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Scottish High Court of Justiciary Decisons |
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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 |
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Lord Justice GeneralLady Cosgrove Lord Marnoch |
[2006] HCJAC 27Appeal No: MISC. 221/05OPINION 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: _______ |
Respondent: R. Clancy, A.D.; Crown Agent
[1] The
present petitioner was, in October and November 2000, tried in the
"(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
[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
[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
"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
[5] Mr.
Brown for the petitioner described the nature of this application as being for
"correction" of the interlocutor of
[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
Discussion
"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
[8] In
"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 ... ".
"(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
"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
"[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".
"an inherent power by the common law of
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.
[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