GRAHAM GORDON TO BE NOBILE OFFICIUM
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 51
P481/15
Lady Dorrian
Lord Bracadale
Lord Malcolm
OPINION OF THE COURT
delivered by LADY DORRIAN
in the petition of
GRAHAM GORDON
Petitioner;
to the nobile officium
Act: Party
4 June 2015
[1] This is an application to the nobile officium which the petitioner has been allowed to present to the court without a signature of either counsel or a solicitor advocate, under the operation of Rule of Court 4.2(5). The matter comes before us by order on a question whether we should grant first orders.
[2] The petitioner was convicted of rape at the High Court in Stonehaven in 2002 and sentenced to five years imprisonment; he has since lodged a series of unsuccessful attempts to overturn his rape conviction. In 2005 the petitioner’s application for review of his conviction was accepted by the Scottish Criminal Cases Review Commission (SCCRC), and in 2007 the SCCRC referred the case to the High Court to look into the possibility that a miscarriage of justice might have occurred as a result of the "cumulative effect of Grampian Police enquiry errors and other irregularities". On 6 May 2010 the appeal was refused (see 2009 SCCR 570 and 2010 SCCR 589) and on 28 May 2010 the petitioner's motion for leave to appeal to the Supreme Court was also refused.
[3] The petitioner’s case was accepted by the SCCRC for a second review, on a sole ground relating to whether there was evidence that a pair of trousers seized by the police were not those worn by the complainer at the material time. Following a full review, the SCCRC decided not to refer the case. In September 2012 the petitioner’s application for judicial review of that decision was refused by Lord Pentland (see [2013] CSOH 13).
[4] In the present application to the nobile officium the petitioner raises his concerns about the scope of the earlier referral in 2007, and the SCCRC’s handling of that referral. He seeks a ruling on whether the SCCRC acted in a way incompatible with the petitioner’s human rights, and in particular, seeks a ruling that in 2007 the SCCRC failed in its obligation to conduct an independent investigation into his case.
[5] The petition is somewhat difficult to follow, containing a great deal of material which appears to be irrelevant to the issues raised in the prayer of the petition, and the ultimate remedy which is sought by the petitioner is not wholly clear. The complaint about the decision made in 2007 appears to relate to the apparent conclusion by the SCCRC that additional allegations relating to “several oppressive acts and omissions by the police and Crown” were irrelevant. The petitioner also complains that the decision of the SCCRC cannot be viewed as independent, since one of its caseworkers was at the time on secondment from Crown Office and Procurator Fiscal Service, where he was a procurator fiscal depute. The petitioner asks the court to rule whether the decision of the SCCRC in March 2007 was unlawful and voidable. Associated with the craves already mentioned, is one which is directed at overturning the decision of the appeal court following that reference, reported at 2010 SCCR 589.
[6] It will readily be apparent that a question of competency arises, in several respects. In the first place, decisions of the High Court of Justiciary are not reviewable in the Court of Session, nor would a decision such as that made in 2010 be susceptible to review in this way under the nobile officium of the High Court of Justiciary (2 Hume 504; Criminal Procedure (Scotland) Act 1995 section 124(2); Beattie Petr 1993 SLT 676; Perrie, Ptr 1991 SCCR 475; Beck, Ptr & Ors 2010 SCCR 222).
[7] The nobile officium is described in Maclaren, Court of Session Practice, page 100 as:
“..the equitable power vested in the Court of Session to make provision for cases arising out of statutes, but for which no provision has been made in said statutes; or for unexpected, or exceptional, happenings, whether arising from statute or otherwise.”
According to Erskine (Institutes, I,3,22):
“It will never be exercised, except in cases of necessity, or very strong expediency, and where the ordinary procedure would provide no remedy.”
[8] The authorities make clear that it is an extraordinary jurisdiction to be employed only in exceptional circumstances and for very compelling reasons (Horne’s Trs 1952 SC 70). It requires to be exercised with extreme caution and restraint (Gibsons Trs 1933 SC 190 at p 211). As with the equivalent remedy available to the High Court of Justiciary, it is designed to provide a remedy in the event of unusual, unforeseen or unexpected circumstances. (A modern example may be seen in Manson v British Gas Corporation 1982 SLT 77.) It is not designed for review of administrative decisions of bodies such as the SCCRC, either on the merits of the decision or on grounds of the kind which appear to be advanced here.
