Johor Javeed Mirza v. Her Majesty’s Advocate [2015] HCJAC 87

Application for permission to appeal to the United Kingdom Supreme Court:- On 4 November 2014, following a trial on indictment at Glasgow Sheriff Court, the applicant was found guilty of assault with intent to rape. Thereafter he was sentenced to three years imprisonment. The trial sheriff in his report to the appeal hearing described the circumstantial case against the applicant as a powerful one. In his appeal it had been contended on behalf of the applicant that there had been defective representation in relation to various aspects of the preparation and presentation of his defence. In addition, it had been contended that the applicant had been denied a fair trial because the Lord Advocate had “restrained” his funds which were substantial and the applicant had thus been denied the opportunity to instruct senior counsel to conduct his defence. On 10 April 2015, leave to appeal was refused by a judge of the High Court at the first sift with detailed reasons being provided in relation to the various sub-headings relating to the defective representation ground and consequently any additional funds would have been of little assistance given the lack of merit in the defective representation argument. On 4 June 2015 the court, following receipt of an opinion from senior counsel, refused leave to appeal at the second sift and noted that the decisions taken in the preparation of the case were made for considered and tactical reasons and they did not amount to an arguable case that a miscarriage of justice had occurred. Here the applicant sought leave to appeal to the United Kingdom Supreme Court on the basis that the sift judges had determined a compatibility issue by refusing leave to appeal and had therefore erred in that decision. The court noted here that it was now being stated for the first time that a compatibility issue had been raised in the sheriff court proceedings about the restraint of the applicant’s funds back on 13 June 2014. The Crown invited the court to refuse the application on the basis that it did not raise a matter of general public importance. Here the court refused leave to appeal. The court considered that the Lord Advocate did not present any petition for a restraint order as it was specifically the Scottish Ministers that applied for the prohibitory and recovery orders in relation to the applicant and his property. In addition, the court observed that by simply opposing a motion by the applicant to release funds the Lord Advocate cannot “restrain” the applicant’s property nor prevent the court releasing funds. The court observed that an order was made by the Court of Session and the court repeatedly refused the applicant’s motions for the release of funds. As a consequence the court here considered that there was no act of the Lord Advocate which could raise a compatibility issue contending a breach of Article 6. The court went on to note that if there had been any breach it ought to have been raised in the earlier Note of Appeal and there had been no mention that any compatibility issue had been raised and refused in the sheriff court proceedings. The court observed that no additional funds would have made any difference to the case or the conduct of the applicant’s defence particularly in light of what was described as an overwhelming and powerful circumstantial case.