APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Osborne Lord Wheatley	[2009] HCJAC 27 Appeal No: XC229/03 OPINION OF THE COURT delivered by LORD OSBORNE in APPLICATION FOR LEAVE TO APPEAL TO THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL by NAT GORDON FRASER Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Act: Shead, C.A. Smith; John Macaulay & Co., Glasgow

Alt: Ogg, Q.C., A.D., G.S. Balfour; Crown Agent

24 March 2009

[1] The appellant, Nat Gordon Fraser, stood trial at Edinburgh High Court in January 2003. He faced an indictment libelling a charge of conspiracy, murder and attempt to defeat the ends of justice. The trial began on 7 January 2003 and ended on 29 January 2003 with the conviction of the appellant on the indictment, as amended. Subsequently, the trial judge imposed a sentence of life imprisonment upon the appellant, fixing the punishment part of the sentence at one of 25 years.

[2] By a Note of Appeal lodged on 18 December 2003, the appellant appealed against both conviction and sentence on the extensive grounds set forth in that document. There followed procedure, during which the grounds of appeal originally stated were modified and thereafter superseded by others. The appellant's appeal came before this court for a hearing on 13 November 2007. At the outset of the appeal hearing, senior counsel for the appellant moved the court to allow late amended and consolidated grounds of appeal, document 1(d) of the appeal process, containing an additional ground of appeal, paragraph 2.2, to be received late. He also moved the court to allow the late reception of a devolution issue minute. The court, having heard the Advocate depute, did not allow the additional ground of appeal, paragraph 2.2, to be received, but was otherwise content that the consolidated grounds of appeal should be received. The Advocate depute having opposed the reception of the devolution issue minute, the court refused the motion for its reception. It should be explained that no explanation was tendered to the court then as to why the devolution issue minute was sought to be lodged at that time. The court decided that the devolution issue minute should not be received, upon the ground that it came too late, that no cause had been shown as to why it should be received at that stage in terms of Rule 40.5 of the Act of Adjournal (Criminal Procedure Rules) 1996 and that the matters sought to be raised in it were adequately covered by the existing grounds of appeal.

[3] On 16 November 2007, during the course of the appeal hearing, the court allowed the lodging of further amended consolidated grounds of appeal, which are contained in document 1(e) of the appeal process. The contents of that document reflected the grounds which the court had previously allowed to be lodged. On that occasion, senior counsel for the appellant advised that he was not to insist upon grounds 3, 4 and 5 in that document. Thus, grounds 1 and 2 set out therein constituted the focus of the appeal. It will be seen that ground 1 deals in detail with new evidence which was said not to have been available at the trial. Ground 2 deals with the Crown's alleged failure to disclose to the defence prior to or at the trial the materially significant information said to have been provided to the Crown by one Police Constable Lynch, at precognition on or around 3 July 2002 at the procurator fiscal's office, Elgin. The details of that information are set forth in ground of appeal 1.

[4] The devolution issue minute which the court did not allow to be received on 13 November 2007 is document 21 of the appeal process. After making reference to Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and section 57(2) of the Scotland Act 1998, in paragraph 5, the minute states as follows:

"That the minuter intends to raise a devolution issue within the meaning of Schedule 6 of the Scotland Act 1998 on the following grounds:

i That the Crown was in possession of information from Police

Constable Neil Lynch, regarding the presence of Arlene Fraser's rings in the bathroom at the locus at the time of her disappearance, prior to and at the time of the trial of the minuter.

ii That said information was material evidence, which in the context of

the trial, tended to undermine the Crown case and would have been of material assistance to the proper preparation or presentation of the minuter's defence.

iii That the Crown was under a duty to disclose to the defence any

information which undermined its case.

iv That, in breach of its duty, the Crown failed to disclose said

information to the defence, thereby infringing the minuter's rights under Article 6(1) of the Convention.

v That, irrespective of its duty to disclose said information, the Crown

was under a duty to present the case against the minuter on an accurate premise, and in a manner which was consistent with the minuter's right to a fair trial. In making the cornerstone of its case the re-appearance of Arlene Fraser's rings on 7 May 1998 and the incriminatory inferences to be drawn from that fact in circumstances where it knew or ought to have known of a body of evidence which would render the invitation to a jury to draw such inferences inappropriate, the Crown infringed the minuter's rights in terms of Article 6(1) of the Convention.

vi That accordingly the conviction should be quashed."

