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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Osborne
Lord Macfadyen
Lord Marnoch
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[2006] HCJAC 34
Appeal No: MISC. 357/03
OPINION OF THE COURT
delivered by LORD OSBORNE
in
PETITION
to the nobile officium
by
DARREN HOULDSWORTH
Petitioner;
against
HER MAJESTY'S ADVOCATE
Respondent:
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Petitioner: Scott, Q.C., Leyton; Gordon & Smyth,
Glasgow
Amicus Curiae: Moynihan, Q.C.
Respondent: Bell, Q.C., A.D.; Crown Agent
14 March 2006
Background
[1] The
petitioner was convicted of indecent assault and a contravention of the Misuse
of Drugs Act 1972 and sentenced to three years imprisonment at Edinburgh High
Court on 21
November 2002. On 23 December 2002 he lodged
a note of appeal against sentence.
Subsequently, the date of the appeal, being 28 November 2003, was
intimated to the petitioner, who was advised that the appeal hearing would be
subject to the provisions of Rule 15.16 of the Act of Adjournal (Criminal
Procedure Rules) 1996, as amended by the Act of Adjournal (Criminal Appeals)
2003, which had come into force on 1 September 2003.
[2] Rule
15.16 of the Act of Adjournal (Criminal Procedure Rules) 1996, as amended,
provides, inter alia, as follows:
"(1) This rule applies to an appeal under
sections 106(1)(b) to (e) or 108(1) of the Act of 1995
listed in terms of Rule 15.1(3) (register and lists of appeals).
(2) In an appeal to which paragraph (1)
applies, the appellant shall present his case in writing.
(3) The solicitor for the appellant or, if
unrepresented, the appellant shall -
(a) not later
than 21 days before the date assigned for the appeal court
hearing, lodge a case and argument in Form 15.16;
(b) lodge with the
case and argument all documents, or a copy thereof,
referred to or founded upon in the case and argument and not
already lodged; and
(c) at the same
time as he lodges the case and argument referred to in sub-
paragraph (a) and the supporting documents referred to in
sub-paragraph (b), send a copy to the Crown or, where the Crown is the
appellant, to the respondent.
(4) The case and argument referred to in
paragraph (3) shall be signed by counsel or the solicitor advocate representing
the appellant in the appeal, or by the appellant where the appellant intends to
conduct the appeal himself.
(5) At the hearing of the appeal -
(a) the case and
argument and supporting documents referred to in
paragraph (3) shall constitute the submissions of the
appellant;
(b) unless it
otherwise directs, the Court will expect the appellant to rely
upon the case and argument without reading it over to the court;
and
(c) the appellant
may make supplementary comments to the case and
argument; and shall answer any points raised by the Court.
(6) On cause shown, the Court may permit the
appellant to introduce new information that has come to light in the period
since the case and argument was lodged. ... ".
[3] The
petitioner avers that paragraph (2) of the Act of Adjournal of 2003 purports to
amend sections 114 and 115 of the 1995 Act, whereby an appeal under those
sections is also subject to the rules contained in the Act of Adjournal of
2003. Paragraph 3 of that Act of
Adjournal, it is averred, seeks to amend Rule 15.16 of the Act of Adjournal of 1996. The result is that any sentence appeal must
be made in writing and shall constitute the submissions of the appellant. He avers that any additional submissions or
material are severely restricted. In the
petition, the petitioner claims that the Act of Adjournal of 2003 and
derivative rules are ultra vires,
unfair and oppressive in that (a) they exceed the regulatory powers granted
under section 305 of the 1995 Act; (b)
they deny the petitioner the right to an oral hearing and to effective presence
and participation in the determination of his right of appeal and as such are
incompatible with Article 6 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms.
He goes on to aver that the High Court of Justiciary has supervisory
jurisdiction over criminal procedure and any subordinate legislation issued by
the High Court. The exercise of such a
supervisory jurisdiction in solemn proceedings is said to be properly exercised
by the nobile officium of the High Court. He claims that he is accordingly under the
necessity of applying to the court for an order declaring that the Act of
Adjournal of 2003 is ultra vires and
for the appeal to proceed to an oral hearing.
