the issue as devolution issue as an method of obtaining a route to appeal to the Supreme Court otherwise denied by the statutory scheme.
[10] That said, we do not consider it necessary in this particular case to reach any concluded view about competence, as for the reasons which we are about to give, we do not consider that a devolution issue of general public importance has been identified and that the appropriate test has been met.
[11] So we turn now to deal with the question of an issue of general public importance.
[12] Applying the guidance given in the cases of Wlodarczyk v The Lord Advocate (5 April 2012 XC 470/11 unreported) and Kapri v Lord Advocate [2014] HCJAC 63, paragraph 1, we do not accept that a devolution issue of general public importance has been identified.
[13] First, the decision in this appeal proceeds inter alia on an assessment of the facts as presented to the court. Unusually, this appeal court heard evidence over several days (27‑ 29 January 2016, 18 ‑ 19 May 2016 and 22 and 24 June 2016) all as set out in the judgment of the court dated 23 September 2016 [2016] HCJAC 83. This court was therefore acting as judges in an assessment of the facts. As was explained in McGraddie v McGraddie 2014 SC (UKSC) 12 and Henderson v Foxworth Investments Limited 2014 SC (UKSC) 203:
“67 … in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a...
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