Scottish High Court of Justiciary Decisons

At advising, on 7th December 1993—

LORD JUSTICE-CLERK (Ross)—On 27th November 1985, the petitioner was convicted after trial at Edinburgh High Court by the unanimous verdict of a jury on charges of assault and robbery, attempted murder and contraventions of sec. 17 of the Firearms Act 1968. He was sentenced to 20 years' imprisonment. The petitioner subsequently appealed against his conviction and sentence. On 21st November 1986 the High Court sitting as a court of criminal appeal refused the petitioner's appeal against conviction, but allowed his appeal against sentence in that it substituted a sentence of 14 years for the sentence of 20 years imposed by the trial judge.

In this petition it is stated that in the course of preparation of his defence for the trial, the petitioner had asserted that while he was detained in police custody at Wester Hailes police office on 31st July 1985 shortly after the offence referred to in the indictment had been committed, he had been shown to two boys by officers investigating the case. Both boys had been eyewitnesses to the incident. The petitioner maintained that at that time neither of the boys had identified him as being one of three men whom they had seen committing the assault and robbery.

The petitioner also states in the petition that at his trial in November 1985 one of the boys, namely William McEwan, was called to give evidence for the Crown. He gave evidence of what he had seen, and confirmed that he had been taken to Wester Hailes police station on 31st July, and that he had been shown a man in a cell and asked if that was the person he had seen. He gave a negative answer. It is also stated that on 7th August 1985 William McEwan had attended an identification parade and was unable to identify anyone on the parade although the petitioner was on the parade. Prior to the hearing of the appeal on 21 st November 1986, it is stated that the petitioner wrote to the procurator fiscal, Edinburgh, and to the Crown Office concerning the existence of these two boys and that on 1st July 1986 the Crown Office wrote to the petitioner stating that the matter had been fully aired at the trial, and that enquiries made then had failed to identify the incident to which he referred or who the two boys might have been.

Subsequent to the hearing of the appeal, which the petitioner had conducted in person, the Crown Agent wrote to the petitioner on 5th March 1987 stating that the police evidence at the trial had been to the effect that the incident concerning the two boys had not occurred. Something similar was stated by the Crown Agent in a subsequent letter to the petitioner dated 14th March 1988.

In the petition it is stated that on 31st August 1989 the Crown Office informed the petitioner that the Crown authorities had discovered, for the first time, that another boy, David Robertson, had in fact viewed a man in the police cell at Wester Hailes police station. On 30th September 1989 in response to a letter from the petitioner to the Secretary of State for Scotland, the latter wrote to the petitioner advising that David Robertson had been interviewed by the Crown authorities and that, on the basis of the information obtained from him, his testimony would only serve to corroborate the testimony of the boy William McEwan and would be inconclusive of the matter of guilt or innocence. On 17th October 1991 the Secretary of State wrote to the petitioner advising him that there was no action which it would be appropriate for him to take in relation to the petitioner's conviction.

The petitioner maintains that David Robertson was not on the list of witnesses provided by the Crown to the solicitors acting for the petitioner and that he was not cited by the Crown at the trial. His existence was not admitted by the Crown. He further states that David Robertson has now sworn an affidavit in which he states that he had been taken to the police cells and shown a man in the cell and that the man was definitely not one of the men he had seen at the robbery. The petitioner maintains that the evidence of David Robertson would have been significant evidence at his trial. The petitioner further states that the evidence against him at his trial was largely circumstantial, and that the evidence of David Robertson would have been of substantial significance to his defence.

He states that the evidence of David Robertson was credible evidence, that it was reliable and important evidence, and that it was evidence which was likely to have had a material bearing or to have played a material part in the jury's determination of a critical issue at the petitioner's trial, namely, whether he was one of the persons who had been involved in the robbery. He also maintains that the evidence of David Robertson had not been available and could not reasonably have been made available at his trial.

