Appellant: Scott, Q.C., Mitchell; Mann & Co., Glasgow

Respondent: Shand, Q.C., A.D.; Crown Agent

15 April 2011

The procedural history

[1] On 21 January 2005 the appellant was after trial convicted of murder. On 11 February 2005 he was sentenced to detention without limit of time, a punishment part of twenty years being specified by the trial judge. On 2 August 2005 he lodged a note of appeal in which he sought to appeal against both conviction and sentence. The note of appeal set forth twelve grounds directed against conviction and one directed against sentence. Leave to appeal was granted in respect of certain of the grounds against conviction; it was also granted against sentence. On 7 December 2007 the appellant lodged a proposed additional ground of appeal (no.1A of the appeal process). He also lodged a related devolution minute. On 18 December 2007 at a procedural hearing his counsel intimated that he was no longer insisting upon that devolution minute. Enquiries were, however, ongoing in relation to the proposed additional ground of appeal. The court granted leave for the devolution minute to be withdrawn. It also allowed the proposed additional ground of appeal to be received and continued consideration of it until the full hearing which had already been assigned for 5 February 2008. At a further procedural hearing on 25 January 2008 counsel for the appellant intimated that the proposed additional ground was still "work in progress". The court again continued consideration of it until 5 February. At the opening of the hearing on 5 February counsel for the appellant intimated that the proposed additional ground remained "work in progress" and invited the court to postpone consideration of it until parties had been heard on the existing grounds against conviction. The court then proceeded to hear argument on these grounds. That hearing ran for thirteen court days. In the course of it the appellant was, on 8 February 2008, allowed to lodge and argue a further additional ground of appeal (no.31 of the appeal process). On 13 February 2008 there was further discussion in relation to the proposed additional ground (no.1A). On 22 February the submissions of parties on the existing grounds of appeal were concluded. There was further discussion of the proposed additional ground of appeal, the court in the result continuing consideration to a date to be fixed of the appellant's motion to allow the additional ground to be argued, with a direction that any further proposed evidence in support of it should be lodged within four weeks. The court made avizandum on the existing grounds against conviction. On 16 May the court was advised that the proposed additional ground of appeal was not to be insisted upon. On that date the court "Refused the appeal against conviction and Decerned". It continued the appeal against sentence to a date to be afterwards fixed. The appeal against sentence was heard on 28 April 2010. On 2 February 2011 that appeal was refused.

[2] Meantime on 27 January 2011 the appellant had lodged with the Justiciary Office a document entitled "Application For Leave To Lodge Additional Ground Of Appeal In Terms Of Section 110(4) Of The Criminal Procedure (Scotland) Act 1995". That proposed additional ground was a ground of appeal against conviction: it was founded on the decision of The Grand Chamber of the European Court of Justice in Salduz v Turkey (2009) 49 EHRR 14 and the decision of the Supreme Court of the United Kingdom in Cadder v HM Advocate [2010] UKSC 43. By letter dated 1 February 2011 (received on 2 February) agents for the appellant wrote, under a heading referring to his name, to the Deputy Principal Clerk of Justiciary as follows:

"We refer to the above matter. We have been informed that the advising of the sentence appeal will take place on Wednesday 2 February 2011.

Miss Scott QC has asked us to ensure that you are aware that she would like the application in terms of s 110(4) which was lodged on 27 January 2011 to call as soon as possible.

...

We look forward to hearing from you."

When the case called in court for the advising on 2 February, no application was made to the court to postpone that advising until the Application lodged on 27 January had been heard and disposed of. We were told that, prior to the advising, there had been some discussion with officials of the court in which those representing the appellant were told that the court would not entertain consideration of the Application at the time of the advising.

[3] At the request of the applicant that Application has now been brought before the court for a hearing.

The statutory provisions

[4] Part VIII of the Criminal Procedure (Scotland) Act 1995 is concerned with appeals from solemn procedure. It comprises sections 103 to 132 inclusive. Section 103 (appeal sittings) provides:

"(1) ...

(2) Subject to subsection (3) below, for the purpose of hearing and determining any appeal or other proceeding under this Part of this Act three of the Lords Commissioner of Justiciary shall be a quorum of the High Court. ...

