|
APPEAL COURT, HIGH COURT OF JUSTICIARY |
|
|
Lord Justice General Lord Marnoch Lord Macfadyen
|
Appeal No: Misc. 226/04 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in PETITION to the nobile officium of the High Court of Justiciary of WILLIAM FREDERICK IAIN BEGGS Petitioner: _______ |
Appellant: Scott, Q.C., Hood, Mitchell; McClure Collins
Respondent:
Bell, Q.C., A.D.; Crown Agent8 December 2004
[1] On 12 October 2001 after trial in the High Court at Edinburgh the petitioner was convicted of a charge of murder and was sentenced to life imprisonment, with a punishment part set at 20 years. On 2 July 2002 his agents lodged a note of appeal against conviction and sentence. By letter dated 6 January 2003 his agents were notified that he had been granted leave to appeal "but only in the restricted terms narrated below". The letter referred below to a note of Lord Bonomy, as the "first sift judge", which stated that in respect of certain grounds of appeal, relating to both conviction and sentence, leave had been refused.
[2] By letter dated 17 January 2003 the petitioner's agents applied for a "review" of the refusal of leave, ostensibly by the second sift under section 107(4) of the Criminal Procedure (Scotland) Act 1995. For this purpose they sought an extension of time in order to lodge submissions and supporting documentation. This extension was granted, and in due course on 17 March 2003 the agents submitted four opinions of counsel along with certain observations on the grounds in respect which there had been "a decision to refuse leave to appeal". By letter dated 25 Aug 2003 the petitioner's agents were informed that the appeal against the refusal to grant leave to appeal had been refused by the court. The second sift judges stated that this refusal was for the reasons given by Lord Bonomy "and notwithstanding the further representations made on behalf of the appellant, we consider that the grounds on which leave was refused are unstateable".
[3] Thereafter on 22 June 2004 the petitioner lodged the present petition, in which he maintains that, in the absence of adequate reasons for their decision, he cannot know why the second sift judges rejected his submission that various matters should be argued at the hearing of the appeal. According to the terms of the prayer, as amended, the petitioner invites the court
"to quash the decision on the second sift for want of adequate reasons and remit the matter for reconsideration and the giving of such reasons as properly fulfil the requirements of the convention and the common law or to do further or otherwise in the premises as to your Lordships shall seem proper".
[4] At a hearing of the petition it became clear during the submissions of Ms Scott, who appeared for the petitioner, that there was a question as to the competency of the application which had been made in reliance on section107(4). This was a question, we might add, which clearly had not been anticipated by either party in preparing for the hearing. The problem arises from the terms of section 107. Its full terms are as follows:
"(1) The decision whether to grant leave to appeal for the purposes of section 106 (1) of this Act shall be made by a judge of the High Court who shall-
(a) if he considers that the documents mentioned in subsection (2) below
disclose arguable grounds of appeal, grant leave to appeal and make such comments in writing has he considers appropriate; and
(b) in any other case-
(i) refuse leave to appeal and give reasons in writing for the
refusal; and
(ii) where the appellant is on bail and the sentence imposed on his
conviction is one of imprisonment, grant a warrant to apprehend and imprison him.
(2) The documents referred to in subsection (1) above are-
(a) the note of appeal lodged under section 110 (1) (a) of this Act;
(b) in the case of an appeal against conviction or sentence in a Sheriff
Court, the certified copy or, as the case may be, the record of the proceedings at the trial;
(c) where the judge who presided at the trial furnishes a report under
section 113 of this Act, that report; and
(d) where, by virtue of section 94 (1) of this Act, a transcript of the charge
to the jury of the judge who presided at the trial is delivered to the Clerk of Justiciary, that transcript.
(3) A warrant granted under subsection (1)(b)(ii) above shall not take effect until the expiry of the period of 14 days mentioned in subsection (4) below (and if that period is extended under subsection (4A) below before the period being extended expires, until the expiry of the period as so extended) without an application to the High Court for leave to appeal having been lodged by the appellant under that subsection.
(4) Where leave to appeal is refused under subsection (1) above the appellant may, within 14 days of intimation under subsection (10) below, apply to the High Court for leave to appeal.
(4A) The High Court may, on cause shown, extend the period of 14 days mentioned in subsection (4) above, or that period as extended under this subsection, whether or not the period to be extended has expired (and if that period of 14 days has expired, whether or not it expired before section 62 of the Criminal Justice (Scotland) Act 2003 (asp 7) came into force).