In these circumstances the petitioner has presented this petition which is addressed to the nobile officium. At an earlier hearing the court appointed parties to be heard on the question of competency. Subsequently the petition was continued pending an application being made to the Secretary of State under sec. 263 of the Criminal Procedure (Scotland) Act 1975. On 27th October 1992 the Secretary of State wrote to the petitioner's solicitors under reference to the petition which they had presented requesting that an exercise of the Royal prerogative of mercy be recommended in his favour or that his case be referred to the High Court in terms of sec. 263(1) of the Act of 1975. In this letter the Secretary of State referred inter alia to a number of discrepancies between the affidavit of David Robertson and the precognition taken from him on 18th August 1989. The Secretary of State intimated that he had concluded that David Robertson's statements could not be regarded as important and reliable evidence which would have been likely to affect the view taken by the jury in the matter of the petitioner's innocence or guilt. He accordingly decided to refuse the petition addressed to him on the petitioner's behalf.

Following upon the intimation of that decision of the Secretary of State arrangements were made for a hearing on the competency of this petition to take place. After being addressed by counsel on behalf of the petitioner regarding the background to the presentation of this petition, the court heard the Lord Advocate in support of his plea that the petition was incompetent. The Lord Advocate drew attention to the provisions of secs. 262, 263 and 281 of the Criminal Procedure (Scotland) Act 1975 which are in the following terms: [his Lordship quoted their terms as set out supra and continued:]

The Lord Advocate submitted that the provisions of the statute were clear, and that the words used in sec. 262 meant what they said. On 21st November 1986 the High Court had dismissed the petitioner's appeal against conviction. Accordingly his appeal against conviction could not be reopened except by means of sec. 263. Section 263 permitted a convicted person to invite the Secretary of State to refer his case to the High Court, and the Secretary of State could do so at any time. This meant that he could be invited to take this step on more than one occasion. Moreover the Secretary of State's power to refer a case to the High Court was a very wide one, since he is entitled to do so "if he thinks fit". In the present case the petitioner had invited the Secretary of State to refer his case to the High Court in terms of sec. 263(1), and the Secretary of State had refused to do so. The result was that the decision of this court refusing the petitioner's appeal against conviction was final and conclusive unless the Secretary of State could still be persuaded to refer the case to the High Court in terms of sec. 263(1).

The Lord Advocate pointed out that sec. 262 is dealing with the finality of proceedings, and it was plain from a consideration of both sec. 262 and sec. 281

that the purpose of the legislation was to produce finality. In support of his submissions the Lord Advocate referred to Perrie, Petr.1992 S.L.T. 655 and McCallum, Petr. 1992 G.W.D. 36–2099. Relying on these authorities he contended that the nobile officium was not designed to provide a remedy when Parliament had provided a remedy which had been unsuccessfully invoked. He also submitted that what the court was being invited to do by the petitioner was in effect to set aside the decision of the Secretary of State intimated in the letter of 27th October 1992, and for the court to do that would be depriving the Secretary of State of a jurisdiction which Parliament had conferred upon him. Finally he submitted that the appellant's only remedy now was to renew his application to the Secretary of State.

Counsel for the petitioner submitted that what the petitioner was doing was not attacking the Secretary of State's decision on any legal basis but upon a factual basis. He also submitted that in this petition the petitioner was not inviting the court to revise its previous decision because the matter now raised was not before the appeal court on 21st November 1986. On 21st November 1986 the appeal of the petitioner had been decided on the basis of the grounds of appeal which were before the court on that occasion, and those grounds did not include the matter which was now being raised. He further maintained that since the evidence of David Robertson had not been available at the time when the appeal was heard on 21st November 1986, there had been created a situation of a type with which the nobile officium was designed to deal. He submitted that in the present case there had been unforeseen circumstances in that the evidence of David Robertson had only become available after the appeal had been refused, and he urged the court not to close the door to justice. He referred to Beattie, Petr.1993 S.L.T. 676 and Allan, Petr. 1993 J.C. 181.

At the end of the day counsel maintained that the case fell under the umbrella of the nobile officium because there had been unforeseen circumstances in that new evidence had become available and known after the appeal had been disposed of. He accordingly invited the court to reject the Crown's plea to the competency of this petition.

