The finality of High Court appeals and the nobile officium

In late January there was a petition to the nobile officium by William Beck, Nat Fraser, Luke Mitchell, Colin Murphy, and Alexander Gallagher ( [2010] HCJAC 8) challenging the finality of the disposal of their cases.

Beck, who had been convicted of assault, argued that the hearing of his appeal in 1982 was at common law unfair, with particular regard to the circumstance that he did not then have the benefit of legal aid; Fraser – a convicted murderer – that he was denied a fair hearing, or the appearance of a fair hearing, as the court decided the appeal without reference to the Human Rights Act 1998; Murphy – a convicted murderer – that although the ground of appeal advanced on his behalf made no reference to the trial judge's direction on provocation, there was an arguable ground in that respect which ought to have been specified by the judges who considered his note of appeal and he was therefore denied a fair hearing; and Gallagher – who had been convicted or murder and subsequently had his conviction quashed – who objected that he had not had a fair hearing in relation to the Crown's motion for a retrial.

A bench of five judges (the Lord Justice General, Lord Kingarth, Lord Eassie, Lord Reed, and Lady Dorrian)heard the case and in an opinion delivered by the Lord Justice General gave useful guidance on the role of the nobile officium – indicating that it cannot be used to challenge the finality of a decision unless there were exceptional circumstances such as where the High Court on appeal has exceeded its powers – for example as in Hoekstra v HMA 2000 SCCR 367 where a judge was disqualified from sitting the interlocutor pronounced could be set aside; or as in Beattie, Petitioner 1992 SCCR 812, per Lord Justice General Hope at p 816 where the High Court had not acted in accordance with the relevant legislation.

The argument presented by the petitioners was that where a decision of the High Court on appeal had not been made in compliance with the European Convention on Human Rights it was unlawful, and accordingly open for review applying section 6 of the Human Rights Act 1998. However, the court of 5 judges points out that remedies under the Human Rights ACt may only be brought in the civil courts.

On whether the legislation on the finality of the decision from the High Court needs to comply with the Convention the court of five judges states at para [33] that,

"It can be acknowledged that an interlocutor which is incompetently pronounced (as in Hoekstra v HM Advocate (No.2)) is open to challenge under the nobile officium. In that case, where the circumstances were extraordinary and unforeseen, the vice went to the root of the court's jurisdiction. But the proposition that the finality of an interlocutor is dependent on it being compliant with Convention rights is more difficult. Mr Shead [counsel for the petitioners] acknowledged that a decision of the High Court in its appellate capacity which turned on the consideration and determination of a Convention issue would not be amenable to the exercise of the nobile officium – albeit it was asserted, or even if it was plain, that a "wrong view" had been taken. Something extraordinary and unforeseen in the nature, at least, of a more fundamental basic vice involving non-compliance with the Convention, – for example, fundamental non-compliance procedurally with the right under Article 6 to a fair hearing of the appeal – would, on any view, be required. This may have been the basis on which the court granted relief in the case of Niall Macdonald, 17 July 2008, unreported, in which no Opinion was issued. The same may be true of Doherty, Petitioner 2004 SCCR 63, where again no Opinions were issued but the court's interlocutor (at pages 74-5) records that the effect of the interlocutor in question (which was held to be ultra vires) was inevitably to deprive the petitioner of his right under Article 6. In McSorley, Petitioner 2005 SCCR 508 no argument was presented on the matter of competency.

[34] Section 3 of the Human Rights Act 1998 is concerned with interpretation, albeit at times radical interpretation. Mr Shead did not formulate how the terms of section 124(2) might be modified to make them Convention-compliant. Any modification would require to "go with the grain of the legislation" (Ghaidan v Godin-Mendoza, per Lord Rodger of Earlsferry at para 121 and per Lord Nicholls at para 33)."

Although the court did not require to express a view because on the facts each of the cases failed to satisfy the requirements that there be a "procedural vice".

The petitions were therefore dismissed as incompetent.