[2014] HCJAC 115



Lord Justice General

Lady Smith

Lady Clark of Calton



delivered by LADY SMITH









For the Applicant:  C M Mitchell; John Pryde & Co, SSC, Edinburgh

For the Crown:  Prentice QC (Sol Adv), AD; Crown Agent

23 October 2014


[1]        On 1 March 2005, the applicant was convicted, along with a co-accused, of the murder of a 91 year old woman, in her home in Galston.  His two appeals against conviction have both been refused by this court.


The applicant’s appeals
[2]        On 26 March 2010, this court refused the applicant’s appeal against conviction on grounds which included the failure of the Crown to disclose a police statement of Sheena Orr; we refer to the Opinion of the Court ([2010] HCJAC 31) for the evidential background, the submissions of parties, the conclusions of the court and reasons for refusing the appeal.

[3]        On 30 June 2010, the applicant sought leave to appeal to the Supreme Court; leave was refused.  Permission was sought from the Supreme Court; it too was refused, on 18 November 2011.

[4]        The applicant then applied to the Scottish Criminal Cases Review Commission (“the Commission”) for review of his conviction.  The Commission referred his case to this court on three grounds: (i) the failure of the Crown to disclose police statements of Charles Keer; (ii) the reliance on a piece of evidence from one of the applicant’s police interviews which took place without his having had prior access to legal advice: Cadder v HM Adv [2010] UKSC 43; and (iii) the failure of the trial judge to direct the jury in relation to dock identification.

[5]        Regarding the failure of the Crown to disclose Sheena Orr’s police statement, the Commission, referring to the opinion of the court in the first appeal, said – at paragraph 32 of its reasons – that it saw “no reason to disagree with the conclusions of the High Court in this regard”.  The Commission noted an argument for the applicant which was, in effect, that the ground relating to the non-disclosure of Sheena Orr’s statement required to be revisited in the light of the non-disclosure of Charles Keers’ statements but was not persuaded that it had any merit (see: Commission’s reasons paras [50] and [51]).  The current application fails to acknowledge this.  It also suggests that this court concluded that disclosure of Mr Keers’ statements might have given greater emphasis to Sheena Orr’s evidence but that is not correct;  the passage referred to (at para [21] of the Opinion of the Lord Justice General) is a summary of counsel’s submissions.

[6]        The three grounds referred by the Commission were grounds which, as explained in paragraph 3 of the Opinion of the Lord Justice General of 29 August 2014, senior counsel had sought to lodge on the morning of the hearing of the applicant’s first appeal (3 November 2009).  The court refused to receive them for the reasons explained in its opinion: Patrick Doherty v HM Adv [2010] HCJAC 81 at para [6].

[7]        No devolution issue minutes were lodged in relation to any of the grounds either before or after 3 November 2009.

[8]        On 29 August 2014, this court refused the applicant’s further appeal against conviction. The grounds before the court were those referred by the Commission.  We refer to the Opinion of the Lord Justice General ([2014] HCJAC 94) in that second appeal for the details of the submissions of parties, the conclusions of the court and the reasons for refusing the appeal.


The present application

[9]        The applicant now seeks leave to appeal to the Supreme Court against the refusal of his second appeal.  He advances four grounds of appeal based on: (i) the non-disclosure of a police statement by Sheena Orr; (ii) the non-disclosure of police statements by Charles Keers;  (iii) reliance on evidence of one of the applicant’s police interviews : Cadder v HM Adv; and (iv) misdirection by the trial judge, by omission, in relation to dock identification.

[10]      The first three grounds of appeal are presented as being convertible devolution issues.  It is not entirely clear but the argument seems to be that the fact of their having been referred by the Commission and considered by this court, renders them such, notwithstanding the clear authority to the effect that a determined devolution issue cannot be converted into a compatibility issue by virtue of a reference from the Commission: Cadder v HM Adv paras [11]–[12]; Carberry v HM Adv [2014] JC 56 at paras [52]–[53]).  There also appears to be a subsidiary argument to the effect that the non-disclosure and Cadder grounds in fact raised legal arguments under article 6, which was breached and, accordingly, when considering whether or not a miscarriage of justice has occurred the test relevant to a devolution or compatibility issue, as set out in McInnes v HM Adv 2010 SCCR 286, ought to have been applied, rather than that set out in Brodie v HM Adv 2013 JC 142.  That is an argument which was not presented to this court. To the contrary, counsel’s submissions were to the effect that either test was appropriate and no distinction needed to be drawn between them.

[11]      The fourth ground was not, it is accepted, a convertible devolution issue at the time of the appeal.  However, it is said, without reference to authority, that by the time this court was determining the matter in the second appeal, it was de facto determining a compatibility issue because it was deciding whether or not a public authority had acted contrary to article 6 of the convention.  So, a question arises, it is said, as to whether or not the McInnes test ought to have been applied.  Likewise, that is an argument which was not presented to this court.



[12]      In our opinion, this application fails because this court did not, in the second appeal, determine any compatibility issues and there can be no competent appeal to the Supreme Court in the absence of the determination by this court of a compatibility issue (Fallon v HM Adv 2001 SC(PC) 105;  Johnstone v HM Adv 2013 HCJAC 129).  Any rights that the applicant had to raise compatibility issues before this court were extinguished before 22 April 2013, as explained in the Opinion of the Lord Justice General of 29 August 2014 at paras [28]-[29].  None of the grounds argued in the appeals became devolution issues or compatibility issues by virtue of their subject matter also happening to have been apt for consideration as art 6 matters.

[13]      Insofar as the matters raised in the grounds of appeal might have become convertible devolution issues, they were determined when the court refused to entertain them at the start of the first appeal hearing: Patrick Docherty v HM Adv; Cadder v HM Adv at paras [11]–[13].  We do not read any of Lord Hope of Craighead’s observations in McDonald v HM Adv [2008] UKPC 46 - paragraphs 14 and 15 of which are relied on by the applicant as demonstrating that the present application is competent - as being to contrary effect.  His observation that the fact that the High Court had refused to entertain a ground of appeal did not prevent the Supreme Court considering whether or not to grant special leave is beside the point; he was not addressing the question of whether or not a devolution issue within such a ground was determined before 22 April 2013. 

[14]      In fairness to counsel, since the application relies on what are referred to as de facto breaches of art 6 and de facto determination of compatibility issues, it appears to be accepted that there were no compatibility issues actually before this court in either appeal.  That demonstrates, however, that nothing in the application can properly be viewed as a submission that this court erred in law on a compatibility issue.  The application, accordingly, fails to meet one of the essential requirements for the grant of leave as set out in Macklin v HM Adv [2013] HCJAC 41. 

[15]      In these circumstances, the second requirement - that the application raises an issue of general public importance - does not arise but we would, in any event, have concluded that it does not do so.  It is contended that there is such an issue because of “observed tension” between the application of the McInnes test and the Brodie test.  That is not, we consider, sufficient, particularly where counsel did not submit that there was any material distinction between the two tests, in the appeal before us.

[16]      We therefore refuse the application.