[5] It should be noted that the material contained in the devolution issue minute, which we have quoted, is also to be found in the version of the grounds of appeal which formed the focus of the appeal hearing, in particular grounds 1 and 2. Those matters were the subject of extensive argument during the course of the appeal hearing, which came to an end on 6 December 2007.

[6] On 6 May 2008, the court refused the appellant's appeal against conviction on the grounds set forth, particularly in the Opinion of the Lord Justice Clerk in which the other members of the court concurred. The Opinion of the Lord Justice Clerk dealt in detail with all of the matters set forth in the grounds of appeal, as they were finally presented to the court. As already indicated, these included the matters contained in the devolution issue minute which the court declined to receive on 13 November 2007. It should be explained that, on 6 May 2008 the appellant's appeal against sentence was continued to a further diet for its consideration. It was later abandoned.

[7] On 25 August 2008, Mr Macaulay of Messrs John Macaulay & Company, solicitors, wrote on behalf of the appellant to the Clerk of Justiciary in the following terms:

"I act for Mr Fraser whose appeal against conviction was refused on 6 May 2008. The appeal against sentence was abandoned subsequently.

I have now been instructed to seek leave to appeal against the refusal to allow the minute seeking to raise a Devolution Issue as per the interlocutor of 13 November 2007 and I hereby do so. I understand that there is no particular form for the purpose."

[8] A reply was sent to that letter, by an officer in the Justiciary Office, dated 26 August 2008, which was in the following terms:

"I refer to your letter dated 25 August 2008 in which you requested leave to appeal against the refusal to allow a Devolution Minute as per Court Interlocutor dated 13 November 2007.

As far as we are aware, as the Appeal against Conviction was refused and the Appeal against Sentence abandoned, there is no way to competently appeal the decision made on 13 November. That would also seem to reflect the terms of section 124 of the Criminal Procedure (Scotland) Act 1995. However, if you feel that there is a way that this may be done, we should be obliged if you could submit to us an application citing authorities, sections of the Act etc. in order that we may place this application before the Lord Justice General for consideration."

Subsequently, by letter dated 8 September 2008 Mr Macaulay wrote again to the Clerk of Justiciary in the following terms:

"I refer to my correspondence of 25 August and your reply of 26 August. I think there has been a misunderstanding.

What I sought in my correspondence of 25 August was leave to appeal the refusal to allow the minute seeking to raise a devolution issue as per the interlocutor of 13 November 2007. My understanding of such matters is that is that (sic) the appellant submits a motion to the court asking the court to fix a hearing to consider the question of whether leave to appeal to the Judicial Committee of the Privy Council against the determination of a devolution issue in the lower court should be granted. I hereby do so. The appellant is seeking to exercise his right of appeal under the Scotland Act 1998 rather than under any provision of the Criminal Procedure (Scotland) Act 1995. The Devolution Issue sought in this case was determined on 13 November 2007 and I refer to the case of Mills v HM Advocate 2002 SCCR 860 per Lord Hope of Craighead at page 871 (34)."

