APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lady Paton Lord Bonomy	[2011] HCJAC 25 Appeal No: XM15/10 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in Petition of STEVEN HENVEY Petitioner; to the Nobile Officium of the High Court of Justiciary _______

Petitioner: C Mitchell; John Pryde & Co., Edinburgh

Respondent: P Ferguson, Q.C., A.D.; Crown Agent

9 March 2011

The background
[1] The petitioner was on 8 December 2009 convicted after trial of two offences under the Misuse of Drugs Act 1971: (1) of being concerned in the supplying of amphetamine, contrary to section 4(3)(b), and (2) of being concerned in the supplying of cocaine, contrary to the same subsection. There were two co-accused, one of whom was Craig Smith. On 12 January 2010 the petitioner was sentenced to twelve years' imprisonment concurrently on each charge.

[2] On 16 April 2010 he lodged a note of appeal specifying four grounds, three in respect of conviction and a fourth in respect of sentence. On 16 June leave to appeal against conviction was refused by a single judge; leave to appeal against sentence was granted. (His appeal against sentence was subsequently heard on 26 August 2010 and refused.) Meantime, on Friday 2 July agents for the petitioner lodged with the Justiciary Office two documents: the first, though headed "Amended Note of Appeal against Conviction", was not an amended note, but contained a single, wholly new, ground (criticising trial counsel for failure to call the two co-accused as witnesses for the petitioner); the second was an opinion of counsel, advancing reasons why leave to appeal should be granted by the High Court on the three grounds in respect of which leave had been refused by the single judge. A passage in parenthesis, appended to the "Amended Note of Appeal against Conviction", explained why the new ground was late. The opinion made no reference to this ground.

The correspondence
[3] By letter dated 5 July (and sent by fax on that day) the agents for the petitioner wrote to the Justiciary Office under the headings "Steven Henvey" and "Appeal Against Conviction and Sentence" as follows:

"We refer to the above matter and to the amended Note of Appeal against conviction and Opinion of Counsel lodged on Friday by hand in respect of the above.

You will note that the deadline for intimating an Appeal against the refusal of the existing grounds at the first sift was Friday and we trust this letter, Note of Appeal and Opinion have been safely received by you today. Please note that Counsel for the Appellant are seeking a Preliminary Hearing in respect of the new ground lodged.

Please also note that Counsel has requested a copy of the tape of the Judge's charge because apparently the Judge takes issue with the transcription. This being the case, we would be grateful if you could either pass the grounds through the sift and allow us to listen to the tapes of the Judge's charge or extend the time limits in this case to allow us to listen to the tapes before putting it through to the second sift process.

We trust you find this to be in order and look forward to hearing from you."

At the hearing before us it was explained that the reference in the second paragraph to a "Preliminary Hearing" was intended to be a reference to a "Procedural Hearing".

[4] On the same day an official in the Justiciary Office responded in the following terms:

"I refer to the above case and to Amended grounds of appeal and opinion by Counsel received on 2^nd July 2010.

It is not clear from Counsel's opinion or your fax letter of today if it is your intention to appeal to the second sift or to apply for an extension of time to appeal to the second sift under section 107(4A) of the Criminal Procedure (Scotland) Act 1995.

I would be obliged if you could please clarify your position in writing as soon as possible in order for this matter to proceed."

[5] On 6 July agents for the petitioner replied as follows:

"I refer to the above and thank you for your fax today.

I have reviewed the letter sent to you along with the supplementary Opinion of Counsel and the supplementary Ground of Appeal.

I note that the supplementary Opinion and supplementary Ground of Appeal were lodged within the proper time limits on Friday by Counsel's Clerk and this was done in order to apply for an Appeal to the second sift - I note that [Counsel] agreed with your colleague that a letter from us would be forthcoming as she had instructed her Clerk to lodge the Appeal to the second sift due to the time limit.

I do note that the letter from us which was faxed on the 5^th July 2010 is not sufficiently clear as you have indicated in your fax of 5^th July 2010.

I wish to clarify the position as follows.

First of all I confirm that we do seek on behalf of Mr Henvey an Appeal to the second sift in respect of the original 3 ground (sic). In support of that we do wish their Lordships to refer to the supplementary Opinion provided by Senior and Junior Counsel and lodged on 2^nd July 2010.

We note that also lodged on 2^nd July 2010 was a supplementary Ground of Appeal and Counsel have explained why this has been lodged at this stage in time.

This is due to the necessity of changing agents, given the nature of the Ground of Appeal.

We would therefore request that this supplementary Ground of Appeal is also considered by their Lordships at the second sift stage.

I trust this is an accurate reflection of the position so far and clearly indicates our requests on behalf of Mr Henvey.

I thank you for your assistance."

Subsequent procedure
[6] Thereafter the papers, including the above correspondence, were placed before three judges of the High Court who, on 14 July, refused the application to them. They gave the following reasons:

"We agree that this appeal is unarguable as regards conviction. We agree with the reasons given by Lord Matthews as to grounds 1 & 3. As regards ground 2, it is not arguable because whatever may be said regarding the propriety of the admission of the statement, no miscarriage of justice can have resulted from it. As regards the fresh grounds now proffered we regard it as incompetent."

[7] The High Court subsequently issued a Note explaining why it had held the "fresh grounds" to be incompetent. That explanation was that it was not competent for the High Court, acting under section 107(5) of the Criminal Procedure (Scotland) Act 1995, to entertain the "fresh grounds" in circumstances where the note of appeal had not been amended to include it.

