APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lady Paton Lord Bracadale	[2013] HCJAC 136 XC202/13   NOTE OF REASONS   issued by LORD CARLOWAY, the LORD JUSTICE CLERK   in the APPLICATION FOR LEAVE TO APPEAL TO THE SUPREME COURT   by   FRANK CARBERRY   Applicant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _____________

Applicant: S M McCall; A Kelly, Solicitor Advocate; John Pryde & Co (for Taylor & Kelly, Coatbridge)

Respondent: J Bain, AD; the Crown Agent

 

9 October 2013

[1] This is an application for leave to appeal to the United Kingdom Supreme Court in respect of the court's decision to reject a reference from the Scottish Criminal Cases Review Commission in respect of a conviction of the appellant on 17 May 2006.

[2] The fundamental problem which the court has with the proposed grounds of appeal is that they do not reflect properly what the decision of the court actually was. That decision was simply that the information presented to the court by the appellant fell well short of the standard required before the court would contemplate instructing a judicial enquiry into the happenings in a jury room over seven years ago (Opinion, para [37]). When the information was analysed, even with a mild degree of rigour, it could be seen that it was quite inadequate, given that it amounted to no more than a statement from one juror that another juror had found unspecified information about the appellant on the internet.

[3] Contrary to the position in Remli v France (1996) 22 EHRR 253, which was founded upon at the oral hearing on the application for leave, at the appeal hearing, the court looked at all the material placed before it to see what that material demonstrated. At the hearing for leave the court was criticised for not making further enquiries of its own in relation to a number of matters. However, the court does not normally take on an inquisitorial role. It relies upon parties to place before it such information as they desire to support or refute the stated grounds of appeal. It had already provided parties with a Note detailing what the court wished to be addressed upon. As the court found (para [24]), all that these grounds, as extensively changed during the appeal process but shorn of illustrative content, ultimately stated was that a juror "found information about the appellant on the internet during the currency of the trial".

[4] The court did go on to consider apparent bias. It did not, however, apply "the test for apparent bias under A6" (see grounds of appeal 1(i) to (iv)). It applied the test set out by the House of Lords in Helow v Secretary of State for the Home Department 2009 SC (HL) 1, following Porter v McGill [2002] 2 AC 357. It understood that the test under domestic law was compliant with Article 6 and, indeed, that it may present a lower threshold for complaints than that set out in the Convention jurisprudence.

[5] Contrary to what is said in the proposed grounds of appeal, the court did not, for example, consider that a violation of the requirement for apparent impartiality could only result in the event of the factors set out in grounds of appeal 1(i) [1] to [4], nor did it consider that in all cases the directions given to jurors were a sufficient safeguard against apparent bias. It did not state that an accused person could not argue that he had not had a fair trial if he did not make a pre-trial submission relative to prejudicial publicity.

[6] In deciding to reject the reference, the court applied the "exceptional case" test set out in RM v HM Advocate (No.1) 2012 SCCR 691. Although it identified certain errors on the part of the SCCRC, it nevertheless considered the whole reference and determined, for itself, whether it was, in terms of the statutory test, in the interests of justice that the appeal should proceed (para [34]). The imposition of such a test was not criticised as breaching Article 6. The court was not moved to request supplementary reasons from the SCCRC. It was merely submitted that the court could do so. The court did not consider that the product of such a course could have altered its view.

[7] The propositions advanced in grounds of appeal 2, 3 and 4 also do not reflect what the court decided. That was, simply, that the applicant could not convert something into a compatibility issue which could not have been raised as a devolution issue prior to the commencement date of section 288ZA. The court did not state that a determined devolution issue could not be raised in a SCCRC reference. It said that it could not be resurrected under the guise of a "compatibility issue", thus applying that term retrospectively to events which occurred before the introduction of such issues and which could never have been raised as devolution issues.

[8] The court does not consider that a matter of public importance arises. Its decision was primarily one of fact; notably that the information presented was not sufficient to merit a judicial enquiry involving the hearing of testimony. The scope of the court's gatekeeping role, in respect of SCCRC references, is currently being debated before Parliament. The recommendation of the Carloway Review was that the gatekeeping role ought not to be retained but that the interests of justice ought to be a criterion in deciding appeals which followed a reference. The Government has expressed its support for that approach. In the circumstances of this particular case, had the matter not been dealt with as a preliminary issue (as required by the legislation), the court would have reached the same decision in practical terms at a full hearing of the appeal. It would then, having considered the same material, have declined to instruct the enquiry sought by the applicant upon the flimsy basis presented.