APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lord Clarke Lord Mackay of Drumadoon	[2009] HCJAC 26 XM1/09 OPINION OF THE COURT delivered by LORD OSBORNE in PETITION TO NOBILE OFFICIUM by JOHN JOSEPH McCARTHY Petitioner; Against HER MAJESTY'S ADVOCATE Respondent _____________

Act: Farquarson

Alt: Prentice, solicitor, Q.C., AD; Crown Agent

10 March 2009

[1] There is before the court a petition at the instance of John Joseph McCarthy to the Nobile Officium of the High Court of Justiciary. In paragraph 1 of that petition the details of the petitioner's conviction on 22 March 2004 of various offences is narrated. Following the conviction, an appeal was taken, details of which are also the subject of averments in that paragraph. The culmination of this was that on the 26 and 27 August 2008 the appeal was argued. At the outset of the appeal, the petitioner was represented by senior and junior counsel. During the course of the presentation of the appellant's case, it became apparent that the appellant was dissatisfied with the manner of his representation. A short adjournment followed his indication of that dissatisfaction. Thereafter counsel appearing on behalf of the petitioner sought leave to withdraw from acting in the appeal. Leave to withdraw was granted to counsel and, as a fact, thereafter the petitioner represented himself, the appeal hearing coming to an end on 27 August. At the advising on 2 October 2008 the appeal against conviction was refused.

[2] In the present petition, in particular in paragraph 2, it is averred that, on the date when counsel withdrew from acting, the petitioner was not given the opportunity to seek alternative representation, nor any time to prepare his submissions to the court. No enquiry was made of the petitioner as to his willingness or ability to proceed in the absence of any legal representation. There follow a series of averments in the petition in which it is contended that the appeal hearing and decision has become flawed on account of what occurred on the date in question.

[3] The Crown have lodged answers to the petition and it is to be noted that, as regards paragraph 2 of the petition, the averments made by the petitioner are denied. In the course of their answers, the Crown go on to make other averments about what occurred on the occasion when the counsel representing the petitioner withdrew. We have heard some discussion about the factual background to the petition and, in particular, whether there is, in relation to material matters, any conflict of fact between the averments of the petitioner and the averments of the Crown. We have come to think that there may be such a conflict of fact in respect of certain matters and furthermore certain aspects of what occurred on 27 August 2008 are not wholly clear.

[4] Before this court goes on to consider the legal aspects of the petition we consider that any conflict of fact or obscurity regarding fact should be resolved. Accordingly we have decided to ask the court that dealt with the appellant's appeal to furnish this court with a report on the details of what occurred on 27 August 2008, when counsel withdrew from acting for the appellant. We would expect that that report would deal with what is averred in the petition and answers as a whole, including, in particular, what is averred in paragraph 2 of the petition and what is said in answers 2 and 6 of the Crown's answers.

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