Luke Muir Mitchell V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice General,Lord Osborne,Lord Kingarth |
| Neutral Citation | [2011] HCJAC 35 |
| Court | High Court of Justiciary |
| Docket Number | XC90/05 |
| Date | 15 April 2011 |
| Published date | 15 April 2011 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice General Lord Osborne Lord Kingarth | [2011] HCJAC 35 Appeal No: XC90/05 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPLICATION by LUKE MUIR MITCHELL for Leave to lodge additional ground of appeal in terms of section 110(4) of the Criminal Procedure (Scotland) Act 1995 _______ |
Appellant: Scott, Q.C., Mitchell; Mann & Co., Glasgow
Respondent: Shand, Q.C., A.D.; Crown Agent
15 April 2011
The procedural history
[1] On 21 January 2005 the appellant was after trial convicted of murder. On 11 February 2005 he was sentenced to detention without limit of time, a punishment part of twenty years being specified by the trial judge. On 2 August 2005 he lodged a note of appeal in which he sought to appeal against both conviction and sentence. The note of appeal set forth twelve grounds directed against conviction and one directed against sentence. Leave to appeal was granted in respect of certain of the grounds against conviction; it was also granted against sentence. On 7 December 2007 the appellant lodged a proposed additional ground of appeal (no.1A of the appeal process). He also lodged a related devolution minute. On 18 December 2007 at a procedural hearing his counsel intimated that he was no longer insisting upon that devolution minute. Enquiries were, however, ongoing in relation to the proposed additional ground of appeal. The court granted leave for the devolution minute to be withdrawn. It also allowed the proposed additional ground of appeal to be received and continued consideration of it until the full hearing which had already been assigned for 5 February 2008. At a further procedural hearing on 25 January 2008 counsel for the appellant intimated that the proposed additional ground was still "work in progress". The court again continued consideration of it until 5 February. At the opening of the hearing on 5 February counsel for the appellant intimated that the proposed additional ground remained "work in progress" and invited the court to postpone consideration of it until parties had been heard on the existing grounds against conviction. The court then proceeded to hear argument on these grounds. That hearing ran for thirteen court days. In the course of it the appellant was, on 8 February 2008, allowed to lodge and argue a further additional ground of appeal (no.31 of the appeal process). On 13 February 2008 there was further discussion in relation to the proposed additional ground (no.1A). On 22 February the submissions of parties on the existing grounds of appeal were concluded. There was further discussion of the proposed additional ground of appeal, the court in the result continuing consideration to a date to be fixed of the appellant's motion to allow the additional ground to be argued, with a direction that any further proposed evidence in support of it should be lodged within four weeks. The court made avizandum on the existing grounds against conviction. On 16 May the court was advised that the proposed additional ground of appeal was not to be insisted upon. On that date the court "Refused the appeal against conviction and Decerned". It continued the appeal against sentence to a date to be afterwards fixed. The appeal against sentence was heard on 28 April 2010. On 2 February 2011 that appeal was refused.
[2] Meantime on 27 January 2011 the appellant had lodged with the Justiciary Office a document entitled "Application For Leave To Lodge Additional Ground Of Appeal In Terms Of Section 110(4) Of The Criminal Procedure (Scotland) Act 1995". That proposed additional ground was a ground of appeal against conviction: it was founded on the decision of The Grand Chamber of the European Court of Justice in Salduz v Turkey (2009) 49 EHRR 14 and the decision of the Supreme Court of the United Kingdom in Cadder v HM Advocate [2010] UKSC 43. By letter dated 1 February 2011 (received on 2 February) agents for the appellant wrote, under a heading referring to his name, to the Deputy Principal Clerk of Justiciary as follows:
"We refer to the above matter. We have been informed that the advising of the sentence appeal will take place on Wednesday 2 February 2011.
Miss Scott QC has asked us to ensure that you are aware that she would like the application in terms of s 110(4) which was lodged on 27 January 2011 to call as soon as possible.
...
We look forward to hearing from you."
When the case called in court for the advising on 2 February, no application was made to the court to postpone that advising until the Application lodged on 27 January had been heard and disposed of. We were told that, prior to the advising, there had been some discussion with officials of the court in which those representing the appellant were told that the court would not entertain consideration of the Application at the time of the advising.
[3] At the request of the applicant that Application has now been brought before the court for a hearing.
The statutory provisions
[4] Part VIII of the Criminal Procedure (Scotland) Act 1995 is concerned with appeals from solemn procedure. It comprises sections 103 to 132 inclusive. Section 103 (appeal sittings) provides:
"(1) ...
(2) Subject to subsection (3) below, for the purpose of hearing and determining any appeal or other proceeding under this Part of this Act three of the Lords Commissioner of Justiciary shall be a quorum of the High Court. ...
(3) For the purpose of hearing and determining any appeal under section 106(1)(b) to (e) of this Act, or any proceeding connected therewith, two of the Lords Commissioner of Justiciary shall be a quorum of the High Court. ...
...".
Section 106 (right of appeal) provides:
"(1) Any person convicted on indictment may, with leave granted in accordance with section 107 of this Act, appeal in accordance with this Part of this Act, to the High Court -
(a) against conviction;
(b) subject to subsection (2) below, against the sentence passed on such conviction;
(ba) against the making of an order for lifelong restriction;
(bb) against any decision not to exercise the power conferred by section 205A(3) or 205B(3) of this Act;
(c) against his absolute discharge or admonition;
(d) against any probation order, drug treatment and testing order or any community service order;
(da) against any decision to remit under section 49(1)(a) of this Act;
(db) against any reference proposed under section 10(1) of the Protection of Children (Scotland) Act 2003 (asp 5) in respect of the conviction;
(dc) against such reference and, subject to subsection (2) below, such sentence, disposal or order or any order deferring sentence;
(e) against any order deferring sentence; or
(f) against
(i) both such conviction and, subject to subsection (2) below, such sentence or disposal or order;
(ii) both such a conviction and such a reference; or
(iii) such a conviction, such a reference and, subject to subsection (2) below, such sentence, disposal or order.
(2) There shall be no appeal against any sentence fixed by law.
(3) By an appeal under subsection (1) above a person may bring under review of the High Court any alleged miscarriage of justice ...".
Section 110 (note of appeal) provides:
"(1) ...
(a) within eight weeks of lodging intimation of intention to appeal or, in the case of an appeal under section 106(1)(b) to (e) of this Act, within two weeks of the appropriate date (being, as the case may be, the date on which sentence was passed, the order disposing of the case was made, sentence was deferred, the proposal to make a reference was made or the previous conviction was quashed as mentioned in section 106A(1)(c) or (2)(c) of this Act) (or, as the case may be, of the making of the order disposing of the case or deferring sentence) in open court, the convicted person may lodge a written note of appeal with the Clerk of Justiciary ...
...
(3) A note of appeal shall -
(a) identify the proceedings;
(b) contain a full statement of all the grounds of appeal; and
(c) be in as nearly as may be the form prescribed by Act of Adjournal.
(4) Except by leave of the High Court on cause shown, it shall not be competent for an appellant to found any aspect of his appeal on a ground not contained in the note of appeal.
...".
Section 118 (disposal of appeals) provides:
"(1) The High Court may, subject to subsection (4) below,...
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