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Scottish High Court of Justiciary Decisons


You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Cochrane v. Her Majesty's Advocate [2006] ScotHC HCJAC_27 (07 March 2006)
URL: http://www.bailii.org/scot/cases/ScotHC/2006/HCJAC_27.html
Cite as: 2006 GWD 10-187, [2006] ScotHC HCJAC_27, 2006 SLT 349, 2006 JC 135, 2006 SCCR 213, [2006] HCJAC 27

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APPEAL COURT, HIGH COURT OF JUSTICIARY

 

Lord Justice General

Lady Cosgrove

Lord Marnoch

 

 

 

 

 

 

 

 

 

 

 

[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:

 

_______

 

 

 

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.

 


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