(5) In deciding an application under subsection (4) above the High Court shall-
(a) if, after considering the documents mentioned in subsection (2) above
and the reasons for the refusal, the court is of the opinion that there are arguable grounds of appeal, grant leave to appeal and make such comments in writing as the court considers appropriate; and
(b) in any other case-
(i) refuse leave to appeal and give reasons in writing for the
refusal; and
(ii) where the appellant is on bail and the sentence imposed on his
conviction is one of imprisonment, grant a warrant to apprehend and imprison him.
(6) Consideration whether to grant leave to appeal under subsection (1) or (5) above shall take place in chambers without the parties being present.
(7) Comments in writing made under subsection (1)(a) or (5)(a) above may, without prejudice to the generality of that provision, specify the arguable grounds of appeal (whether or not they are contained in the note of appeal) on the basis of which leave to appeal is granted.
(8) Where the arguable grounds of appeal are specified by virtue of subsection (7) above it shall not, except by leave of the High Court on cause shown, be competent for the appellant was found any aspect of his appeal on any ground of appeal contained in the note of appeal but not so specified.
(9) Any application by the appellant for the leave of the High Court under subsection (8) above-
(a) shall be made not less than seven days before the date fixed for the
hearing of the appeal; and
(b) shall, not less than seven days before that date, be intimated by the
appellant to the Crown Agent.
(10) The Clerk of Justiciary shall forthwith intimate-
(a) a decision under subsection (1) or (5) above; and
(b) in the case of a refusal of leave to appeal, the reasons for the decision,
to the appellant or his solicitor and to the Crown Agent".
[5] It is evident in the present case that the agents for the petitioner treated each of the grounds of appeal as if it were the subject of a separate application for leave, and hence sought leave to appeal to the second sift judges in respect of the grounds of appeal for which Lord Bonomy had refused leave.
[6] However, section 107 (1) shows that the question for the first sift judge is whether he considers that there are arguable grounds of appeal. If so, he is to grant leave to appeal. Such comments in writing as he considers appropriate may, in accordance with subsection (7), specify, as the basis on which leave to appeal is granted, the grounds of appeal which he considers to be arguable, whether or not they are contained in the note of appeal. If the arguable grounds of appeal are so specified, in terms of subsection (8) the appellant cannot found any aspect of his appeal on any ground of appeal which is contained in the note of appeal but has not been so specified, unless the court grants leave on cause shown. (Where arguable grounds have not been specified, the limitation expressed in subsection (8) does not apply). If the appellant seeks to found any aspect of his appeal on a ground which is not stated in the note of appeal he requires to have the leave of Court on cause shown, under a different provision of the 1995 Act (section 110(4)).
[7] The terms in which section 107 are expressed do not, in our view, treat grounds which have not been specified by the first sift judge when granting leave to appeal as grounds in respect of which leave to appeal has been refused. Instead they may not be founded on unless the court grants leave on cause shown. It may be noted that it is in regard to the refusal of leave to appeal that subsection (1) requires the first sift judge to give reasons in writing. Subsection (7) does not require the judge to give reasons in writing for not specifying a ground or grounds as arguable, although in practice this is done.
[8] We should add that the same remarks apply to an application to the court for leave to appeal under subsection (4) where leave to appeal has been refused by the first sift judge. In this case also if the second sift judges grant leave to appeal and specify the arguable grounds of appeal, those grounds of appeal define the scope of the appeal unless the court on cause shown grants leave to the appellant to found on some other ground or grounds contained in the note of appeal but not so specified.
[9] In these circumstances it is clear that an appellant who obtains leave to appeal at the first or second sift but is dissatisfied with the extent to which he may rely on his grounds of appeal may apply to the court for leave in accordance with subsection (8). Such an application, unlike applications under subsections (1) and (5), is not considered in chambers but in open court. If an appellant has obtained leave to appeal at the first sift, where the first sift judge has specified only some of his grounds of appeal as arguable, it is not competent for him to apply for leave to appeal under subsection (4).
[10] For these reasons we consider that the petitioner's application under subsection (4) of section 107 was not competent. It also follows that the decision of the second sift judges which was intimated in the letter dated 25 August 2003 was not competent, as not being within the powers conferred by subsection (5) of section 107 of the 1995 Act. This has, of course, nothing to do with the reasons advanced in the petition for challenging the decision.
[11] In the whole circumstances, however, we will grant the prayer of the petition to the extent only of setting aside that decision.