(3) For the purpose of hearing and determining any appeal under section 106(1)(b) to (e) of this Act, or any proceeding connected therewith, two of the Lords Commissioner of Justiciary shall be a quorum of the High Court. ...

...".

Section 106 (right of appeal) provides:

"(1) Any person convicted on indictment may, with leave granted in accordance with section 107 of this Act, appeal in accordance with this Part of this Act, to the High Court -

(a) against conviction;

(b) subject to subsection (2) below, against the sentence passed on such conviction;

(ba) against the making of an order for lifelong restriction;

(bb) against any decision not to exercise the power conferred by section 205A(3) or 205B(3) of this Act;

(c) against his absolute discharge or admonition;

(d) against any probation order, drug treatment and testing order or any community service order;

(da) against any decision to remit under section 49(1)(a) of this Act;

(db) against any reference proposed under section 10(1) of the Protection of Children (Scotland) Act 2003 (asp 5) in respect of the conviction;

(dc) against such reference and, subject to subsection (2) below, such sentence, disposal or order or any order deferring sentence;

(e) against any order deferring sentence; or

(f) against

(i) both such conviction and, subject to subsection (2) below, such sentence or disposal or order;

(ii) both such a conviction and such a reference; or

(iii) such a conviction, such a reference and, subject to subsection (2) below, such sentence, disposal or order.

(2) There shall be no appeal against any sentence fixed by law.

(3) By an appeal under subsection (1) above a person may bring under review of the High Court any alleged miscarriage of justice ...".

Section 110 (note of appeal) provides:

"(1) ...

(a) within eight weeks of lodging intimation of intention to appeal or, in the case of an appeal under section 106(1)(b) to (e) of this Act, within two weeks of the appropriate date (being, as the case may be, the date on which sentence was passed, the order disposing of the case was made, sentence was deferred, the proposal to make a reference was made or the previous conviction was quashed as mentioned in section 106A(1)(c) or (2)(c) of this Act) (or, as the case may be, of the making of the order disposing of the case or deferring sentence) in open court, the convicted person may lodge a written note of appeal with the Clerk of Justiciary ...

...

(3) A note of appeal shall -

(a) identify the proceedings;

(b) contain a full statement of all the grounds of appeal; and

(c) be in as nearly as may be the form prescribed by Act of Adjournal.

(4) Except by leave of the High Court on cause shown, it shall not be competent for an appellant to found any aspect of his appeal on a ground not contained in the note of appeal.

...".

Section 118 (disposal of appeals) provides:

"(1) The High Court may, subject to subsection (4) below, dispose of an appeal against conviction by -

(a) affirming the verdict of the trial court;

(b) setting aside the verdict of the trial court and either quashing the conviction or ... substituting therefor an amended verdict of guilty; or

(c) setting aside the verdict of the trial court and quashing the conviction and granting authority to bring a new prosecution in accordance with section 119 of this Act.

...

(3) In setting aside, under subsection (1) above, a verdict the High Court may quash any sentence imposed on the appellant (or, as the case may be, any disposal or order made) as respects the indictment, and -

(a) in a case where it substitutes an amended verdict of guilty, whether or not the sentence (or disposal or order) related to the verdict set aside; or

(b) in any other case, where the sentence (or disposal or order) did not so relate,

may pass another (but not more severe) sentence or make another (but not more severe) disposal or order in substitution for the sentence, disposal or order so quashed.

(4) The High Court may ... dispose of an appeal against sentence by -

(a) affirming such sentence; or

(b) if the Court thinks that, having regard to all the circumstances, ... a different sentence should have been passed, quashing the sentence and passing another sentence whether more or less severe in substitution therefor,

and, in this subsection, 'appeal against sentence' shall, without prejudice to the generality of the expression, be construed as including an appeal under section 106(1)(ba), (bb), (c), (d), (da), (dc), (e) or (f) ...and other references to sentence shall be construed accordingly."

Section 124 (finality of proceedings ...) provides:

"(1) ...

