Petitions To The Nobile Officium By William Beck+nat Fraser+luke Mitchell+colin Murphy+alexander Gallagher+petitions Under The Human Rights Acts 1998 By Nat Fraser+alexander Gallagher
| Jurisdiction | Scotland |
| Judge | Lady Dorrian,Lord Eassie,Lord Reed,Lord Kingarth,Lord Justice General |
| Neutral Citation | [2010] HCJAC 8 |
| Docket Number | XM23/08; |
| Court | High Court of Justiciary |
| Date | 29 January 2010 |
| Published date | 29 January 2010 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY
| |
| Lord Justice General Lord Kingarth Lord Eassie Lord Reed Lady Dorrian
| [2010] HCJAC 8 Appeal Nos: XM23/08; XM7/09; XM16/09; XM18/09 and XM20/09
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 (1st 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. (3rd 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 amendments to section 124 of...
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