http://www.scotcourts.gov.uk/opinions/299_01.html
APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
Lord Marnoch
Lady Cosgrove
Lord Reed
Lady Paton
MISC299/01
OPINION OF THE COURT
delivered by THE LORD JUSTICE CLERK
in
PETITION
to the
Nobile Officium of the High Court of Justiciary
by
MARY RYAN
Petitioner;
_______
Petitioner: Davidson QC; Davies: O'Donnell, Vaughan & Co, Solicitors
Respondent: Batchelor QC, (Advocate Depute); Crown Agent
6 February 2002
Introduction
[1] This is a petition to the nobile officium of the court. The petitioner craves the court to hold that she may be granted leave to appeal against the refusal of leave to appeal against her conviction and sentence.
[2] On 3 September 1999 at Glasgow High Court the petitioner was tried with two co-accused and was convicted of murder, theft and an attempt to defeat the ends of justice. She was sentenced to life imprisonment with a minimum recommendation of 15 years.
The grounds of appeal
[3] The petitioner sought leave to appeal against conviction and sentence. Her grounds of appeal were (1) that there had been insufficient evidence to justify the conviction of murder; (2) that evidence was available that had not been led at the trial which was favourable to her case; (3) that her representation by senior counsel at the trial had been defective to a degree that resulted in a miscarriage of justice in respect (a) that senior counsel was frequently absent during the course of the trial and (b) that on the information available to him he ought to have advised her to incriminate one of her co-accused.
The refusal of leave to appeal
[4] The application for leave to appeal came before a single judge in accordance with section 107(1) of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act). On 31 August 2001 the judge refused leave on the view that each of the grounds tabled by the petitioner was unarguable. He also refused leave to appeal against sentence.
[5] On 10 September 2001 a Depute Clerk of Justiciary wrote to the petitioner's solicitors intimating the refusal of leave to appeal and drawing attention to the time limit for the lodging of an appeal against that decision. The time limit is laid down by section 107(4) of the 1995 Act, which provides as follows:
"Where leave to appeal is refused under subsection (1) above the appellant may, within 14 days of intimation under subsection (10) below, apply to the High Court for leave to appeal."
[6] The subsection does not provide for the possibility of an extension of the time limit.
The failure to comply with the time limit
[7] It would have been open to the petitioner's solicitors to comply with section 170(4) by sending a short letter to the court simply intimating an appeal against the decision of the single judge. That would have preserved the petitioner's position and would have left open the opportunity to amplify the basis of the appeal before it was considered at the second sift.
[8] Instead, the petitioner's solicitors attempted to obtain advice on the drafting of the appeal from counsel who had defended the petitioner. The petition sets out a chapter of mishaps involving a breakdown in communication between senior and junior counsel and their clerk and deputy clerk. We need not go into the details. It is sufficient to say that the result of these mishaps was that the appeal was not lodged within the time limit.
[9] Senior counsel who argued the present petition was not previously involved in the case. He informed us that senior counsel who conducted the trial accepted responsibility for the failure to meet the time limit. The one person who is beyond any blame in the matter is the petitioner herself.
The consequences of failure to comply with the time limit
[10] It was decided by this court in Connolly v. HM Adv (1997 SCCR 205) that the time limit set out in section 107(4) is not capable of being extended and that the nobile officium is not available in cases where there has been a failure, for whatever reason, to comply with it.
[11] In that case the petitioner applied to the nobile officium craving the court to allow an application for leave to appeal to be made late. At the hearing in that case, counsel for the petitioner conceded that it would not be open to the court to extend that time limit since that would be incompetent (ibid, at page 206B-C); but he invited the court to entertain the application for leave to appeal on a non-statutory basis and to allow it.
[12] The court observed that it has always been emphasised that the nobile officium cannot be invoked where what is sought is contrary to the scheme laid down by an Act of Parliament. With that in mind, the court pointed out that whereas Parliament had provided that the court could waive a failure to comply with certain provisions of the 1995 Act (ibid, s. 129(1) and (3)), the time limit imposed by section 107(4), with which both that case and this are concerned, was not one of those provisions. The court therefore inferred that the time limit in section 107(4) was intended to be mandatory. Since Parliament did not intend that it could be waived or extended, it was not open to the court retrospectively to extend it by the use of the nobile officium. The court therefore refused the petition as being incompetent.
[13] If that decision is correct, the present petitioner has forfeited all further rights of appeal. As it happens, one of the other co-accused has appealed against his conviction and has been granted leave to appeal.
Subsequent procedure
[14] Notwithstanding the failure of the petition in Connolly (supra), the present petitioner has invoked the nobile officium to similar effect and has invited the court to exercise that power on the view that Connolly does not correctly represent the law.
[15] At a hearing on 11 December 2001 counsel for the petitioner asked the court to reconsider the decision in Connolly the consequences of which, according to the advocate depute, were causing the Crown certain concerns. The court therefore remitted the petition for consideration by a bench of five judges.
