Petition To The Nobile Officium By Spencer James Mellors
| Jurisdiction | Scotland |
| Judge | Lord Cameron of Lochbroom,Lord Justice Clerk,Lord MacLean |
| Court | High Court of Justiciary |
| Date | 18 October 2002 |
| Published date | 18 October 2002 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lord Cameron of Lochbroom Lord MacLean | Appeal No: Misc. 285/01 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in PETITION to the nobile officium by SPENCER JAMES MELLORS Petitioner; ______ |
For the petitioner: J Carroll, Solicitor Advocate; Carr & Co.
For the respondent: Targowski, QC, AD; Crown Agent
18 October 2002
Introduction
[1]This is a petition to the nobile officium of the court. The petitioner craves the court inter alia to set aside an interlocutor of the court dated 22 July 1999 by which an appeal by the petitioner against conviction was refused (cf. Mellors v HM Adv, 1999 SCCR 869), and to quash the conviction.
[2]On 2 July 1996 at Glasgow High Court the petitioner was convicted of the following charges:
"(1)on 29 October 1995 at the house at 67 Crawford Drive, Old Drumchapel, Glasgow, you did assault [name], care of Drumchapel Police Office, Glasgow, force her to remain in said house against her will, seize hold of her by the shoulders, push her onto a bed, forcibly remove her clothing, kneel on top of her, repeatedly struggle with her, repeatedly place your hands round her neck and compress her neck, compel her to lie face down on a bed, point to a scalpel and repeatedly threaten her with violence if she did not comply with your demands or attempted to leave said house, lie on top of her and rape her; thereafter force her to take your private member into her mouth, slap her on the face, repeatedly bite her on the hand, growl at her, seize hold of her by the hair, pull her towards you and bite her on the face, place a cord round her neck and repeatedly tighten same, penetrate her hinder parts with a candle, penetrate her private parts with said candle, repeatedly strike her on the head with said candle, tie said cord around a leg of the bed and entwine your fingers in her hair forcing her to remain on said bed against her will; thereafter force her to take your private member in to her mouth and emit semen in her mouth, bite her on the hand, head and body, further tighten said cord around her neck, lie on top of her and rape her; thereafter force her to take your private member in to her mouth and emit semen in her mouth, all to her injury and to the danger of her life and repeatedly threaten to harm her and her child if she reported said assault and rape;
(2)having committed the crime libelled in charge (1) hereof and being conscious of your guilt in respect thereof and having appeared at Glasgow Sheriff Court on 8 December 1995 on a Petition libelling inter alia assault to injury and danger of life and rape and having been committed until liberated in due course of law in custody in respect of said Petition and further knowing that on 8 December 1995 warrants were granted by the Sheriff of Glasgow and Strathkelvin at Glasgow authorising James Rodger, MB, ChB, Police Casualty Surgeon, care of Motherwell Police Office, Motherwell to obtain from you samples of blood and saliva and authorising Donald Gordon MacDonald, RD, ADC, BDS, PhD, Professor of Oral Pathology, University of Glasgow Dental School, 378 Sauchiehall Street, Glasgow, to obtain from you dental impressions, dental measurements and photographs, you did on various occasions between 15 February 1996 and 21 February 1996, both dates inclusive, at Partick Police Office, Dumbarton Road, Glasgow and at the Prison of Barlinnie, Lee Avenue, Glasgow, repeatedly resist, obstruct, hinder and frustrate said James Rodger and said Donald Gordon MacDonald, in the execution of said warrants, repeatedly prevent said James Rodger from obtaining from you samples of blood and saliva and repeatedly prevent said Donald Gordon MacDonald from obtaining from you dental impressions, dental measurements and photographs and all this you did with intent to defeat the ends of justice and you did thus attempt to defeat the ends of justice;
(3) on 17 April 1996 at the Prison of Barlinnie, Glasgow you did resist, obstruct, molest and hinder John Riley, Sergeant, Strathclyde Police, then in the execution of his duty, struggle with him and attempt to bite him on the hands: CONTRARY to the Police (Scotland) Act 1967, Section 41(1)(a);
(4)on 17 April 1996 at the Prison of Barlinnie, Glasgow you did resist, obstruct, molest and hinder Derek Ingram, Constable, Strathclyde Police, then in the execution of his duty and did spit saliva at him: CONTRARY to the Police (Scotland) Act 1967, Section 41(1)(a);
and
(5)you being an accused person and having been granted bail on 24 October 1995 at Edinburgh Sheriff Court in terms of the Criminal Procedure (Scotland) Act 1975 and the Bail etc (Scotland) Act 1980 on the condition inter alia that you would not commit an offence while on bail did on dates and at places libelled in charges (1), (2), (3) and (4) hereof fail without reasonable excuse to comply with said condition, in respect that you committed the offences libelled in charges (1), (2), (3), (4) hereof: CONTRARY to the Bail etc (Scotland) Act 1980 Section 3(1)(b)."