I entirely accept that the High Court has power to exercise its nobile officium in appropriate cases. In Perrie, Petr.and Beattie, Petr., the Lord Justice-General observed:

"The purpose of the nobile officium is to prevent injustice or oppression where the circumstances are extraordinary or unforeseen and where no other remedy or procedure is provided by the law. But the power cannot be exercised in order to review on the merits a decision taken by the court under the statutory provisions for appeal."

It has, however, 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. Examples of this are James McLellan, Petr., unreported, 4th December 1990 and Allan, Petr. In the former case the application was not opposed by the Crown, and in the latter case there was a concession by the Crown. Moreover the latter case concerned summary procedure to which secs. 262 and 281 do not apply. In the present case it is not alleged that the court exceeded its powers when it disposed of the petitioner's appeal on 21st November 1986.

On the matters raised before us, I am satisfied that the argument of the Lord Advocate is to be preferred. On 21st November 1986, the court refused the

petitioner's appeal against conviction. In terms of sec. 254(1)(a) that meant that the court affirmed the verdict of the trial court. In terms of sec. 262 that decision was a judgment or interlocutor of the High Court which is final and conclusive and not subject to review by any court whatsoever in terms of sec. 262 of the Act of 1975. (As was pointed out in Perrie the word "interlocutor" in sec. 262 covers any judgment or order pronounced by the court.) The only exception to the finality of the proceedings would be if the Secretary of State decided to refer the whole case to the High Court under sec. 263(1). In the present case the Secretary of State has to date refused to refer the case to the High Court, and the necessary consequence is that the judgment of the appeal court remains final and conclusive and cannot be reviewed by the High Court exercising its nobile officium. In my opinion counsel for the petitioner was incorrect when he sought to argue that the finality provisions only applied to the grounds of appeal which were before the court on 21st November 1986. Once the High Court has refused an appeal against conviction and affirmed the verdict of the trial court, that judgment is final and conclusive on all matters which could have been raised in relation to that verdict. The only way in which the matter of the conviction can be reopened is if the Secretary of State decides to refer the case to the High Court under the terms of sec. 263.

In the present case, the petitioner is asserting that the emergence of new evidence means that there have been extraordinary and unforeseen circumstances. In my opinion, the coming to light of this new evidence does not constitute extraordinary and unforeseen circumstances. Parliament has provided for such an eventuality. If new evidence comes to light after the trial and prior to the appeal being heard, the appellant may be able to rely on the provisions of sec. 228(2) and sec. 252(b) of the Act of 1975; if the new evidence emerges later, the appellant may invoke the provisions of sec. 263. Parliament has accordingly provided procedures and remedies to deal with a situation of this kind, and that excludes resort being made to the nobile officium.

I would add that if counsel for the petitioner is right in his contention that the appeal court's decision on 21st November 1986 was final only in relation to any grounds of appeal then argued, the result would be that by invoking the nobile officium an appellant could keep on raising fresh grounds of appeal in a succession of applications. That would be contrary to the spirit and letter of the legislation governing appeals.

I regard the present case as similar to McCallum, Petr. In that case also after an appeal against conviction had been refused, the petitioner sought to invoke the nobile officium so as to allow the court to hear new evidence. In delivering the opinion of the court in that case, I observed that when the appellant's appeal against conviction had been refused, that meant that his entire appeal had been refused. I also observed that what the petitioner was seeking to do was to persuade the High Court to review the decision of the appeal court, and I commented that that was something which the court was not entitled to do. In that case it was held that the only route open to the petitioner was to attempt to persuade the Secretary of State to act under sec. 263. In that case also the Secretary of State had declined to refer the case to the court. I stated in that case:

"If the appellant considers that there is any merit in the issues which he has referred to in his petition, then the only course that he can follow is to seek to

persuade the Secretary of State to refer the case to this court. That is the only way in which this court could reconsider the appellant's case."

