Steven Henvey V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice General,Lady Paton,Lord Bonomy |
| Neutral Citation | [2011] HCJAC 25 |
| Court | High Court of Justiciary |
| Published date | 09 March 2011 |
| Date | 09 March 2011 |
| Docket Number | XM15/10 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice General Lady Paton Lord Bonomy | [2011] HCJAC 25 Appeal No: XM15/10 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in Petition of STEVEN HENVEY Petitioner; to the Nobile Officium of the High Court of Justiciary _______ |
Petitioner: C Mitchell; John Pryde & Co., Edinburgh
Respondent: P Ferguson, Q.C., A.D.; Crown Agent
9 March 2011
The background
[1] The petitioner was on 8 December 2009 convicted after trial of two offences under the Misuse of Drugs Act 1971: (1) of being concerned in the supplying of amphetamine, contrary to section 4(3)(b), and (2) of being concerned in the supplying of cocaine, contrary to the same subsection. There were two co-accused, one of whom was Craig Smith. On 12 January 2010 the petitioner was sentenced to twelve years' imprisonment concurrently on each charge.
[2] On 16 April 2010 he lodged a note of appeal specifying four grounds, three in respect of conviction and a fourth in respect of sentence. On 16 June leave to appeal against conviction was refused by a single judge; leave to appeal against sentence was granted. (His appeal against sentence was subsequently heard on 26 August 2010 and refused.) Meantime, on Friday 2 July agents for the petitioner lodged with the Justiciary Office two documents: the first, though headed "Amended Note of Appeal against Conviction", was not an amended note, but contained a single, wholly new, ground (criticising trial counsel for failure to call the two co-accused as witnesses for the petitioner); the second was an opinion of counsel, advancing reasons why leave to appeal should be granted by the High Court on the three grounds in respect of which leave had been refused by the single judge. A passage in parenthesis, appended to the "Amended Note of Appeal against Conviction", explained why the new ground was late. The opinion made no reference to this ground.
The correspondence
[3] By letter dated 5 July (and sent by fax on that day) the agents for the petitioner wrote to the Justiciary Office under the headings "Steven Henvey" and "Appeal Against Conviction and Sentence" as follows:
"We refer to the above matter and to the amended Note of Appeal against conviction and Opinion of Counsel lodged on Friday by hand in respect of the above.
You will note that the deadline for intimating an Appeal against the refusal of the existing grounds at the first sift was Friday and we trust this letter, Note of Appeal and Opinion have been safely received by you today. Please note that Counsel for the Appellant are seeking a Preliminary Hearing in respect of the new ground lodged.
Please also note that Counsel has requested a copy of the tape of the Judge's charge because apparently the Judge takes issue with the transcription. This being the case, we would be grateful if you could either pass the grounds through the sift and allow us to listen to the tapes of the Judge's charge or extend the time limits in this case to allow us to listen to the tapes before putting it through to the second sift process.
We trust you find this to be in order and look forward to hearing from you."
At the hearing before us it was explained that the reference in the second paragraph to a "Preliminary Hearing" was intended to be a reference to a "Procedural Hearing".
[4] On the same day an official in the Justiciary Office responded in the following terms:
"I refer to the above case and to Amended grounds of appeal and opinion by Counsel received on 2nd July 2010.
It is not clear from Counsel's opinion or your fax letter of today if it is your intention to appeal to the second sift or to apply for an extension of time to appeal to the second sift under section 107(4A) of the Criminal Procedure (Scotland) Act 1995.
I would be obliged if you could please clarify your position in writing as soon as possible in order for this matter to proceed."
[5] On 6 July agents for the petitioner replied as follows:
"I refer to the above and thank you for your fax today.
I have reviewed the letter sent to you along with the supplementary Opinion of Counsel and the supplementary Ground of Appeal.
I note that the supplementary Opinion and supplementary Ground of Appeal were lodged within the proper time limits on Friday by Counsel's Clerk and this was done in order to apply for an Appeal to the second sift - I note that [Counsel] agreed with your colleague that a letter from us would be forthcoming as she had instructed her Clerk to lodge the Appeal to the second sift due to the time limit.
I do note that the letter from us which was faxed on the 5th July 2010 is not sufficiently clear as you have indicated in your fax of 5th July 2010.
I wish to clarify the position as follows.
First of all I confirm that we do seek on behalf of Mr Henvey an Appeal to the second sift in respect of the original 3 ground (sic). In support of that we do wish their Lordships to refer to the supplementary Opinion provided by Senior and Junior Counsel and lodged on 2nd July 2010.
We note that also lodged on 2nd July 2010 was a supplementary Ground of Appeal and Counsel have explained why this has been lodged at...
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