(2) Subject to Part XA of this Act and paragraph 13(a) of Schedule 6 to the Scotland Act 1998, every interlocutor and sentence pronounced by the High Court under this Part of this Act shall be final and conclusive and not subject to review by any court whatsoever. ...".

Part XA is concerned with the Scottish Criminal Cases Review Commission, including references by it to the High Court. Paragraph 13(a) of Schedule 6 to the Scotland Act 1998 is concerned with appeals to the Supreme Court of the United Kingdom in respect of devolution issues.

[5] Rule 15.2(2) of the Act of Adjournal (Criminal Procedure Rules) 1996 provides that a note of appeal under section 110(1) of the 1995 Act shall be in Form 15.2-B. That Form states, among other things -

"The above-named convicted person appeals against conviction [or as the case may be] on the following grounds:- [here give full statement of all grounds of appeal]."

McIntyre

[6] In McIntyre v HM Advocate 2009 SCCR 719 a person convicted on indictment in the sheriff court appealed against both conviction and sentence. His appeal against conviction was heard in March 2005 and refused the following month. His appeal against sentence was continued. When it called in September (before two judges) the appellant moved for leave to have an additional ground of appeal against conviction received. Although it was then received, an issue subsequently arose as to whether that additional ground could competently be entertained. A court comprising three judges held that it could not. Having examined certain provisions of the 1995 Act (in particular sections 103, 106 and 118) it concluded that "... an appeal against conviction and an appeal against sentence, or other disposal, are properly to be seen as separate and distinct proceedings, although, in certain cases, they may run side by side" (para [45]). In adopting that view, based on the statutory provisions themselves, the court was reassured by the decision in McLeod v HM Advocate 2005 SCCR 736 where the court observed (para 10):

"An appeal against conviction is in its nature quite different from an appeal against a consequent sentence or other disposal. There can be no overlap of grounds between the two categories of appeal, and the appellate court's powers are separately specified in section 118. While it is true that sections 106(1)(f), 109 and 110 permit appeals in both categories to proceed in tandem, and without administrative duplication, we do not regard that fact as sufficient to assimilate the two categories or to blur their essential differences. Prima facie we think that it would be strange if the grant of leave to appeal in one category were to be understood as affecting, or a fortiori as weakening, an outright refusal of leave in the other."

The court in McIntyre then said that, the appellant's appeal against conviction having been refused in April 2005, it was, regard being had to section 124(2), not open to the court to allow consideration of the additional ground of appeal against conviction subsequently tendered. In reaching that conclusion it also found support in certain observations by Lord Justice Clerk Ross in Windsor, Petitioner 1994 SCCR 59.

[7] Before us Miss Scott submitted that the decision of the court in McIntyre was wrong; it was not coherent with the statutory provisions and unduly restricted the discretion vested in the court under section 110(4). The judges in McIntyre had failed to notice that a quorum of two judges was available under section 103(3) only in respect of an appeal under section 106(1)(b) to (e); a quorum of three was required in an appeal under section 106(1)(f). That indicated that a note of appeal under section 106(1)(f) (that is, against both conviction and sentence) was a single proceeding which was not exhausted until - if the appeal against conviction was refused - the appeal against sentence had been heard and disposed of. In the present case the application to have the proposed additional ground of appeal received had been lodged prior to sentence being dealt with. It was accordingly competent. A larger court should be convened to reconsider McIntyre.

Discussion and disposal

[8] In solemn proceedings at trial conviction and sentence are distinct stages of procedure. Except where an accused person pleads guilty, conviction occurs when the jury returns a verdict of guilty against him and that verdict is recorded. Then and only then can any question of sentence arise. In some cases sentence may be passed immediately after the plea or verdict of guilty is recorded, though in many cases the need for reports or other information will necessitate there being a significant interval between conviction and sentence.

[9] In solemn appellate proceedings there has always been a distinction between appeals against conviction and appeals against sentence. Section 1 of the Criminal Appeal (Scotland) Act 1926 dealt, under paragraphs (a) and (b), with appeals against conviction and, separately under paragraph (c), with appeals against sentence. That distinction was repeated in section 228 of the Criminal Procedure (Scotland) Act 1975. Section 228 (as amended by the Criminal Justice (Scotland) Act 1980) provided:

"(1) Any person convicted on indictment may appeal in accordance with the provisions of this Part of this Act, to the High Court -

(a) against such conviction;

(b) against the sentence passed on such conviction; or

(c) against both such conviction and such sentence

...".

