Graham Gordon To Be Nobile Officium
| Jurisdiction | Scotland |
| Judge | Lord Bracadale,Lord Malcolm,Lady Dorrian |
| Neutral Citation | [2015] CSIH 51 |
| Year | 2015 |
| Published date | 03 July 2015 |
| Date | 04 June 2015 |
| Court | Court of Session |
| Docket Number | P481/15 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 51
P481/15
Lady Dorrian
Lord Bracadale
Lord Malcolm
OPINION OF THE COURT
delivered by LADY DORRIAN
in the petition of
GRAHAM GORDON
Petitioner;
to the nobile officium
Act: Party
4 June 2015
[1] This is an application to the nobile officium which the petitioner has been allowed to present to the court without a signature of either counsel or a solicitor advocate, under the operation of Rule of Court 4.2(5). The matter comes before us by order on a question whether we should grant first orders.
[2] The petitioner was convicted of rape at the High Court in Stonehaven in 2002 and sentenced to five years imprisonment; he has since lodged a series of unsuccessful attempts to overturn his rape conviction. In 2005 the petitioner’s application for review of his conviction was accepted by the Scottish Criminal Cases Review Commission (SCCRC), and in 2007 the SCCRC referred the case to the High Court to look into the possibility that a miscarriage of justice might have occurred as a result of the "cumulative effect of Grampian Police enquiry errors and other irregularities". On 6 May 2010 the appeal was refused (see 2009 SCCR 570 and 2010 SCCR 589) and on 28 May 2010 the petitioner's motion for leave to appeal to the Supreme Court was also refused.
[3] The petitioner’s case was accepted by the SCCRC for a second review, on a sole ground relating to whether there was evidence that a pair of trousers seized by the police were not those worn by the complainer at the material time. Following a full review, the SCCRC decided not to refer the case. In September 2012 the petitioner’s application for judicial review of that decision was refused by Lord Pentland (see [2013] CSOH 13).
[4] In the present application to the nobile officium the petitioner raises his concerns about the scope of the earlier referral in 2007, and the SCCRC’s handling of that referral. He seeks a ruling on whether the SCCRC acted in a way incompatible with the petitioner’s human rights, and in particular, seeks a ruling that in 2007 the SCCRC failed in its obligation to conduct an independent investigation into his case.
[5] The petition is somewhat difficult to follow, containing a great deal of material which appears to be irrelevant to the issues raised in the prayer of the petition, and the ultimate remedy which is sought by the petitioner is not wholly clear. The complaint about the decision made in 2007 appears to relate to the apparent conclusion by the SCCRC that additional allegations relating to “several oppressive acts and omissions by the police and Crown” were irrelevant. The petitioner also complains that the decision of the SCCRC cannot be viewed as independent, since one of its caseworkers was at the time on secondment from Crown Office and Procurator Fiscal Service, where he was a procurator fiscal depute. The petitioner asks the court to rule whether the decision of the SCCRC in March 2007 was unlawful and voidable. Associated with the craves already mentioned, is one which is directed at overturning the decision of the appeal court following that reference, reported at 2010 SCCR 589.
[6] It will readily be apparent that a question of competency arises, in several respects. In the first place, decisions of the High Court of Justiciary are not reviewable in the Court of Session, nor would a decision such as that made in 2010 be susceptible to review in this way under the nobile officium of the High Court of Justiciary (2 Hume 504; Criminal Procedure (Scotland) Act 1995 section 124(2); Beattie Petr 1993 SLT 676; Perrie, Ptr 1991 SCCR 475; Beck, Ptr & Ors 2010 SCCR 222).
[7] The nobile officium is described in Maclaren, Court of Session Practice, page 100 as:
“..the equitable power vested in the Court of Session to make provision for cases arising out of statutes, but for which no provision has been made in said statutes; or for unexpected, or exceptional, happenings, whether arising from statute or otherwise.”
According to Erskine (Institutes, I,3,22):
“It will never be exercised, except in cases of necessity, or very strong expediency, and where the ordinary procedure would provide no remedy.”
[8] The authorities make clear that it is an extraordinary jurisdiction to be employed only in exceptional circumstances and for very compelling reasons (Horne’s Trs 1952 SC 70). It requires to be exercised with extreme caution and restraint (Gibsons Trs 1933 SC 190 at p 211). As with the equivalent remedy available to the High Court of Justiciary, it is designed to provide a remedy in the event of unusual, unforeseen or unexpected circumstances. (A modern example...
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Appeal By The Council Of The Law Society Of Scotland Against The Scottish Legal Complaints Commission (slcc)
...officium is an extraordinary jurisdiction to be employed only in exceptional circumstances and for compelling reasons (G Petitioner, 2015 SLT 461 paragraph [8]). The nobile officium must be exercised “with extreme caution and restraint” (G Petitioner paragraph [8]). In the context of legisl......