The petitioner was sentenced to imprisonment for a total of 9 years and 9 months.
[3]The petitioner appealed against the conviction. On 22 July 1999 this court refused the appeal. Section 124 of the Criminal Procedure (Scotland) Act 1995, so far as relevant to that appeal, provides as follows:
"(2) ... 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 ... "
The present petition
[4]The petitioner has now invoked the nobile officium on the ground that, at his appeal, he did not receive a fair trial before an impartial tribunal in terms of article 6.1 of the European Convention on Human Rights. He contends inter alia that the decision of the court was vitiated by the participation in it of Lord Justice General Rodger. If that contention is well-founded, it will follow that the appeal was not heard by a properly constituted court and therefore that the interlocutor of the court was invalid. It is agreed that, if that is the case, the nobile officium of the court provides a remedy (Hoekstra v HM Adv (No 2), 2000 JC 308).
The prosecution, the trial and later events
The proceedings before the trial
[5]The complainer on the rape charge was a prostitute. The Crown case was that in the morning of Sunday 29 October 1995 the petitioner had met her in the Anderston area of Glasgow and had taken her to his flat in Drumchapel, the locus of charge (1), and committed the acts libelled.
[6]On the same date, the petitioner was involved in an incident in the centre of Glasgow when he was driving a car and was chased by the police. This incident led to his being charged with the attempted murder of a policeman and with certain road traffic offences. On 31 October 1995 the petitioner appeared on petition before the sheriff at Glasgow on these charges. He was committed for further examination. Bail was opposed by the procurator fiscal and was refused.
[7]On 3 November 1995, the circumstances giving rise to the charge of rape were reported by the police to the procurator fiscal at Glasgow. At that stage the petitioner had been questioned by the police about the allegation of rape while he was detained at a police station on the attempted murder and related charges; but he had not been charged with rape.
[8]On 7 November 1995 the petitioner appeared before the sheriff on the petition relating to the attempted murder and related charges and was fully committed. Bail was again opposed by the procurator fiscal and was refused. On the same date the then Lord Advocate, Lord Rodger of Earlsferry, demitted office on his appointment as a Senator of the College of Justice.
[9]On 30 November 1995 the petitioner was arrested and appeared on petition before the sheriff at Glasgow on the charge of rape.
[10]The Crown did not pursue the charge of attempted murder. Instead, the Crown indicted the petitioner for a contravention of section 2 of the Road Traffic Act 1988 and certain other statutory and common law offences. The petitioner was acquitted on all of those charges.
[11]Thereafter the petitioner was indicted for trial at Glasgow High Court on the charges that we have quoted. His trial took place between 24 June 1996 and 2 July 1996. He was defended by Mr Michael McSherry, solicitor advocate.
The special defence of alibi
[12]The petitioner lodged a special defence of alibi to the rape charge. The alibi, as it came out in the evidence, was to the effect that at about 4am - 5am on 29 October 1995 he was being chased by the police through the streets of Glasgow; that he had then driven back to his home; that he had later gone to the home of a girlfriend for several hours; and that he had then gone to a public house in Glasgow where he had remained until about 6pm.
The special defence of incrimination
[13]The petitioner also lodged a special defence of incrimination to the rape charge naming a cousin David Clark Mellors who, it was said, had lived in the petitioner's flat for some time and was the only other person with a key to it. During the course of the trial Mr McSherry moved to amend the special defence by substituting the name David Grant Mellors. He said that information from the accused was to the effect that David Clark Mellors was an uncle, sometimes known as Davie Clark. It had then emerged that David Clark Mellors might be a cousin of the accused. The defence had precognosced a Crown witness from the Registrar's Office and had been advised that no such person existed but that there did exist a person called David Grant Mellors, a cousin of the accused. Mr McSherry's motion was refused. According to the minutes of the trial, Mr McSherry then "intimated the defence position to be that a person known to the accused as David Clark Mellors committed the offence in charge 1, whilst conceding that no person of that name...
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