The submissions for the petitioner
[16] Senior counsel for the petitioner first founded on the European Convention on Human Rights (the Convention). He argued that there had been a breach of article 6.1 in respect that the petitioner had not been given a fair and proper hearing and a breach of article 6.3 in respect that he had not been given effective legal representation. He accepted that the fact that the legislation imposed a procedural time limit which the petitioner's advisers had failed to observe was not sufficient to constitute a breach of article 6. He said that he would refer us to case law on article 6, but that was the last that we heard on that subject. We have therefore been given no basis on which we could accede to the case so far as it is presented under the Convention.
[17] That left senior counsel with the argument that Connolly was wrongly decided. We found this a difficult argument to understand. It began with counsel's accepting that the concession made on behalf of the petitioner in Connolly (at p. 206 B-C), to the effect that the time limit under section 107(4) could not be extended at the hands of the court, was correct at that time; but he argued that the concession was no longer well-founded because of the impact of Convention rights (Human Rights Act 1998, s. 3). That, however, is not a point that we can sustain because we have not been given any basis in the case law under article 6 of the Convention to support the contention that section 107(4) is incompatible with it.
[18] In Connolly counsel for the petitioner, having made the concession that we have described, invited the court to hear the application for leave to appeal on what he described as "a non-statutory basis." In this case counsel made a similar plea by reference to two cases which, he said, supported the proposition that the extension of a statutory time limit was not considered to be incompetent per se (Scott, Petr., 1992 SCCR 102; HM Adv, Petr., 1994 SCCR 136) and one case which, he said, demonstrated that the court could in certain cases over-ride a statutory provision (Monterroso v HM Adv., 2000 SCCR 974). On the basis of these authorities, and "in the broad interests of justice," counsel invited us to grant the prayer of the petition.
The Crown's position
[19] The advocate depute expressed sympathy with the plight of the petitioner. While submitting that section 107(4) served a purpose in ensuring that there was finality to the appeal process and that it should not be prolonged by extensions of time, he accepted that the consequences of that were drastic. Nevertheless, he intimated that the Crown insisted that Connolly was correctly decided. He adopted the ratio of that case. Moreover, the decision of the single judge was "an interlocutor" within the meaning of section 124(2) of the 1995 Act (Perrie v HM Adv., 1991 SCCR 475, at 480D) and therefore was final and conclusive and not subject to review. To grant the petition would be to cut across section 124. The answer to the problem, he said, lay with the legislature.
Decision
[20] The plain and undisputed fact is that the petitioner's solicitors were well aware of the time limit; that they had it in the forefront of their minds throughout their efforts to obtain advice from counsel; and that, for the reasons to which we have alluded, the time limit was not complied with.
[21] This petition can succeed only if counsel for the petitioner can satisfy us that Connolly was wrongly decided, or is distinguishable, or has been superseded by the Human Rights Act 1998.
[22] For the reasons that we have given, we are not persuaded that the 1998 Act has any bearing on the decision in Connolly. We have been given no cogent reason for holding that Connolly was wrongly decided. We ourselves can see no such reason. Counsel for the petitioner has offered us no reason why this case is materially distinguishable. The argument based on the broad interests of justice is, in our view, unstatable. Scott, Petr. and HM Adv, Petr. were decisions on statutory provisions that have no resemblance to section 107(4) and give no guidance on the interpretation of it. Monterroso was a case about the allowance of bail to a person detained under the Immigration Act 1971. It provides no conceivable guidance in the resolution of this case and we say no more about it.
[23] We consider that Connolly was correctly decided and we adopt the ratio of it. This is simply a case where by reason of the fault of those advising the petitioner, a statutory time limit has been missed. That is not a circumstance that can justify the use of the nobile officium in the face of a clear statutory intention (Fenton, Petr., 1982 SLT 164; Anderson v HM Adv., 1974 SLT 239, at p. 240). We shall therefore refuse the prayer of the petition.
[24] The result in this case seems clear to us. Nevertheless it causes us concern. We accept that section 107(4) serves the purpose of ensuring the expeditious prosecution of appeals; but other time limits governing related procedural steps are expressly capable of extension (eg s. 110(1) and (2) (lodging of note of appeal), ss. 109(1) and 111(2) (intimation of intention to appeal) and 115 (lodging of written case)). We cannot see what it is that makes it necessary for section 107(4), in contrast with those other provisions, to be so inflexible in its operation, even where an extension of time would cause no prejudice to the Crown or to any other party.
[25] In a case similar to this, a situation could arise where one co-accused who appealed timeously succeeded on the very point which another co-accused was prevented from raising by reason of a failure, even by a day, to comply with section 107(4). The result then would be that the conviction of the co-accused would be set aside while the other co-accused would have to serve a life sentence. In our view, that would be a consequence out of all proportion to the culpability, if there was any, of a failure to comply with the time limit. That suggests to us that the provisions of section 107(4) should be reconsidered by the legislature.