Albeit under paragraph (c) conviction and sentence were aggregated, there is nothing to suggest that this was other than to allow for the situation where an appellant sought to bring under review both his conviction and his sentence. Although the scope of review in conviction and sentence appeals was the same (namely, "any alleged miscarriage of justice in the proceedings in which he was convicted"), the particular grounds on which he could challenge his conviction were necessarily different from those on which he might challenge his sentence. The options for disposal of appeals against each were necessarily different and were dealt with in different subsections (compare section 254(1) (as amended) with section 254(3) (as amended)).

[10] The same broad pattern can be seen in the Criminal Procedure (Scotland) Act 1995 - see section 106(1) and section 118(1) and (4). The provision first introduced by section 43(1) of the Criminal Justice Act 1995 (now section 103(3) of the Criminal Procedure (Scotland) Act 1995), cannot, in our view, be seen as modifying the essential distinction between an appeal against conviction and an appeal against sentence. That a quorum of two was by section 103(3) restricted to appeals against sentence and other disposals only, thus leaving the quorum as three for appeals against conviction only and against conviction and sentence (under section 106(1)(a) and (f) respectively), does not import that the latter was an indivisible process, the elements of which were not distinguishable.

[11] The essential issue of construction posed in this application is of section 110(4) of the Criminal Procedure (Scotland) Act 1995 (formerly section 233(3) of the 1975 Act (as amended)). Section 110(4) provides:

"Except by leave of the High Court on cause shown, it shall not be competent for an appellant to found any aspect of his appeal on a ground not contained in the note of appeal."

Where the note of appeal contains only grounds directed against conviction "his appeal" is necessarily an appeal against conviction only. When the note of appeal contains only grounds directed against sentence or some other disposal, "his appeal" is necessarily an appeal against sentence or other disposal only. Where the note of appeal contains grounds directed against conviction and against sentence, these grounds will of their nature be distinct. The appellant will, in essence, have two appeals - one against conviction and the other against sentence - notwithstanding that the grounds are contained in a single document. If leave is granted to found any aspect of his appeal on a ground not contained in the note of appeal, that leave will necessarily relate to review of his conviction or to review of his sentence (or other disposal). The two are distinct.

[12] It is a feature of solemn appeals that appeals against conviction and sentence may be dealt with in stages - in particular, grounds of appeal against conviction may be heard and disposed of before the appeal against sentence, if necessary, is addressed. That is what happened with this appellant's appeal. After sundry procedure, including steps taken to ensure that all the grounds which were sought to be advanced against conviction were addressed, the court on 16 May 2008 refused the appellant's appeal against conviction. The finality of that order as regards conviction was emphasised by the addition in the interlocutor of the words "and Decerned". The appellant's appeal against conviction was by that interlocutor exhausted. Subject to any reference by the Scottish Criminal Cases Review Commission or an appeal to the Supreme Court on any live devolution issue, that interlocutor was final and conclusive (section 124(2)).

[13] It is, in our view, implicit in section 110(4) that there is, at the stage when it is invoked, a "live" appeal. Where the note of appeal contains grounds of appeal against both conviction and sentence and the appeal against conviction has been determined, there is no live appeal against conviction, albeit the appeal against sentence may not have been disposed of. In such circumstances it is not open to the court to grant leave under section 110(4) in respect of any matter relating to conviction. This application must accordingly be refused.

[14] It should be added that, in any event, it is for another reason highly doubtful whether the court can now entertain any application under section 110(4). The appellant's appeal against sentence was finally disposed of on 2 February 2011. Notwithstanding that an Application in the terms earlier narrated had been lodged with the Justiciary Office a few days earlier, it had not been dealt with on or prior to 2 February. In these circumstances there is, on no view, a live appeal with respect to which leave could be granted under section 110(4).