APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lady Dorrian Lord Bracadale	[2013] HCJAC 128 XC237/07   NOTE OF REASONS   issued by LORD CARLOWAY, the LORD JUSTICE CLERK   in the APPLICATION FOR LEAVE TO APPEAL TO THE SUPREME COURT   by   JOHN JOHNSTONE   Applicant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _____________

Applicant: A Ogg, Solicitor Advocate; McKennas Law Practice, Glenrothes

Respondent: Edwards, AD; the Crown Agent

 

4 October 2013

[1] This is an application for leave to appeal to the United Kingdom Supreme Court from a decision to refuse the applicant's appeal against sentence on 1 August 2013. That refusal was on the basis that, in terms of section 106 of the Criminal Procedure (Scotland) Act 1995, no miscarriage of justice had occurred when the High Court imposed a Hospital Order on the applicant, as advised by the psychiatrists, following upon his plea of guilty to culpable homicide in 1995.

[2] This application is an extraordinary one, since it purports to raise compatibility issues, notwithstanding the absence of any reference to a breach of any article of the Convention during what was a lengthy appeal hearing. It is not an easy task to understand precisely what the scope or range of all of the compatibility issues which the applicant seeks to raise are. The first, however, is that this court has breached Article 3 (inhumane and degrading treatment). It was not, of course, this court that sentenced the applicant and the actions of the sentencing court were not challenged as breaching that Article at any stage of the appeal proceedings. It was not suggested during the appeal hearing that the effect of this court refusing the appeal, which would have resulted in a continuation of the Hospital Order would, itself, breach any Convention right.

[3] The second issue is a challenge to the Mental Health, Public and Safety Appeals (Scotland) Act 1997. This Act is said to breach Articles 3 and 7 (no punishment without law). Again no such challenge was raised during the course of the appeal. That is not surprising, given that the appropriate forum for such a challenge would be the Court of Session.

[4] The third issue is a contention that the absence of a statutory regime for the transfer of persons from hospital to prison is a breach of Article 3. No such argument was presented to the court. If such an argument is sound then, again, the obvious forum is the Court of Session.

[5] The fourth issue is a challenge to the manner in which the court has interpreted the meaning of "miscarriage of justice" in section 106 of the 1995 Act. No argument was addressed to the court that its interpretation, which was canvassed extensively at the hearing, was a breach of Article 6. On the face of things, the scope of criminal appeals, including the extent to which the court will listen to additional evidence, is a matter for this court. It does not raise any compatibility issue with Article 6. That scope, as presently interpreted, includes the allowance of an appeal in the event of a material breach of the fair trial requirement.

[6] Since none of the purported compatibility issues were raised in the appeal to this court, this court does not understand that they can be raised subsequently in an appeal to the United Kingdom Supreme Court (Follen v Her Majesty's Advocate 2001 SC (PC) 105). The contention that it was this court that breached Article 7 is misplaced. It was the trial court that determined the sentence and, if any breach of the Convention occurred, it occurred at the time of sentencing. Furthermore, in so far as the applicant seeks to challenge the custodial regime, that is a civil matter and not for the criminal courts. This application is accordingly refused.