Lord Hamilton

Lord Reed

Lord Drummond Young

Appeal No: 75/02


delivered by LORD HAMILTON




ANDREW McWILLIAM formerly known as Peter Syme






Petitioner: C. Shead; Bennett & Robertson

Respondent: R. McCreadie, A.D.; Crown Agent

4 April 2002

[1]The petitioner was convicted on 16 December 1997 in the High Court of abduction, robbery and sexual assault. It is unnecessary for present purposes to narrate the circumstances of these offences save to observe that they were very grave and involved abduction of a young woman at knife point and her subjection over an extended period to a horrifying ordeal including, amongst other things, gross sexual abuse. The trial judge imposed a sentence of life imprisonment and in terms of section 2 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 specified fifteen years as the designated part of that sentence. He did so having regard to, among other matters, the petitioner's prior history which included a conviction for assault and rape for which he had been sentenced to ten years imprisonment and in respect of which he had been released only a few months before the instant offence.

[2]The petitioner intimated an intention to appeal against that sentence. Leave to appeal was granted but in March 1998 before the hearing of the appeal the petitioner, on legal advice, abandoned it under section 116(1) of the Criminal Procedure (Scotland) Act 1995. The legal effect was that on the relative notice being lodged with the Clerk of Justiciary the appeal was "deemed to have been dismissed by the court".

[3]The petitioner has now presented this petition to the court in which he seeks to invoke its nobile officium with a view to his appeal being re-instated. The primary basis for the application is the effect of the later decision of this court in O'Neill v H.M. Advocate 1999 S.C.C.R. 300 in relation to the assessment of the designated part of a discretionary life sentence. There is also a suggestion that, even as the law was understood in March 1998, the designated part specified by the trial judge was arguably excessive.

[4]When this petition first called the court ex proprio motu raised with counsel for the petitioner the question whether this method of proceeding was appropriate, having regard in particular to the power now vested in the Scottish Criminal Cases Review Commission under Part XA of the Criminal Procedure (Scotland) Act 1995 (as amended) at any time, and whether or not an appeal has previously been heard and determined by the High Court, to refer a case to the High Court. Mr Shead submitted that a petition to the nobile officium was both competent and appropriate. He cited McIntosh v H.M. Advocate 1995 S.C.C.R. 327. He suggested that the Commission had a substantial backlog of cases under consideration and that it would cause both unnecessary delay and greater public expense if the petitioner were required to follow that route.

[5]The Advocate Depute referred to Part XA of the Act but made no submission.

[6]The nobile officium of the High Court of Justiciary is a valuable but exceptional jurisdiction. In Anderson v H.M. Advocate 1974 S.L.T. 239 Lord Justice-General Emslie, delivering the opinion of the court, reviewed the relevant textbooks and at p.240 observed:

"These classical descriptions of the power have been accepted by this court as authoritative in all cases in which the scope of its power under the nobile officium has been called in question, and as the cases show, have been interpreted to mean that the power will only be exercised where the circumstances are extraordinary or unforeseen, and where no other remedy or procedure is provided by the law."

He then referred to two examples of the exercise of the jurisdiction and continued:

"In both of these cases the power was exercised because no procedure or remedy of any kind was available to the petitioners."

The present application in substance seeks to review the designated part of the life sentence imposed by the trial judge against the law as it now falls to be applied in light of O'Neill v H.M. Advocate. That circumstance cannot be said to be exceptional. The fact that the petitioner did not pursue his appeal to a hearing does not make it so. Although it is now suggested that the advice on which his decision to abandon was taken was unsound even on the law as then understood, it was, as appears from the petition, advice expressed by counsel in writing and on which the petitioner had been further advised by his solicitor. The somewhat special circumstances of McIntosh v H.M. Advocate in terms of the conveyance of advice are thus not replicated here. More importantly, when McIntosh was decided the provisions now contained in Part XA of the 1995 Act (as amended) were not then enacted and the court did not advert to the possibility of a reference being made to the court by the Secretary of State under the statutory provisions then in force nor to Windsor, Petitioner 1994 S.C.C.R. 59 (where it was recognised, albeit in the context of an appeal against conviction having been heard and refused, that the existence of a reference procedure excludes resort to the nobile officium). In any event the earlier statutory provisions are not identical to those now contained in Part XA and it may be that practice was also different. However that may be, there is now a procedure available to the petitioner which may result in the reference of his case to the High Court by the Commission. Where an original appeal has been finally disposed of, even where it has been deemed to have been dismissed by the court on abandonment rather than dismissed or refused following a hearing, the invocation of reference procedure appears to us to be the appropriate first step before any nobile officium jurisdiction is exercised. That may take further time and involve further expense. But these considerations do not warrant an inappropriate exercise of that exceptional jurisdiction.

[7]In these circumstances we dismissed the petition.