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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Justice General
Lady Cosgrove
Lord Marnoch
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[2006] HCJAC 27
Appeal No: MISC. 221/05
OPINION OF THE COURT
delivered by THE LORD
JUSTICE GENERAL
in
PETITION
to the nobile officium
by
RONALD COCHRANE
Petitioner;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
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Petitioner: A. Brown; Gilfedder
& McInnes, Edinburgh
Respondent: R. Clancy, A.D.; Crown Agent
7 March 2006
[1] The
present petitioner was, in October and November 2000, tried in the Sheriff
Court at Perth on an
indictment which included a charge in the following terms:
"(2) between 1 November 1997 and 7 November
1997, both dates inclusive, at the house occupied by you at 9 Mayfield Road,
Scone, you did conspire with William Francis Cardno, 4 Goshen Road, Scone and
Scott Middleton, 47 Kincardine Road, Auchterarder, to break into Langside
Farmhouse, Langside Road, Braco, and in furtherance of said conspiracy you did
provide said William Francis Cardno and Scott Middleton with a motor van and
said William Francis Cardno and Scott Middleton did break into said premises
and there rob [an elderly occupier of various items of property]".
He was convicted of that, among
other, charges. He appealed against
conviction to the High Court of Justiciary.
On 6 November
2002 the court refused his appeal. The decision is reported as Cochrane v H.M. Advocate 2002 S.C.C.R. 1051.
[2] The
ground of appeal argued before the court was that the conviction of the
appellant on charge (2) constituted a miscarriage of justice in respect that
the matter of which he was charged and convicted did not constitute a crime
according to the law of Scotland - the charge as framed alleged no more than a
conspiracy to break into the house, no intention to steal or to rob being
averred. The court concluded that, while
conspiracy merely to break into a house was not a crime according to the law of
Scotland and the
charge against the appellant was accordingly irrelevant, that irrelevancy,
which had not been raised in the court of trial, was not a ground on which the
conviction could be set aside - see paras. [15] - [19] of the report.
[3] Following
the refusal of his appeal the petitioner made an application to the Scottish
Criminal Cases Review Commission. That
application raised a number of issues concerning the appellant's conviction on
charge (2) and his unsuccessful appeal against that conviction. Among them was the High Court's treatment of
his contention that the charge of which he stood convicted did not disclose a
crime according to the law of Scotland. The Commission in the event decided not to
make a reference to the High Court. In a
Statement of Reasons dated December 2003, given under section 194D(5) of the
Criminal Procedure (Scotland) Act 1995, the Commission stated that it had fully
examined the matters raised in the applicant's case, that the outcome of these
enquiries was that the Commission believed that a miscarriage of justice, in
terms of procedure, might have occurred in respect of the appellant's
conviction but that it did not consider that it was in the interests of justice
that the case be referred to the High Court.
That decision reflected the grounds on which the Commission may, under
section 194C of the Act, so refer a case. In elaborating on its reasons the
Commission stated that, if a plea to the relevancy had been taken at the first
diet and the indictment had been dismissed, the Crown would have had time to
serve a fresh indictment within the applicable time limit. It also, under reference to the outcome of
its investigations, observed that
"In this
case there is no other logical explanation for the conspiracy than that its
purpose was to break into the complainer's house with intent to steal. The jury was clearly satisfied that the
applicant was involved in the conspiracy to break into the house. It can be inferred that the jury would have
been satisfied that the purpose of the conspiracy was to break into the house
with intent to steal".
A Supplementary Statement (issued
in November 2004), confirmed the Commission's position, its view that a
miscarriage of justice might have occurred having been fortified in the
meantime by the decision of a five judge bench in Jones v Carnegie 2004 SCCR 361 which had disapproved of the ground of decision in Cochrane v H.M. Advocate.
[4] The
petitioner has now presented to this court a petition in which he seeks to
invoke its nobile officium and invites it to set aside
the interlocutor of 6 November
2002 with a view to having his conviction on the conspiracy
charge quashed.
[5] Mr.
Brown for the petitioner described the nature of this application as being for
"correction" of the interlocutor of 6 November 2002.
The decision of the court had plainly been wrong, as had been confirmed
by the observations of the bench of five judges in Jones v Carnegie at para.