The petitioner's submissions

[8] The petitioner has now presented this petition to the nobile officium of the High Court. It was acknowledged by Miss Mitchell, on behalf of the petitioner, that the determination of 14 July was a final interlocutor. It was also recognised that there was no basis for recalling or vacating it in whole: the decision in respect of the three grounds of appeal against conviction in the note of appeal could not be disturbed. However, the nobile officium was invoked to set aside that interlocutor in so far as it disposed, as incompetent, of the fresh ground. The object of the petition was to obtain an oral hearing at which the fresh ground might, under section 110(4) of the 1995 Act and on cause shown, be received and thereafter, if necessary, remitted for a decision under section 107(1) of the Act as to whether leave to appeal should be granted on that ground. It was clear from the letter of 5 July that counsel had envisaged that there would be a procedural hearing to deal with receipt of the fresh ground, with the prospect of leave to appeal on it being granted then (or after further procedure). It was wrong for the judges simply to refuse that ground as incompetent. To take such a course was unfair to the petitioner. Although the Practice Note (No.2 of 2010) - which laid down the appropriate practice when an additional ground or grounds of appeal were sought to be introduced - had been issued prior to the passing of the correspondence, it remained unclear what procedure should be adopted where this was sought to be done either before leave to appeal had been considered at all (under section 107(1)) or between a decision under that subsection and consideration by the High Court under section 107(5). If it was necessary at this stage to demonstrate that the fresh ground was ex facie arguable, it did meet that test. A copy of an affidavit, sworn on 19 August 2010 by the co-accused Smith, was tendered at the bar. It was recognised that the scope of the nobile officium was limited, but what had occurred could properly be characterised as a "procedural vice", as discussed in Beck, Petitioner 2010 SCCR 222. The present basis for invoking the nobile officium was more favourable than that in Akram v HM Advocate 2010 SCCR 30, where the "second sift" decision had been set aside.

The Crown's submissions
[9] The Advocate depute submitted that this application to the nobile officium was incompetent. That jurisdiction was available only in extraordinary or unforeseen circumstances. The "second sift" judges had clearly been correct to refuse as incompetent the application made to them to consider the "supplementary ground of appeal", which they had expressly been asked to consider. In the absence of a prior amendment of the grounds of appeal, such an application could not be entertained. There had been no "procedural vice" as envisaged in Beck, Petitioner. While the "second sift judges" would have been entitled to defer their decision under section 107(5) pending the determination as to whether the further ground, tendered late, should be admitted for consideration, they were not obliged to do so - particularly in face of the agents' request in their letter of 6 July. It was clear that, as matters stood, at the time of the "second sift" decision, there was no prima facie substance in the fresh ground. There was a bare assertion in the "amended ground of appeal" that trial counsel had erred in not calling (both) co-accused as witnesses, that they could have given evidence which would have been of material assistance in the petitioner's defence and that counsel's failure to call them proceeded on a misapprehension as to what was open to him. If a defective representation ground was to be advanced, it required to be properly specified and objectively supported (Grant v HM Advocate 2006 SCCR 365, especially per LJC Gill at para [25]). Here no such basis had been laid. Any application for leave to appeal on this ground would have been bound to fail. Even on the basis of the affidavit now tendered from one of the co-accused, the same result would be bound to occur. The High Court had pronounced a final interlocutor on the petitioner's application for leave to appeal against conviction. That could not be disturbed. Reference was made to Harris v HM Advocate 2010 SCCR 50.

Discussion and disposal
[10] The nobile officium of the High Court is a valuable, but limited, jurisdiction. Its scope has most recently been reviewed by a court of five judges in Beck, Petitioner. In the present case the agents for the petitioner expressly requested that the "supplementary ground of appeal" be considered at the "second sift" stage. The judges, having been invited to consider all the grounds under section 107(5), were entitled to do so. It may be that, in light of the correspondence as a whole, they could, in the exercise of a discretion, have deferred consideration of the whole section 107(5) exercise until the appellant had had an opportunity of taking effective steps to seek to amend his grounds of appeal; but they were not obliged to do so. There was no procedural vice of the kind referred to in Beck, Petitioner. In these circumstances, this application must be refused.

[11] We should, however, add this. The nobile officium is a discretionary jurisdiction designed, in circumstances where it has application, to prevent injustice or oppression. It is thus incumbent on any petitioner who seeks to invoke it to demonstrate that, unless a remedy is granted, he will suffer injustice or at least is at material risk of doing so. In circumstances such as the present, that means that it must at least be demonstrated that the envisaged supplementary ground of appeal is prima facie of substance. We are far from satisfied that there has been such demonstration in this case. Although the proposed supplementary ground, first tendered over seven months after conviction, appears to have been designed to be one of defective representation, what was advanced fell far short of what, according to Grant v HM Advocate, requires to be specified and objectively supported. As at the time when the supplementary ground was first tendered, there does not appear to have been in existence any affidavit sworn by Smith, supportive of the petitioner's defence - albeit there may have been other indications as to what he might say if called as a witness. None of the other material necessary to support a defective representation ground - an affidavit from the petitioner relating to his understanding of the matter and his instructions to counsel, specification of how any procedural misapprehension by trial counsel resulted in the petitioner's defence not being properly put before the court, etc. - was available. A defective representation appeal should not be granted leave if all that is alleged is that the defence would have had better prospects of success if the defending counsel had pursued a certain line of evidence (Ditta v HM Advocate 2002 SCCR 891, at para [17]; Grant v HM Advocate, per LJC Gill at para [22]). Any attempt to introduce this ground would have failed. Even at the stage of the hearing of this petition, nothing - other than a copy of Smith's affidavit - was presented in support of this ground. In these circumstances it has not been demonstrated that, as a result of the decision of 14 July, the petitioner has suffered an injustice.