Mark Meechan v. Procurator Fiscal, Airdrie [2019] HCJAC 13

Petition to the Nobile Officium:- Here it was contended on behalf of the petitioners that there was an error in the legislation which created the Sheriff Appeal Court as the power, which had previously existed in summary cases, to seek permission to appeal a compatibility issue from the High Court to the United Kingdom Supreme Court, was accidentally omitted in relation to cases in which leave to appeal to the SAC from the verdict of a sheriff had been refused. It was submitted that the absence of such a power amounted to a lacuna which ought to be filled by the use of the nobile officium to the High Court by granting or refusing permission to appeal the sift decision of the SAC, not to the High Court as the final criminal court of appeal in Scotland, but directly to the Supreme Court of the United Kingdom. It was submitted on behalf of the petitioner that use of the nobile officium by him was to provide him with a remedy in extraordinary and unforeseen circumstances for the purposes of preventing injustice and to provide for the proper administration of justice. It was submitted that there was no statutory right of appeal from the second sift decision of the SAC to the UK Supreme Court and that it was incompetent for the petitioner to appeal from the second sift decision of the SAC to the High Court as the petitioner had never been a party to an appeal before the SAC. Further, an appeal lay to the UK Supreme Court only against a determination by a court of two or more judges of the High Court and the petitioner requested that the High Court either grant, or refuse to grant, leave to appeal from the SAC sift decision to the UK Supreme Court. There had been, prior to the formation of the SAC, second sift decisions which had been taken by the High Court and could be appealed to the UK Supreme Court (Cadder v HMA 2011 SC (UKSC) 13) and these included sift decision in summary cases. Following the creation of the SAC the petitioner was now prevented from appealing to the High Court by the statutory appeal structure and also to the UK Supreme Court because of the terms of section 288AA of the Criminal Procedure (Scotland) Act 1995 which had remained unchanged despite the formation of the SAC. On behalf of the Crown it was submitted that the circumstances where an appeal to the Supreme Court of the UK was available in relation to the determination of a compatibility issue was defined in statute, namely, where there had been a determination of an issue by two or more judges of the High Court in terms of section 288AA(1) of the 1995 Act. In the present case the matters relied upon as compatibility issues had not been determined by a court of two or more judges of the High Court and, as such, it was not competent to grant leave and there was no lacuna that required to be filled. Here the court refused the prayer of the petition as incompetent and irrelevant. The court reiterated that the nobile officium of the High Court is a general power of superintendence which is available to deal with circumstances which are extraordinary or unforeseen and where no other remedy is provided for by law. The court stated that it is not available to be used to create a different appellate structure where there is already one provided and there was no lacuna to be filled. The only appeal from the sheriff to the SAC requires leave of the SAC at first or second sift as provided by statute. The court noted that there is no appeal from sift decisions of the SAC to the High Court as there has been no appeal to the SAC to which a person has been a party in terms of the legislation. The purpose of the Courts Reform (Scotland) Act 2014 was to prevent summary criminal cases proceeding, in the first place, to the SAC unless they meet the sifting procedure test in the SAC and, secondly, to the High Court unless the second appeals test was met. The court noted that the present case fell at the first of those two hurdles, that no lacuna existed and that there are no extraordinary or unforeseen circumstances present. The court observed that halting appeals in summary cases at the stage of the sift in the SAC is a wise and efficient use of judicial resources particularly in light of the volume of summary prosecutions. The court considered that an absolute right to seek leave to appeal to either the High Court or the UK Supreme Court when a summary case has been sifted out of the system by the SAC is neither necessary nor desirable.