Steven Telford V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Bonomy,Lord Justice Clerk,Lord Carloway,Lord Hardie |
| Neutral Citation | [2012] HCJAC 88 |
| Year | 2012 |
| Date | 26 April 2012 |
| Court | High Court of Justiciary |
| Docket Number | XC134/10 |
| Published date | 15 June 2012 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lord Carloway Lord Hardie Lord Bonomy | [2012] HCJAC 88 Appeal No: XC134/10 OPINION OF THE LORD JUSTICE CLERK In the application by STEVEN TELFORD Applicant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Act: Shead; John Pryde & Co (for Turnbull McCarron, Glasgow)
Alt: Shand QC AD; Crown Agent
26 April 2012
[1] I agree with the Opinion of Lord Carloway.
[2] Towards the end of the hearing on this application Mr Shead acknowledged that he did not challenge my colleagues' recollection of the hearing that took place on 10 August 2011, namely that Miss Mackenzie, who appeared for the applicant in Mr Shead's absence, told the court that no further grounds of appeal were to be argued and that therefore it would be appropriate that the appeal should simply be refused.
[3] That being the case, it is now apparent that the incompetent petition to the nobile officium that was lodged in November 2011 was based on averments that were manifestly untrue.
[4] When I refused to grant a first order on that petition, those advising the applicant, notwithstanding paragraph 13 of Schedule 6 to the Scotland Act 1998, sought a hearing to enable counsel to move for leave to appeal to the Supreme Court against that decision on some unspecified devolution issue. When that application was refused, the applicant's agents made a further application for leave to appeal to the Supreme Court. That application was based upon an Opinion of Mr Shead which again proceeded on an incorrect account of the hearing held on 10 August 2011. I refer to Lord Carloway's narration of the history of the case (infra paras [15]-[17]).
[5] In order to resolve the issue once and for all, we convened a hearing to consider the application. At the hearing Mr Shead confirmed that leave to appeal to the Supreme Court was being sought for the purpose of arguing Ground of Appeal 2. That course would not be open to the applicant if it were the case that Miss Mackenzie had unequivocally given up the remaining grounds of appeal. When we eventually obtained a straight answer from Mr Shead on the question whether he challenged the recollection or the integrity of my three colleagues who had constituted the Bench on 10 August 2011, he said that he did not do so.
[6] That being so, I consider that this application falls to be refused for the reasons that are given by Lord Carloway.
[7] I wish only to add that the time, trouble and expense incurred in consequence of the petition to the nobile officium and of the present application would have been avoided if the correct account of the hearing on 10 August 2011 had been accepted on behalf of the applicant at the outset. The petition to the nobile officium and the Opinion of Mr Shead were based on the assertion that the remaining parts of Ground of Appeal 1 had not been withdrawn, but that it had been accepted that Ground of Appeal 2 was not to be pursued. The present application seeks to revive Ground of Appeal 2. It is therefore regrettable that Mr Shead not only failed to produce an affidavit from Miss Mackenzie giving her account of the hearing on 10 August 2011 but, as he told us, had not even discussed that matter with her. It is disappointing that both the petition and the application should have been presented in such circumstances.
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lord Carloway Lord Hardie Lord Bonomy | [2012] HCJAC 88 Appeal No: XC134/10 OPINION OF LORD CARLOWAY in the application by STEVEN TELFORD Applicant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Act: Shead; John Pryde & Co (for Turnbull McCarron, Glasgow)
Alt: Shand QC AD; Crown Agent
26 April 2012
[8] On 4 October 2004, at the High Court in Glasgow, the applicant pled guilty to the murder of a woman living in a flat in Allison Street by setting fire to her block of flats and causing an explosion. He was sentenced to life imprisonment with a punishment part of ten years.
[9] Notwithstanding his plea of guilty, on 23 February 2010 the applicant was allowed to lodge a Note of Appeal late and leave was granted at the first sift. The grounds of appeal were:
"1. ... [The appellant's] plea was tendered on the basis that he was acting in concert with others. His role was to purchase cans of petrol...
The libel... does not aver an assault on the deceased nor does it aver that there was any deliberate act intended to cause physical injury.
Accordingly the libel does not disclose a sufficient basis for a conviction for murder.
Separatim. There was insufficient causal connection between the acts of the appellant and the death of the deceased.
Separatim. On the Crown narrative it could not be said that the appellant had subscribed to a common purpose which included pouring petrol in the flat and setting fire to the premises or that in any event he had subscribed to a murderous purpose.
2. ...the libel did not provide sufficient notice of the crime the appellant was alleged to have committed. He was entitled to such notice in terms of Article 6(3) & 6(1) [of the European Convention]...
In the circumstances there has been a miscarriage of justice".
[10] The appeal was appointed to be heard at the same time as one relative to the co-accused Samuel Petto, who had also pled guilty. Both cases raised a similar issue of principle, notably whether the libel, which did not aver an assault or intention to cause injury to a person, could instruct a relevant charge of murder. If it could not, the pleas of both accused had been tendered in error and they ought to be allowed to withdraw them. A diet was assigned at which the common issue was considered by a bench of five judges. Mr Shead appeared for the applicant at that diet.
[11] On 10 August 2011 the appeal was rolled for an advising at which the Opinion of the Lord Justice Clerk and the concurring Opinions of the other members of the court were issued to the parties. The applicant was personally present at the advising and was represented by counsel and agents. The Opinions of the Lord Justice Clerk (see Petto v HM Advocate 2011 SCCR 519) made it clear (Petto para [10]; Telford para [6]) that: (1) there was no substance in the argument that the libel was irrelevant; (2) in any event, no timeous objection had been taken to its relevancy; and (3) the appellants had not advanced a sound basis upon which to allow them to withdraw their pleas.
[12] At the advising, the bench consisted of Lords Carloway, Hardie and Bonomy. The court adjourned to enable the applicant's counsel, who was Miss Mackenzie in place of Mr Shead, to consider the written Opinions in detail, to take instructions and to state the applicant's position relative to any remaining grounds of appeal which he wished to argue. In that connection, although Mr Petto's appeal was obviously exhausted, the applicant's appeal was to be continued in respect of any grounds which had not been argued at the appeal hearing. It was important therefore for the court to understand if the applicant wished to insist upon any remaining grounds. Had his counsel done so, a further hearing would have been appointed to deal with them.
[13] The court reconvened. It offered the applicant's counsel yet further time for consideration, but this was declined as unnecessary. The following exchange, which chanced to have been recorded, then took place in the presence of the applicant and agents:
| Miss Mackenzie | "... having perused both judgments it seems that the point made in ground number 2 has been covered by the opinion issued by the court ... and its been clarified... |
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