Craig Murray v. Her Majesty’s Advocate [2022] HCJAC 5

Petition to the nobile officium:- The petitioner was found to be in contempt of court by a High Court bench of three judges and he was sentenced to 8 months imprisonment. The petitioner sought leave to appeal the decision to the United Kingdom Supreme Court and permission was refused by both the High Court and the Supreme Court. Here the petitioner sought to challenge the original finding of contempt and the sentence imposed by a petition to the nobile officium. The petition challenged the court’s finding of contempt on 5 grounds relating to the merits of that decision:- (1) that the court erred in applying a test of strict liability to the offence; (2) that the court had acted unfairly in disbelieving the content of the petitioner’s affidavits, in which he stated he had not intended to breach the court order; (3) that the court erred in considering that it was sufficient that the articles would have been likely to have allowed only a section of the public to identify the complainers, rather than the public at large; (4) that the test which the court had applied was incompatible with Article 10 of the European Convention because it was insufficiently precise; and (5) that the court had acted unfairly at common law, and contrary to Article 6 of the Convention, because the finding of contempt went beyond the terms of the petition and complaint. In addition, the petitioner relied on an alleged breach of Article 10 in challenging the sentence of imprisonment. The court invited submissions on the competency of the petition. It was submitted on behalf of the petitioner that the nobile officium was a competent means of challenging a finding of contempt. It was submitted that the three judge court had been sitting as one of first instance and an appeal by using such a petition was competent. It was further submitted that the fact that the petitioner had sought permission to appeal to the UK Supreme Court was not a bar to the petition being heard. An appeal was available to the Supreme Court in terms of section 288AA of the Criminal Procedure (Scotland)Act1995, but only in relation to compatibility issues and the present petition raised broader arguments. The Supreme Court would only hear points which were of general public importance and would not be entertained if it was not of such importance even if an appellant might have a good ground of appeal. On behalf of the respondent it was accepted that a petition to the nobile officium was a competent means to challenge a finding of contempt, however, in relation to the grounds and part of the appeal relating to sentence and since these formed part of the applications for permission to appeal to the UK Supreme Court as there was an appeal available on these grounds, the present petition was incompetent. These grounds concerned whether the respondent had acted in a manner which was incompatible with a Convention right and there was an appeal process by which any such compatibility issue could be subject and was utilised by the petitioner in the present case, which process had been concluded. Here the court allowed the petition to be raised and fixed a hearing on all grounds. The court stated that generally a person who seeks to challenge a finding of contempt made by a High Court bench of three judges sitting as a court of first instance may petition the nobile officium of the High Court, however, an anomaly arises in that where a bench of three judges is involved and a compatibility issue arises, there is a parallel right of appeal, under section 288AA of the Criminal Procedure (Scotland) Act 1995. Such a parallel right may remove the avenue of a petition to the nobile officium to raise a compatibility ground because such a petition is only available where no other remedy is available. As such two routes of appeal may strictly be required where a person wished to raise some grounds which relied on the Convention and some which did not which would be impractical. Here the court considered that in circumstances like the present where there are mixed Convention and non-Convention grounds it was essential that the petitioner was able to present his appeal on all grounds to the High Court by using the petition procedure. A complicating factor, however, was that the Supreme Court refused to hear the appeal based upon the lack of arguable grounds of general public importance potentially leaving arguable grounds of appeal which were not of public importance. As such the court considered that it was bound to hear those in the petition procedure along with any common law grounds.