[9] The petitioner avers that this petition is the only remedy available to him. It is surprising that he makes such an averment, since he has previously applied a second time to the SCCRC and presented a petition for judicial review. A petition to the nobile officium is only available where the law provides no other remedy. That does not appear to be the case here, as was noted by the Lord Ordinary when he granted permission for this petition to be presented. In the course of the hearing before us, the petitioner maintained that judicial review was not available to him as an effective remedy, since the court would have no power to decide the case, but would have to refer it to the Commission. He referred to Tsfayo v United Kindom [2009] EHRR 47 where judicial review was deemed to be an inadequate remedy where the body which determined an appeal in respect of backdated council tax and housing benefit was not independent of the council which would have to pay the benefit in the event that the appeal succeeded. The relevance of this decision is somewhat obscure: in any reference, the SCCRC is not the body which determines the substantive issue, it is the High Court of Justiciary which does so. Furthermore, even in a petition to the nobile officium it would not be open to the court to remake the decision, and in any event, that is not a matter raised in the petition. The appellant indicated to the court that his solicitor had suggested that the matters raised in the petition might be included in his outstanding appeal to the Supreme Court in relation to the refusal to make a referral in 2012. However, the petitioner declined to avail himself of that opportunity. The availability of other remedies is thus a further ground upon which it may be stated that the petition is incompetent.
[10] We shall therefore refuse the motion for first orders, and dismiss the petition on the basis that it is not competent.
[11] The problems are not confined to issues of competency. The petition is not easy to follow, and it contains numerous inaccuracies in respect of prior proceedings. For example, it is incorrect to say, as is averred in paragraph 4, that “Such was the weight attached to the SCCRC ‘independent findings’, the court ruled that there was no need to hear the expert opinion of Professor David Barclay.” In fact there was no ground of appeal before the court relating to Professor Barclay and the court refused to allow one to be added at such a very late stage, noting that it did not in any event appear that there might be an arguable ground of appeal in that regard. The petition complains about the role of someone who was seconded to SCCRC from COPFS, as a case officer. The precise role and actions of this individual, and their bearing upon either the petitioner’s original case or the referral in 2007 are not specified. In addition, the petition includes numerous averments and references the relevance of which to the petition are not immediately apparent. As we have noted above, the remedy which the petitioner seeks is not wholly clear. Even had the petition been competent, the relevancy of its contents is highly doubtful, and there is a concerning lack of clear specification. Where an applicant is seeking to invoke the jurisdiction of the nobile officium, the remedy being sought and the basis for it should be clear on the face of the document.
[12] In these circumstances it is appropriate that we also make some observations in relation to the operation of Rule of Court 4.2(5).
Rule of Court 4.2(5) provides as follows:
“Where a party litigant is unable to obtain the signature of counsel or other person having a right of audience or an agent on a document as required by paragraph (1), (2), or (3) he may request the Deputy Principal Clerk to place the document before the Lord Ordinary for leave to proceed without such signature; and the decision of the Lord Ordinary shall be final and not subject to review”
It is implicit in the terms of the Rule that before someone may be given permission it must be shown that they have been “unable” to obtain a signature from the appropriate practitioner. That necessarily means that efforts have been made to obtain such a signature, but they have been unsuccessful. What may be required to satisfy the court that this has been done may vary according to the case. It is unlikely that one request and refusal will satisfy the requirements of “unable”, but, be that as it may, before granting permission the Lord Ordinary must be satisfied that the individual in question has been unable to obtain the requisite signature. In the present case it is not asserted in either the petition or the letter submitting it that the applicant has been unable to obtain the requisite signature. There was no material upon which the court could conclude that this underlying prerequisite had been met.
[13] Given that the petition or other document to which an application under the rule relates does not come with the imprimatur of counsel or a solicitor advocate, or where appropriate, an agent, the Lord Ordinary should also take care to scrutinise the terms of the writ. Permission should not be given where the document is on the face of it, incompetent, as this one clearly was. The Lord Ordinary himself noted the availability of an alternative remedy. Permission should not be given if the application appears ex facie to constitute an abuse of process. In a case in which the averments are plainly irrelevant, it may be difficult to conclude that there is a prima facie case, but permission should not be given unless such a case is disclosed.