[9] On 31 October 2008 the appellant's application for leave to appeal to the Judicial Committee of the Privy Council came before us. Counsel for the appellant recalled that, on 13 November 2007, the court had declined to receive the devolution issue minute tendered on behalf of the appellant. In relation to that decision, counsel submitted that certain observations in McDonald and Others v HM Advocate 2008 SCCR 954 were relevant. In paragraph [16] of the opinion of Lord Hope of Craighead, his Lordship had observed that a decision by two or more judges of the High Court of Justiciary not to hear and determine a devolution issue that has been brought before it could be treated as a determination of the issue for the purposes of paragraph 13 of Schedule 6 to the Scotland Act 1998. There followed discussion concerning what was intended to be the subject-matter of the proposed appeal. Counsel for the appellant variously stated that he was seeking to appeal against the determination of the appeal under section 106 of the Criminal Procedure (Scotland) Act 1995, announced on 6 May 2008, and also that he sought to appeal against the decision of the court on 13 November 2007 to decline to receive the devolution issue minute. Counsel appeared eventually to settle upon a submission that he was seeking to appeal against the court's refusal to receive the minute on 13 November 2007. However, he specifically stated that the devolution issue which it was intended to ventilate before the Judicial Committee of the Privy Council was that contained in the minute that the court had declined to receive and concerned the action of the Lord Advocate in seeking a conviction of the appellant on a false basis. That had deprived the appellant of his right to a fair trial. That was an act incompatible with Article 6(1) of the Convention and hence was ultra vires in consequence of the provisions of section 57(2) of the Scotland Act 1998.

[10] The Advocate depute opposed the granting of leave to appeal. He said that the decision of the court on 13 November 2007 had been a discretionary exercise and the course taken by the court was wholly justified. The tendering of the devolution issue minute was effected at the latest possible stage, namely on the first day of the appeal hearing. The appellant's advisers had then delayed until 25 August 2008 to seek leave to appeal against the decision made on 13 November 2007. No justification whatever had been stated for that delay. However, the Advocate depute accepted that, on the basis of what had been said in McDonald and Others v HM Advocate the Judicial Committee of the Privy Council might treat the decision of 13 November 2007 as itself the determination of a devolution issue.

[11] The Advocate depute submitted that the fairness of the trial had to be judged in the light of the whole process, including, in particular, the appeal proceedings. The whole issue of disclosure and the way in which the case against the appellant had been presented to the jury had been explored exhaustively in the course of the appeal against conviction. It could not be said that those matters had not been the subject of full judicial consideration. It followed that the appellant's trial overall had been fair. In any event, what was anticipated on 13 November 2007 was that all matters referred to in the devolution issue minute would be dealt with in the course of the appeal under section 106 of the 1995 Act, which they were. The appellant was not now contending that, in some way, the determination of the appeal under section 106 of the 1995 Act itself involved a breach of Article 6(1) of the Convention. In the whole circumstances, leave to appeal should be refused.

[12] In reply, counsel for the appellant asserted that an issue of general public importance had been raised, as the submissions to the court demonstrated. Accordingly, leave to appeal should be granted.

[13] Having considered the matters that were put before us during the course of the hearing on 31 October 2008, we have come to the conclusion that the appellant's application for leave to appeal to the Privy Council should be refused as incompetent. The identification of the devolution issue which, it seems, must now be deemed to have been determined, in our opinion necessarily depends upon the content of the devolution issue minute tendered and rejected on 13 November 2007. That is a necessary consequence of the observations of Lord Hope of Craighead in paragraph [16] of his opinion in McDonald and Others v HM Advocate. It follows from that that, in any appeal for which leave might be granted by us, the appellant would seek to canvass exactly the same issues as were canvassed in the course of his appeal under section 106 of the 1995 Act, but this time before the Judicial Committee of the Privy Council. What decision they might or might not reach in any such appeal can only be a matter of conjecture at this stage. However, what is clear is that the allowance of leave for such an appeal as this would authorise a procedure under which the Judicial Committee, in the circumstances of this case, would, quite simply, review the merits of the decision reached by this court on 6 May 2008. Whatever was contemplated by Parliament in enacting paragraphs 1(c) and 13 of Schedule 6 to the Scotland Act 1998, we do not think that it was intended to achieve such a result as that. Had it been the intention of Parliament to introduce, for the first time, a right of appeal to the Privy Council against the merits of decisions by the High Court of Justiciary determining appeals to it under section 106 of the 1995 Act, we are of the opinion that it would have made that intention clear. That has not been done.