In the prayer of the petition, the petitioner seeks, first, a
declaration that the Act of Adjournal of 2003 is ultra vires;
and, second, an order that the petitioner's appeal against
sentence should proceed to an oral and public hearing of submissions.
[4] When
this matter came before the court on 21 November 2003, it became apparent that the
submissions that might be made on behalf of the petitioner would not be the
subject of opposition on the part of the Crown, which did not consider that it
had an interest to oppose the petition.
In these circumstances, the court formed the view that an amicus curiae should be appointed. Accordingly the proceedings were adjourned
pending the receipt of the Lord Advocate's response to the request to him to
nominate an amicus curiae.
In due course, an amicus curiae was appointed in terms of the
procedure set out in the Memorandum of Understanding dated 23 July 1999.
Submissions for the petitioner
[5] When
the petition came before us on 9 March
2006, senior counsel for the petitioner pointed out that in the
petition a number of contentions were made.
These included the contention that the regulatory powers granted by
section 305 of the 1995 Act had been exceeded in the making of the Act of
Adjounal of 2003. It was also contended
that the effect of Rule 15.16 of the Act of Adjournal of 1996, as amended,
denied the petitioner the right to an oral hearing, which amounted to a
contravention of Article 6 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms.
However, senior counsel indicated that if the court were to take the
view that her submissions were wrong in relation to the interpretation of Rule
15.16, as amended, there would be no insistence upon the other features of the
challenge.
[6] In
developing what she had to say, senior counsel drew attention to the background
of correspondence which had preceded the making of the Act of Adjournal of
2003. In particular reference was made
to a letter, dated 25 July 2003 from the Lord Justice Clerk to the Dean of the
Faculty of Advocates, in which it was explained that it was not, and never had
been, the purpose of the then draft Act of Adjournal to remove from an
appellant the right to an oral hearing, or to impose arbitrary restrictions on
the form that that hearing might take.
Senior counsel said that she understood that the amicus curiae contended that the terms of Rule 15.16 should be read
so as to preserve the right to an oral hearing.
If that were done and that was a correct view of that rule, senior
counsel stated that she would agree to the dismissal of the petition. She accepted that Rule 15.16, as amended,
required the lodging of a written case and argument. She also recognised that, under Rule 15.16(5)(c), the appellant might made supplementary comments on the
case and argument; and was under an
obligation to answer any points raised by the court.
Submissions of the amicus curiae
[7] The
amicus curiae stated that in his view
Rule 15.16 ought to be interpreted in the light of the correspondence to which
reference had been made and, in particular, the letter from the Lord Justice Clerk
dated 25 July 2003. While it was true that certain amendments had
been made to the draft Act of Adjournal of 2003, they did not appear fully to
give effect to the intention set forth in that letter. In particular, he maintained that there
remained a tension between Rule 15.16(5)(a) and
(c). It was undoubtedly the position
that the rule required the lodging of a case and argument in advance of an
appeal hearing, which was a useful innovation, since it facilitated preparation
of the appeal and avoided the need for counsel to read documents to the court at
the appeal hearing. However, it was
important that the requirement for such a case and argument did not adversely
affect and appellant's right to an oral hearing. In all of these circumstances the amicus curiae was of the view that the
court might refuse the petition as unnecessary on the basis that the proper
interpretation of Rule 15.16 was as stated by senior counsel for the
petitioner.
The decision
[8] Following
upon the submissions for the amicus
curiae, senior counsel for the petitioner indicated that she would withdraw
the first part of the prayer of the petition in which a declaration was sought
that the Act of Adjournal of 2003 was ultra
vires. As regards the second part of
the prayer of the petition, she was content that it should be refused as
unnecessary upon the basis of the generally agreed interpretation of Rule
15.16. In these circumstances the first
part of the prayer of the petition having been withdrawn, we refused the second
part as unnecessary on the basis of the interpretation of Rule 15.16 commended
to the court by the amicus curiae. While it is recognised that Rule 15.16(5)(a) provides that the case and argument required to be
lodged under Rule 15.16(3) and (4) is to constitute the submissions of the
appellant, Rule 15.16(4)(c) plainly provides that the appellant may make oral
comments on the appeal supplementary to the case and argument required by the
earlier parts of the Rule. Thus an
appellant is not deprived of the right to make oral submissions by the
provisions of the Rule.