[45]. It was acknowledged that on one
line of authority a decision of the High Court in the exercise of its appellate
jurisdiction was final subject only to a reference to the Commission or, where
a devolution issue arose, an appeal to the Judicial Committee of the Privy
Council. But there were other cases in
which the court had in a petition to the nobile officium
set aside such a decision. Reference was
made, by way of illustration, to Mathieson,
Petitioner 1980 S.L.T. (N) 74, Perrie,
Petitioner 1991 S.C.C.R. 475, Beattie,
Petitioner 1992 S.C.C.R. 812 and Allan,
Petitioner 1993 S.C.C.R. 686. It was
clear on authority, which had existed prior to November 2002, that the High
Court could, on appeal, set aside a conviction on the ground that it did not
disclose a crime according to the law of Scotland, even if the point had not
been taken in the court below (Aitkenhead
v Cuthbert 1962 J.C. 12). In effect the petitioner stood convicted of a
nullity.
[6] The
Advocate depute in response submitted that where, as here, a petitioner had
exhausted his remedies by way of appeal under Part VIII of the 1995 Act and
where there was, or had been, an alternative procedure available to him to
challenge the conviction, he was not entitled to invoke the nobile officium; it did not matter that the alternative
procedure had not in the event resulted in a successful challenge to the
conviction. He referred to Anderson v H.M. Advocate
1974 S.L.T. 239 and to Windsor,
Petitioner 1994 JC 41;
1994 S.C.C.R. 59. If the
present petitioner was correct, section 194C(b) lost
its material content. In so far as Windsor, Petitioner (or other cases)
recognised that the nobile officium could be invoked when the
appeal court had acted in excess of power, that situation had not here been
met.
Discussion
[7] Section
124(2) of the 1995 Act provides that, subject to Part XA of the Act (which is
concerned with the Scottish Criminal Cases Review Commission) and paragraph
13(a) of Schedule 6 to the Scotland Act 1998 (which is concerned with an appeal
on a devolution issue to the Privy Council),
"every interlocutor and sentence pronounced by the High Court
under this Part of this Act [appeals from solemn proceedings] shall be final
and conclusive and not subject to review by any court whatsoever ... ".
Notwithstanding the terms of that
provision, there have been occasions on which this court has, in the exercise
of its nobile officium, altered an interlocutor
disposing of an appeal under Part VIII.
The primary issue in the present case is whether the nobile officium can competently be invoked to challenge the interlocutor
of 6 November 2002.
[8] In
Anderson v H.M. Advocate
Lord Justice General Emslie described the nobile officium of the High Court of Justiciary as a "valuable but
exceptional jurisdiction". Having
referred to passages from Alison,
Criminal Law of Scotland and Moncrieff,
Review in Criminal Cases he continued at page 240:
"These
classical descriptions of the power have been accepted by this court as
authoritative in all cases in which the scope of its power under the nobile officium has been called in
question, and as the cases show, have been interpreted to mean that the power
will only be exercised where the circumstances are extraordinary or unforeseen,
and where no other remedy or procedure is provided by the law".
Having referred to two examples of
the exercise of "this very special power", his Lordship continued:
"In both of
these cases the power was exercised because no procedure or remedy of any kind
was available to the petitioners. To
complete this review of the nature, scope and limits of the power we have only
to add that the nobile officium of
this court, and for that matter of the Court of Session, may never be invoked
when to do so would conflict with statutory intention, express or clearly
implied ... ".
[9] It
is plain, in my view, that in this case an alternative remedy or procedure was
provided by the law, namely, procedure by application to the Commission - a
course which the petitioner in fact adopted.
It was not suggested to us that that course was not competently open to
the petitioner; nor
can we see any basis upon which it could properly be said to have been
precluded. As it was open to him, it was
in our view the procedural course which, if he sought a remedy, he was obliged,
in accordance with the legislative scheme, to pursue. That procedure, once initiated, allowed the
Commission to make wide-ranging enquiries before it turned to consider whether the
cumulative test, prescribed by section 194C, for the making of a reference was
satisfied, namely, that the Commission believed:
"(a) that a miscarriage of justice may have
occurred; and
(b) that it is in
the interests of justice that a reference should be made".
Thus Parliament clearly intended
that, in relation to this mode of redress, a wider issue than the possibility
of a miscarriage of justice should be addressed. The circumstance that the petitioner's
application did not result in a reference does not mean, in our view, that he
may start again by an application to the nobile officium. The language used in McWilliam, Petitioner 2002 S.C.C.R. 656 at page 659E-F should not
be understood as intended to suggest otherwise; in any event, that language was
clearly not necessary for the decision in that case. The petitioner's remedy is, in our view,
restricted to persuading the Commission, if he can, that it should hereafter
make a reference. The circumstances in Windsor, Petitioner are in our view
parallel to those in the present case.
