APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Clarke Lady Smith	[2014] HCJAC 12 XC98/12 NOTE OF REASONS issued by LORD CARLOWAY, the LORD JUSTICE CLERK in the application for LEAVE TO APPEAL TO THE SUPREME COURT OF THE UNITED KINGDOM (BILL OF ADVOCATION) by NDMC Applicant; against HER MAJESTY'S ADVOCATE Respondent: _____________

Appellant: Jackson QC, MC McKenzie; Beaumont & Co

Respondent: Wade AD; the Crown Agent

29 January 2013

[1] In October 2011 the applicant was indicted to a first diet at Edinburgh Sheriff Court on 1 November 2011, with a trial diet on 14 November, on a charge of assaulting SB on 12 May 2011 at Lulu's in George Street, by striking her on the face with a glass to her severe injury. Disclosure of Crown statements was made in June, but certain CCTV images, which were mentioned in the statements, were not made available.

[2] On 7 November 2011 the applicant presented a petition to the sheriff in terms of section 290 of the Criminal Procedure (Scotland) Act 1995, requesting the Crown to hold an identification parade. There was no basis for such a parade set out in the petition, other than a general statement that it was to test the reliability of unspecified Crown witnesses.

[3] On 8 November the sheriff refused the application. At that stage the procurator fiscal depute advised the court that there were four witnesses who, it was said, could all identify the applicant. The sheriff refused the application on the sole basis that it was not reasonable to hold a parade when the trial diet was only a week away. In that regard, there was no apparent reason why a petition could not have been presented at any time after the issue of identification had become apparent, at the time of disclosure almost six months earlier.

[4] On 21 November 2011, the trial diet was postponed on defence motion to 19 March 2012 and on 6 March it was postponed again until 25 June. However, at no point during these months was there a further application to hold a parade on the basis that there had been a change of circumstances, ie that the trial diet was no longer proximate.

[5] On 14 February 2012, the applicant presented a Bill of Advocation complaining of the decision which had been made three months earlier. In the Bill it was confirmed that at an "earlier", but unspecified, stage in the proceedings (presumably at disclosure) the petitioner's "representatives" had formed the view that identification would be a critical issue. The Bill complained that the sheriff had "erred" in refusing the application for an identification parade. The basis for this contention was simply that such a parade was "reasonable in its terms and considered necessary" by the applicant. Neither ground would have been sufficient in law to permit the court to pass the Bill. However, it was also averred that, in declining to accede to the request for a parade and in opposing the petition, the Lord Advocate had acted incompatibly with the applicant's Article 6 rights. The basis for that assertion was not further elaborated.

[6] On 2 May 2012, the Bill called before this court. The Minute of the decision to refuse to pass the Bill reads as follows:

"... counsel not insisting upon her devolution minute, the Court having heard counsel, [were] satisfied that the Sheriff was entitled in the exercise of his discretion to refuse the petition as coming too late".

That Minute accords with the recollection of the court, or at least that of the two members present today who had attended that diet. In particular, although there was reference to Article 6 in the Bill, no such argument based upon Convention rights was presented to the court. There matters appeared to rest. It appears that the trial diet was postponed again but, once more, no further petition for a parade was presented to the sheriff.

[7] On 11 December 2012, the applicant sought leave to appeal the decision to refuse to pass the Bill to the United Kingdom Supreme Court. An Opinion of Counsel was lodged stating that a devolution issue had been determined on 2 May, notwithstanding the clear terms of the Minute, which had been shown to parties, that no such issue had even been argued.

[8] The court does not consider that this is a case in which leave to appeal to the United Kingdom Supreme Court should be granted. First, no devolution issue was argued before the court, or decided by it. Indeed, as the sheriff himself points out, no such issue had been presented to him either. The only reason he refused the petition was that, as a matter of practicality, it came too late relative to the trial diet. All that this court decided was that the sheriff had been entitled, as a matter of his discretion, to reach that view. Secondly, the whole procedure challenged in the Bill of Advocation had effectively been superseded, even prior to the decision of this court, by the postponement of the trial diet. Thereafter, the applicant could have re-applied for an identification parade on the grounds of a change of circumstances, notably, as already observed, that the trial diet was no longer proximate. Such an application may have been granted, in which case no Article 6 point could have arisen. Alternatively, it could have been refused, in which case, at some point, this court could have been asked to consider the fairness of any subsequent trial. The court therefore refuses the application for leave to appeal.

DL