It is plain from the terms of the prayer of this petition that what the petitioner is seeking to do is to have the court consider the affidavit evidence of William McEwan and David Robertson and then "to set aside the verdict of the trial court and quash the conviction". He is accordingly seeking to review on the merits a decision taken by the High Court sitting as an appellate court under the statutory provisions for appeals. But except only for a remit by the Secretary of State under sec. 263, the decision of the High Court as an appeal court is final and conclusive. I am accordingly satisfied that we would not be entitled to exercise the nobile officium of this court in the manner proposed by the petitioner. I would therefore move your Lordships to dismiss this petition as incompetent.

LORD MURRAY —The salient averments of this petition may be put as follows. The petitioner was charged inter aliawith assault and armed robbery while acting with others at Wester Hailes, Edinburgh, on 31st July 1985. The robbery was carried out by three masked men. At one point two young boys saw the three masked men beside a van. One man took his mask off and then put it on again. The two boys saw the face of that man. Later, after the petitioner had been taken into custody, each of the boys was asked to view the petitioner in the police cell where he was held. The boys were in the company of a uniformed police officer when this took place. That this viewing of a suspect had occurred was known to the petitioner, to each boy and at least to the uniformed police officer who accompanied them. The petitioner's understanding was that both boys had failed to identify him as one of the robbers.

The petitioner went to trial at the High Court in Edinburgh. One of the boys was a witness at the trial, called for the Crown. The other was not. Indeed in reply to enquiries on behalf of the defence prior to the trial the Crown did not acknowledge the existence of the second boy. On 27th November 1985 the jury convicted the petitioner. He was sentenced to 20 years' imprisonment. He appealed against conviction and sentence. His sentence was reduced to 14 years' imprisonment and his appeal against conviction was refused on 21st November 1986. At this hearing the petitioner sought to raise the issue of the second boy, whom he had attempted to trace after as well as before the trial. He had no ground of appeal directed to that point and the appeal was refused without that issue being considered.

Thereafter by letter to the petitioner dated 31st August 1989 the Crown Office disclosed that a second boy who had viewed the petitioner in the police cell had now been traced by them and had been interviewed. Affidavits from both boys were obtained on behalf of the petitioner. On the basis of those affidavits a petition was presented to the Secretary of State for Scotland in March 1992 requesting him to recommend a pardon under the prerogative of mercy or alternatively to refer the case to the High Court under sec. 263(1) of the Criminal Procedure (Scotland) Act 1975. By letter dated 27th October 1992 the Secretary of State refused the petition.

The petitioner then brought the present petition to the nobile officium before the High Court seeking a hearing upon a prayer for relief for alleged injustice arising out of the foregoing circumstances. The Lord Advocate lodged answers and tabled a plea to the competency of the petition. That plea was debated before the High Court on 22nd October 1993.

The Lord Advocate submitted that, having regard to the provisions of secs. 262 and 263 of the 1975 Act and in light of what had happened, the present attempt to invoke the nobile officium was incompetent. This was clear from Perrie, Petr. 1992 S.L.T. 655 at pp. 657G–I and 658B; and from McCallum, Petr. 1992 G.W.D. 36–2099. The nobile officium was not available where Parliament had expressly provided a remedy even if that remedy had been exhausted. The petitioner had appealed against conviction under sec. 254(1) of the 1975 Act. That appeal had been refused and the case thereby finally disposed of within the meaning of sec. 262 and 281. The decision could not be reconsidered or circumvented except by the express provisions of sec. 263 which preserved the Crown's prerogative of mercy and provided for the Secretary of State, if so advised, to refer a case to the court to hear and determine an issue whether it has been raised and determined in an appeal or not. The petitioner had used this statutory procedure also but without success. Accordingly there was no room at all for any further application to the courts by way of the nobile officium or otherwise. Although direct recourse to the courts was finally barred, sec. 263 did not enact that the decision of the Secretary of State was final and conclusive. He could be asked to reconsider his decision and look at the case afresh with or without additional information. A mode of redress thus remained open to the petitioner and for this reason also he could not invoke the nobile officium. The petition was incompetent and it should be dismissed.

Senior counsel for the petitioner submitted that the nobile officium was essentially a flexible jurisdiction whose purpose was to provide a remedy "to prevent injustice or oppression where the circumstances are extraordinary or unforeseen and where no other remedy or procedure is provided by the law": Perrie, Petr. at p. 658A–B.

