[1] On 19 November 1977, the petitioner, along with three other persons, was convicted at Dingwall Sheriff Court of 12 contraventions of section 38(1) of the New Roads and Street Works Act 1991 for refusing to pay the toll for the crossing of the bridge between the mainland of Scotland and the island of Skye. Thereafter, the petitioner, along with the three other persons, appealed by way of stated case against their convictions on the ground that the toll collectors lacked lawful authority. On 16 December 1999, the High Court of Justiciary refused these appeals. The leading judgment issued by the court was delivered by Lord Sutherland. Lords Marnoch and Cowie agreed with his Opinion (Alexander Smith and Others v. P.F. Dingwall 16 December 1999, unreported). On 24 October 2001, the petitioner lodged a petition to the nobile officium, in which he craved the court to set aside the decision of the court, dated 16 December 1999, to which we have just referred. On 21 December 2001, this court dismissed that petition as incompetent. The Opinion of the Court was delivered by the Lord Justice General. In that Opinion, he recorded that in the course of the hearing of the petition a number of criticisms of the decision of the court dated 16 December 1999 had been advanced. In particular, these criticisms were directed towards the Opinion delivered by Lord Sutherland. In the Opinion of the Lord Justice General of 21 December 2001, it is narrated that the petitioner had accepted that a decision by the criminal appeal court on the merits of a case was not susceptible to review by the exercise of the nobile officium, a view which he described as undoubtedly correct. He then said:

[2] On 29 March 2002, the petitioner lodged the present petition, which is also a petition to the nobile officium, in which he seeks a number of remedies. Suffice it to say that, in the present petition, the petitioner invites the court to

In effect, the petitioner in this petition invites the court to set aside the decision of the court dated 21 December 2001.

[3] When this petition came before us on 18 November 2004, the petitioner appeared on his own behalf. He pointed out that the previous petition to the nobile officium, disposed of on 21 December 2001, had been dismissed on the ground that it was incompetent. There had been no proper consideration of its merits, as opposed to its competency. While it was accepted that there had been an appeal by way of stated case under the Criminal Procedure (Scotland) Act 1995 against the convictions of the petitioner and others, which had been refused, that decision had been unsatisfactory, in respect that Lord Sutherland had not dealt with all of the submissions made to the court. In particular, he had failed to deal with the submission that the assignation, referred to in the course of his Opinion, was not a valid document, never having been dated or signed. The decision of 21 December 2001 was to the effect that no further appeal was available. The purpose of the present petition was to attack that latter decision. It was submitted that the court which made the decision, dated 21 December 2001, had not provided the petitioner with a fair hearing. It had not been obvious who had challenged the competency of that petition. The fact of the matter was that the merits of the earlier petition to the nobile officium had been arguable and they ought to have been considered and a decision made upon them. It could be shown that Lord Sutherland had not disposed of the submission made to him that the assignation document lacked subscription. Although it had not been clear that any such argument had been addressed to that court initially at the hearing of the earlier petition to the nobile officium, the Lord Justice General had stated that, if that matter had been argued, there could be a hearing on the merits of the earlier petition to the nobile officium. Later in the course of that hearing it had been established that that matter had been argued, yet that petition had been dismissed. There was no doubt that Lord Sutherland had not dealt with the argument based on the lack of subscription. Any judgment following a fair hearing required to deal with the main arguments which had been advanced. At this stage in the submissions to us, the petitioner produced a copy of the assignation statement, which showed a lack of subscription. He also referred to an Act of the Parliament of Scotland 1525 Acts II, 295/1, entitled: "That na faith be gevin to evidentis selit without subscripcioun be the principale or notare". He also relied upon the Requirements of Writing (Scotland) Act 1995. The provisions of that Act were applicable at the time when the purported assignation statement was created.

[4] It was the petitioner's contention that the Opinion of Lord Sutherland simply did not deal with one of the crucial arguments which had been advanced to him by the petitioner. There was thus a vacuum in relation to that matter. The court which made the decision dated 21 December 2001 had failed to recognise that shortcoming.

[5] It was submitted that the present petition was an attempt to review, on its merits, the decision of the court presided over by the Lord Justice General, dated 21 December 2001. That court had decided that Lord Sutherland had taken into account, amongst other things, the full argument which had been put before it, including the complaint that the assignation statement was undated and unsigned. Had Lord Sutherland not dealt with that matter, the position might have been different, but the court, on 21 December 2001 had held that he had done so. It was not a proper use of an application to the nobile officium to attempt to have that decision reviewed. In that connection reference was made to Perrie, Petitioner 1991 S.C.C.R. 475, at pages 480 to 481. A petition to the nobile officium could not be used as a substitute for an appeal. In this case, there had already been an appeal and a petition to the nobile officium. The purpose of an application to the nobile officium was to prevent injustice or oppression where the circumstances were extraordinary or unforeseen and where no other remedy or procedure was provided by law. The power could not be exercised in order to conduct a review on the merits of a decision taken by the court. What was being attempted in the present case was a review of the court's decision, dated 21 December 2001. That rendered the present petition an incompetent procedure.

[6] The nature of the nobile officium was the subject of observations by Lord Justice General Hope, as he then was, in Perrie, Petitioner. At pages 480 to 481 of the Report he said this:

[7] It is quite clear to us that, in the earlier petition to the nobile officium, which was the subject of decision on 21 December 2001, the court concluded that Lord Sutherland had taken into account, amongst other things, the full argument which had been put before him, including the complaint that the assignation statement was undated and unsigned. For that reason, the court reached the conclusion that the complaint made to it amounted to a complaint in regard to the reasoning adopted by Lord Sutherland in his opinion. In other words, they concluded that the earlier petition to the nobile officium constituted an attack on the merits of the decision of Lord Sutherland. It was for that reason that they concluded that there was no proper basis for that application to the nobile officium.

[8] It is quite plain from the contents of the present petition and also from the submissions made by the petitioner that the purpose of this application is to attempt a review of the reasoning of the decision of 21 December 2001. We have no hesitation in concluding that such an attempt is an illegitimate reason for invoking the nobile officium. If any other view were to be taken, there could be a never-ending series of petitions to the nobile officium presented to different courts, in which a review might be conducted in a later petition of a decision made in response to an earlier petition, which would be an absurdity. In these circumstances we conclude that the present petition to the nobile officium has no competent or legitimate basis. We shall dismiss it as incompetent.