[10] Reliance was placed by counsel for the petitioner on certain
observations made by Lord Justice Clerk Ross in Windsor at page
49G-I where his Lordship, under reference to two unopposed applications (James McLellan, Petitioner, unreported,
4 December 1990 and Allan,
Petitioner) stated that it had been
"recognised that the court may exercise its nobile officium in order to alter or
correct an order which has been pronounced by the court in the exercise of its
appellate jurisdiction in cases where the court has exceeded its powers".
He added that in Windsor it was not
alleged that the court had exceeded its powers when it dealt with the
petitioner's statutory appeal. Neither
of the other judges discussed the cases referred to.
[11] James McLellan,
Petitioner is a somewhat special case.
There the court had intended throughout to impose, in a road traffic
case, the minimum number of penalty points for the offence. The court had been misled by the terms of an
inaccurately framed notice of penalty in regard to what that number was; when the inaccuracy
was discovered after the disposal of the appeal the court, on an application to
the nobile officium, quashed the
decision of the appeal court and imposed the accurate number of penalty
points. That case is accordingly an
illustration of an extraordinary or unforeseen circumstance in which the court
corrected an interlocutor to give effect to what had plainly always been its
intention, namely, to impose the minimum number of penalty points. That is clearly a situation distinguishable
from the present case.
[12] Allan, Petitioner, on
the other hand, can be regarded as a case in which it was recognised that the
court had, in disposing of the appeal, exceeded its powers. There it had quashed a sentence which had not been appealed against, a course not open to it in
terms of the legislation.
Similarly in Beattie, Petitioner
Lord Justice General Hope figured, at page 816D, a situation in which the court
had done something in the exercise of its appellate jurisdiction which it was
not permitted to do by Parliament. In
such a case, he continued:
"[t]here
may be said to have been a circumstance which was unforeseen, because the
statutory provisions for the finality of appeals assume that the appeal court
will exercise its appellate jurisdiction in accordance with the statutes".
[13] Mr. Brown sought to relate the present circumstances by analogy
to those figured in Beattie, Petitioner.
He referred to the approach of the court
in Aitkenhead v Cuthbert where, in a summary appeal, it was held that,
notwithstanding that the point had not been taken in the court below, the court was entitled in the course of the appeal to
take notice of the fundamental irrelevancy of a charge and to quash the
conviction. Lord Guthrie, having
considered the relevant statutory provisions on summary appeals, added that the
High Court had
"an inherent power by the common law of Scotland to prevent
injustice and will exercise that power where circumstances require it to do
so. One of the circumstances in which
that power may be exercised is where there has been a conviction on an
incompetent charge".
Lord Guthrie speaks of a power
which may be exercised, not one which the court is bound to exercise - though
no doubt if the matter arises in appeal proceedings the court will ordinarily
do so.
[14] In our opinion the analogy sought to be drawn with Beattie, Petitioner is not apt. In the petitioner's appeal the High Court did
not do something in the exercise of its statutory appellate jurisdiction which,
in terms of the legislation governing that jurisdiction, it was not permitted
to do by Parliament. Nor did it act
contrary to the terms of any other enactment.
What the court did, the relevant authorities not having been cited to
it, was to err in a matter of law: it
failed to recognise that the terms of section 118(8) of the 1995 Act did not
preclude it from exercising its common law power to quash a conviction which
did not, in its express terms, disclose a crime known to the law of
Scotland. The making of an error, of
fact or of law, by an appeal court, however regrettable, is not an unforeseen
circumstance. It is one of the very
situations with which that reference procedure is designed to deal. In so far as an error of law may, in the
petitioner's case, have led to a miscarriage of justice, the petitioner's
remedy lay, and lay only, in our opinion, in an application to the
Commission. As the history of the case
has demonstrated the nature of the particular error of law did not prevent it
being amenable to such a reference. In
these circumstances the present petition is, in our view, incompetent.
[15] In any event the object of a petition to the nobile officium is to avoid injustice or oppression. While in many cases the fact that a person
stands convicted of what is not a crime according to the law of Scotland will
demand redress, this is not, in our view, inflexibly so. The circumstances disclosed by the Commission's
report suggest strongly that it was not in the interests of substantive justice
that the petitioner's conviction be quashed.
Notwithstanding reference by Mr. Brown to Crombie v Clark 2001
S.C.C.R. 231 (where there had been a reference by the Commission), we are not
persuaded that the circumstances disclosed in the Commission's Report can, in
the absence of any challenge being made to them, be ignored. Accordingly, had we been persuaded that the
petition was competent, we would have refused it on
its merits.