Here the belated discovery of the second eyewitness whose identity was not, and could not have been, known to the petitioner at the time of the trial or at the time of the appeal, was extraordinary and unforeseen. The appeal court had not pronounced upon it and it had rejected an attempt to raise the issue of the unknown witness. The petitioner's appeal under sec. 254(1) was not exhausted. In any event the finality of the decision could not properly be urged against the petitioner. The flexibility of the nobile officium could be illustrated by recent decisions: Allan, Petr. 1993 J.C. 181; James McLellan, Petr., unreported, 4th December 1990 referred to in Perrie at p. 658C–D and Beattie, Petr. 1993 S.L.T. 676. The present petition could be seen to fall within the scope of the nobile officium. The plea to the competency should be repelled and a hearing appointed to consider the merits of the petition.

It is to my mind most unfortunate that the Crown's discovery of the existence and identity of the second eyewitness did not occur until after the petitioner's appeal against conviction had been heard and refused, so exhausting his statutory right of appeal. Had the discovery been made in time it would have been possible for the issues sought to be raised in the petition to be considered in that appeal. Recourse to sec. 263 of the Act was still open to the petitioner and he has been able to avail himself fully of this, although without success.

However the sole issue for this court is whether the present petition meets the standard accepted by both sides as stated in Perrie, Petr. at p. 658A–B. In applying that test I am prepared to assume in the absence of a sufficient explanation by the Crown that the belated discovery of the second eyewitness

was extraordinary and unforeseen and I reserve my opinion as to whether injustice or oppression are properly averred in the petition, no argument having been directed to that matter. But the main obstacle to the argument for the application of the nobile officium here lies in the words "where no other remedy or procedure is provided by the law". It simply will not do, in my view, to read those words as if they covered remedy exhausted and procedure fully followed but without success. This would convert the nobile officiuminto an ultimate appeal of last resort in every case, and it is plainly not that. The fact is that secs. 254, 262 and 263 inter alia do provide remedies and procedures in law for rectification of miscarriages of justice. Furthermore the petitioner has made use of them. In my opinion an essential precondition for the application of the nobile officium is accordingly wanting, so that the petition is incompetent and must be dismissed.

LORD SUTHERLAND —The petitioner was convicted on 27th November 1985 on a number of charges and was sentenced to 20 years' imprisonment. He subsequently appealed against conviction and sentence and on 21st November 1986 his appeal against conviction was refused and the appeal against sentence was allowed to the extent of reducing the sentence to 14 years' imprisonment. Thereafter it came to the notice of the petitioner that there may be another witness whose evidence might have been valuable to his defence. A lengthy correspondence ensued with the Secretary of State and in the end on 27th October 1992 the Secretary of State intimated that he was not prepared to refer the case again to the High Court. In the prayer of this petition, as amended, the petitioner now asks this court "to receive and consider the affidavit evidence of the said William McEwan and the said David Robertson and thereafter to grant the petitioner's relief; to set aside the verdict of the trial court and quash the conviction; or to do further or otherwise in premises as to your Lordships shall seem proper".

The Lord Advocate argued that this application to the nobile officium is incompetent. Under sec. 262 of the Criminal Procedure (Scotland) Act 1975 it is provided: [his Lordship quoted the section as set out supra, ending "whatsoever", and continued:] The reference to "interlocutors" is perhaps unfortunate but it is clear from sec. 254(1)(a) that when the High Court disposes of an appeal against conviction in a manner adverse to the appellant, it does so by "affirming the verdict of the trial court". Section 263(1) provides that the Secretary of State, on the consideration of any conviction of a person, may, if he thinks fit, at any time, and whether or not an appeal against the conviction has previously been heard and determined by the High Court, refer the whole case to the High Court and the case shall be heard and determined as if it were an appeal. The Lord Advocate contended that the decision of 21st November 1986 to refuse the petitioner's appeal was final and conclusive. The only way in which the matter could be brought before the court again would be if it was referred to the court by the Secretary of State under sec. 263(1). Parliament has therefore provided the appropriate remedy for the situation where new matters emerge after an appeal has been heard and where it would be in the interests of justice that these new matters should be considered by the court. If the Secretary of State decides in the exercise of his discretion not to refer the matter to the court there is no way that the court itself can assume jurisdiction to consider the matter having regard to the provisions of sec. 262. The nobile officium cannot

provide a remedy where Parliament has already provided a remedy. As sec. 263(1) has provided that remedy, even though it may have failed as far as the petitioner is concerned, the court cannot provide an alternative remedy. Accordingly this petition is incompetent.

On behalf of the petitioner it was argued that the judgment dismissing the petitioner's appeal was not governed by sec. 262 because the issue now presented was not a matter then before the court. Accordingly, what was final and conclusive was a decision of the court on matters other than those now raised in the present petition. Counsel further argued that now that the Secretary of State has refused to refer the matter the situation has been created for the exercise of the nobile officium because the remedies provided by the statute have been fully exhausted and the court is now at liberty to consider what counsel referred to as the extraordinary and unforeseen circumstance that new evidence has emerged since the date of the appeal.

The nobile officium is a valuable power available to the court where an extraordinary and unforeseen circumstance has arisen for which no other remedy is available. This does not mean, however, that the court can arrogate to itself a jurisdiction to deal with any matter with which the court might like to deal. It is quite clear that the nobile officium may never be invoked where to do so would conflict with statutory intention, express or implied. (See Anderson v. H.M. Advocate 1974 S.L.T. 239; Perrie, Petr. 1992 S.L.T. 655; Beattie, Petr. 1993 S.L.T. 676.) As far as statutory intention is concerned it is clear that under sec. 262 the interlocutor pronounced by the High Court is final and conclusive and that means, in my view, that the decision of the High Court to affirm the verdict of the trial court is final and conclusive. I cannot accept the argument advanced by counsel for the petitioner that it is only matters which were raised in the appeal which have been conclusively dealt with. Under the provisions of the Act it is the verdict of the trial court which is affirmed and it is that decision which is final and conclusive and it matters not in my view on what grounds that verdict was affirmed. If counsel's submission was correct it would mean that there could be a succession of appeals on different grounds and such a proposition has, as far as I know, never even been advanced let alone affirmed. Had the matter ended there it might have been possible to argue that evidence could emerge after the conclusion of the appeal which it would be proper for the court to hear and that only by invoking the nobile officium could that evidence be brought before the court. That would be on the ground that there was an extraordinary and unforeseen circumstance which Parliament had not dealt with and which should be brought before the court in the interests of justice. The matter, however, does not end there because of the provisions of sec. 263(1). Parliament has foreseen the possibility of further factors emerging which, in the interests of justice, should be remitted back to the court for consideration and Parliament has provided the means by which these matters can be brought before the court. The remedy is for the convicted person to persuade the Secretary of State that it is appropriate that these matters should be referred to the court. If, therefore, this court was to allow a case to be reconsidered where the Secretary of State has declined to refer the case to the court, it would be doing something which would be contrary to the intention of Parliament. The present invocation of the nobile officium is therefore in my view an attempt to persuade the court to do something which it is expressly forbidden to do under sec. 262 unless the

case has been referred back by the Secretary of State under sec. 263(1). For that reason alone, in opinion, the present petition is incompetent.

I should add that, in any event, in my opinion there is no extraordinary or unforeseen circumstance which could properly give rise to the invocation of the nobile officium. The unforeseen and extraordinary circumstance founded upon by counsel for the petitioner was that new evidence had emerged after the appeal. That may be an extraordinary and unforeseen circumstance in relation to sec. 262 but it is most certainly not an unforeseen and extraordinary circumstance in relation to sec. 263(1) because that section is designed specifically to deal with such circumstances arising. Counsel did not attempt to argue that the refusal of the Secretary of State to refer the case to this court was an unforeseen or extraordinary circumstance, nor did he seek to point to any other such circumstance which would justify the use of the nobile officium. For this reason also in my opinion this petition is incompetent.